ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR11-50000134
DATE: 20131120
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
DONALD WALTERS
Respondent
Alex Rourke and Stuart Rothman, for the Crown
Anthony Paas, for the Respondent
HEARD: March 19, 20, 21; April 2; September 9; October 7, 2013
McWatt J.
Ruling on
Dangerous offender application
Introduction
[1] Mr. Donald Walters was found guilty on November 29, 2011 of Criminal Harassment and four counts of failing to comply with a probation order.
[2] The Crown seeks to have Mr. Walters designated as a Dangerous Offender pursuant to section 753(1) (a)(i) or (ii) of the Criminal Code and to have him sentenced to a determinate penitentiary sentence of two years in addition to the just over three years (October 24, 2010 to present) of presentence custody he has already served. In addition, the Crown asks that a ten-year long supervision order be imposed pursuant to section 753(4) (b) of the Criminal Code.
[3] Mr. Walters, through counsel, disputes the dangerous offender designation, but agrees that the evidence on this application supports a 4-6 month sentence and a Long Term Offender designation with a supervision order for 10 years.
The Facts
[4] The facts of the predicate offences are set out in more detail in my November 29, 2011 reasons for convicting Mr. Walters of the five counts before me and my June 22, 2012 ruling on the Crown’s s. 752.1 application to have Mr. Walters psychologically assessed for a dangerous or long term offender application.
[5] In summary, however, Mr. Walters has been found guilty of following a female as she got off a bus at about 9:00 p.m. on October 24, 2010. She was alone. It was dark. Mr. Walters came out from behind a bush. There was no one else around. He followed the victim for about 2 minutes while about one foot away from her. She sped up to get away and Mr. Walters sped up to keep following. She slowed and he slowed. He did not pass. As she neared her home, he asked her for a cigarette to get her attention. When she got near the gate of her home, she turned to see Mr. Walters who had his pants open, penis erect and was masturbating. She slammed the gate on him and ran. The victim was terrified and remained so long after the offence was committed.
Mr. Walter’s Background
[6] Donald Walter is 47 years old and has almost 70 criminal convictions. There are 15 prior sexual offences, 19 violent offences and 21 prior breaches of court orders which are directly relevant to these proceedings. I have reproduced them here from Exhibit #8 on this application.
[7] The offender’s 15 prior sexual offences are as follows:
SEXUAL OFFENCES
OFFENCE
CONVICTION DATE
SENTENCE & FACTS
- Indecent Act
September 11, 2000
Suspended sentence & 1 year probation
54 days Pre-Sentence Custody (PSC)
The complainant, a 19-year-old female, exited a street car on her way to work and soon noticed the offender following her. He was walking very close. When she got to work, the offender got very close to her and crowded her against the door. She was afraid and felt intimidated. He asked her for the time but did not back away from her. She was afraid that he was going to grab her. When she looked down to see where his hands were she noticed that the accused had his penis in his hand and was masturbating. The complainant quickly opened the door, got inside and locked it. The accused backed away from the door but did not leave. He returned to the door and started knocking and peering in. The complainant hid from view thinking that he might leave. When she returned he was still there. He took a quick look to see if anyone was watching and then took out his penis and started masturbating again. The complainant called the police. The offender began to pound on the door heavily. On arrest he admitted having the urge to open his pants from time to time.
Indecent Act
Indecent Act
August 7, 2001
60 days & 2 years probation concurrent
23 days PSC
No further information available at this time.
Exposure to Person Under 14 Years
Indecent Act
September 6, 2002
4 months conditional sentence order on each charge, consecutive & 2 years probation4 months PSC
The offender approached an eleven-year-old girl on her lunch recess at a plaza. He repeatedly asked her for her name, while he touched her stomach. When his hands moved toward her breasts she moved away and went to a store where her friends were located. The offender then approached a ten-year-old girl and asked for the time. The girl’s twin sister saw the offender unzip his pants and expose himself. The girls ran home. He followed them. The girls hid on the fifth floor before taking the elevator to their apartment on the thirteenth floor where they found the accused lying on the floor in front of their apartment. The girls got the superintendent who directed the offender to leave the building. By the time he returned to his office, there was another complaint from another tenant that the offender was exposing himself on the tenth floor. The superintendent searched the building and found the offender on the nineteenth floor. The offender was on his knees, with his pants down and buttocks exposed, masturbating. The police were called and witnessed the offender lying down with his pants down and his jacket draped near his groin, masturbating.
- Sexual Assault
April 14, 2003
Suspended sentence & 2 years probation
134 days PSC
The offender approached the complainant at a mall saying, “Hi, sweetie what’s your name?” to which the complainant replied, “Don’t talk to me,” and kept walking. The offender approached her again, asking her name. She told him again not to talk to her and tried to keep walking. He grabbed her bum with his hands. She told him not to touch her and kept walking. He said he was sorry but continued to follow her. She turned to confront him about following her and he cupped her vaginal area with his hand. She hit him with her cell phone and pushed him into a planter to get away. The offender came up behind her, spun her around, grabbed her by her jacket and slammed her against a shop window, pinning her there. The victim and a store employer got the accused off of her. The offender then tried to leave but was followed by a witness and security until the police arrived.
- Indecent Act
February 13, 2004
Suspended sentence & 3 years probation
204 days PSC
The offender left his residence in only a hockey jersey which he held up around his neck, flashing people on the street. The accused walked right up to the complainant and stood in front of him. The complainant questioned what the offender was doing. The offender did not respond but walked up to his neighbour’s house and then returned to his residence. The police attended and found the offender in the common room of his rooming house, still wearing only the hockey shirt and masturbating.
- Sexual Assault
October 29, 2004
Time served & 1 year probation
4½ months PSC
The 26-year-old complainant saw the offender loitering outside a video store. She entered the store to look for a video. The offender followed her into the store. He approached the complainant and stood so close to her that she could feel his breath on the back of her neck. He asked her if she had a boyfriend. She replied that she did and told him to go away. The offender began to stroke her buttocks and inner thighs. She stepped back from the offender and the offender turned and walked out of the store. He was arrested a short time later.
- Sexual Assault
November 2, 2006
Suspended sentence & 2 years probation
7 months & 5 days Pre-Trial Custody (PTC)
The offender and victim were walking down the street in opposite directions. As they passed, the offender grabbed the victim’s buttocks hard for approximately two to three seconds and said “fuck you” and other things that she could not understand. The complainant left the scene once the accused let go of her. She went home and called the police.
Sexual Assault
Sexual Assault
March 30, 2007
Suspended sentence & 3 years probation
2½ months PSC
The first victim was at the mall when the offender approached her and grabbed her right buttock. The victim began to pursue him and he left the scene. The victim contacted mall security. The offender went to another nearby mall and grabbed the right buttock of another victim twice. He was apprehended by security and held for the police.
- Sexual Assault
June 6, 2007
18 months & 3 years probation; s.110 for 10 years
1½ months PTC
The complainant and the offender had been on the same bus. When they disembarked, he approached her and stood in her personal space. He asked her for the time. When she looked at her watch, the offender went behind her, grabbed her buttocks and disappeared into the crowd. The offender was arrested by police a short time later.
Sexual Assault
Sexual Assault
August 21, 2009
60 days & 3 years probation; s.109 life; DNA
334 days PSC
The victim walked past the offender. He asked her for the time and her name. She indicated that she was not interested and walked on. The offender approached the victim and again asked for her name and if she had a boyfriend. She replied that she was not interested. The male walked away and stood approximately three metres behind her. He approached the victim and grabbed her from behind with both arms. He grabbed her buttocks. She turned and swung at him and he said, “Sorry, sorry,” and ran down a nearby alley. The victim chased the offender and saw him approach another female. He then continued to run. A couple of weeks later, the offender approached another victim. He approached on her right side and whispered in her ear, “Can I have a cigarette.” The victim was startled and shook her head indicating no. The offender then walked away. The victim then felt her dress lift up. She thought it was the wind. She then felt a pull on the dress and turned to see the offender looking underneath. The victim yelled at the offender and he let go of the dress and walked away.
- Indecent Act
October 24, 2010
1 day
119 days PTC
This offence occurred on the same night as the predicate offence. The offender was observed by a witness to be following another female pedestrian. The offender had his pants undone and his erect penis exposed.
Violent Offences
[8] The offender’s 19 prior convictions for (non-sexual) violent offences are as follows:
OFFENCE
CONVICTION DATE
SENTENCE & FACTS
- Attempt break & enter
May 1, 1987
9 months
No further information is available pertaining to this offence.
- Setting fire to other substance
March 30, 1988
3 months & 2 years probation
The offender lived with his girlfriend, Audrey Ellington, and their children on the 11th floor of an apartment building. The night before the offender had an argument with Audrey about his failure to clean the apartment. He grabbed her and choked her. The following day, Audrey took the children and left the apartment. In the process of leaving Audrey brought her children out of the apartment and when she returned she and the offender again began to fight. The offender threatened to stab her. When she called for help, he choked and bit her. A friend managed to separate them at which point Audrey left, went downstairs and called the police. Shortly after she left the offender deliberately set fire to her clothes and fled the apartment with his own clothes. The fire spread to the bedroom. Audrey’s smoke alarm sounded, alerting neighbours, and the fire was extinguished by neighbours. The fire department attended.
- Assault peace officer
December 12, 1988
7 days
No further information is available pertaining to this offence.
- Unlawfully in a dwelling house
June 19, 1990
Suspended sentence and 3 years probation
No further information is available pertaining to this offence.
- Assault
August 18, 1994
1 day and 2 years probation
2 days PSC
The offender was living with his parents. He was angry at his father who was using the phone. When his father hung up the phone, the offender grabbed him around the neck, tried to choke him, and then bit him, breaking the skin. The father struggled to get away and called the police from a pay phone.
Assault
Assault
Assault with intent to resist arrest
Assault peace officer
October 31, 1994
Suspended sentence and 2 years probation
The offender threatened to kill his father while holding a knife. The victim backed away from the offender. The offender put the knife down and left the house. Fearing for his life, the father called the police. The offender returned and overheard his father talking to police. He grabbed his father, and slapped his face twice. He then threw the victim onto a couch and left the room. When police arrived to arrest the offender, he violently resisted. He swung at one officer, twisted one officer’s wrist, punched another officer in the eye and bit an officer, breaking the skin. He was eventually subdued and arrested.
- Assault
February 6, 1995
30 days
44 days PSC
The offender was living with his parents. He and his father were home. His father was in bed. The offender came into the father’s bedroom and told his father that he bugged the offender. The offender then struck his father with a metal soup ladle with such force that it broke the wooden handle of the soup ladle.
Possession of incendiary material
Assault with intent to resist arrest
July 12, 1995
30 days & 2 years probation concurrent
Following a dispute with a convenience store manager who had accused the offender of stealing magazines, the offender was seen lurking around the garbage dump next to the building by a police officer. The offender fled and then returned the next morning and set fire to garbage dump. On his arrest, the officer was guiding the offender down the front stairs of his home when the offender grabbed at the officer’s crotch and made a lunge for his service revolver. The officer pushed him away. The offender kicked out the officer’s left shin, attempting to trip the officer down the stairs.
- Aggravated assault
December 12, 1995
18 months; s.110 order for 10 years
73 days PSC
The offender attended at his parents’ home to get some of his things. He was told to leave and not return. The offender refused to leave. He broke a window and entered the home. The police were called and escorted the offender off the property. The offender returned the next day. He found his father in the front yard and began to punch him in the face and caused several facial fractures (including a broken jaw).
- Robbery
September 25, 1997
4 months & 2 years probation
4 months PSC
No further information is available pertaining to this offence.
Assault with a weapon
Assault peace officer
Assault
February 25, 1998
5 months
5 months consecutive
5 months concurrent
The offender was once again living with his parents. At this time his mother was 72 years old and his father was 79 years old. The offender had an argument with his mother about buying a vehicle. He followed his mother into her bedroom and punched her in the shoulder causing her to fall to the floor. He then went to the kitchen and grabbed a dinner knife. He ran outside and tried to puncture the tires of his parents’ vehicle with the knife. His father tried to intervene but the offender placed him in a headlock while still holding the knife in his other hand. The father broke free and the offender started swinging the knife at him. Police arrived and the offender pushed the arresting officer in the chest, knocking him back.
Assault
Assault with a weapon
October 26, 2005
Suspended sentence & 3 years probation
11½ months PSC
A 13-year-old girl was visiting with the offender’s mother. The offender came into the kitchen and demanded to know why the 13-year-old was there and demanded her mother’s telephone number. His mother told him to leave the girl alone. He punched the girl in the face. The offender’s mother intervened to stop the offender from assaulting the girl further. The offender grabbed a hot frying pan from the stove and used it to hit his mother in the forearm and throw the hot oil it contained in her face. He then left the house. He returned a short while later and the police were called.
The Crown sought an assessment order pursuant to s.752.1 but the Court refused to order the assessment. The offender was sentenced in the ordinary course.
The Offender’s Failure to Comply with Court Orders
[9] The offender’s 21 prior convictions for breaches of court orders are as follows:
OFFENCE
CONVICTION DATE
SENTENCE
Fail to appear
Fail to comply with probation order
January 15, 1986
1 day concurrent and $50
30 PTC
No further information is available pertaining to this offence.
- Fail to appear
October 28, 1986
$200
10 days PTC
No further information is available pertaining to this offence.
- Fail to comply with recognizance
January 30, 1987
30 days
No further information is available pertaining to this offence.
Fail to comply with probation
Fail to appear
June 23, 1987
45 days
30 days consecutive
No further information is available pertaining to this offence.
Fail to comply with recognizance
Fail to attend court
June 19, 1990+
Suspended sentence & 3 years probation
30 days
Fail to comply with probation order
Fail to comply with recognizance
February 6, 1995+
30 days consecutive
30 days consecutive
- Fail to comply with probation order
August 22, 1995
35 days
4 days PSC
No further information is available pertaining to this offence.
- Fail to comply with probation order
February 25, 1998+
5 months consecutive
- Fail to comply with probation order
August 7, 2001*
30 days & 2 years probation concurrent
23 days PTC
- Fail to comply with probation order
September 6, 2002*
4 months conditional sentence (consecutive to 8 months conditional sentence) & 2 years probation
4 months PTC
- Fail to comply with recognizance (Conditional Sentence Order Breach)
February 13, 2004*
Suspended sentence & 3 years probation concurrent
- Fail to comply with probation order
October 29, 2004*
Time served & 1 year probation concurrent
4½ months PTC
- Fail to comply Christopher’s Law
June 17, 2005
15 days
No further information is available pertaining to this offence.
- Fail to comply with probation order
October 26, 2005+
Suspended sentence & 3 years probation concurrent
11 months & 15 days PTC
- Fail to comply with probation order
June 6, 2007*
18 months & 3 years probation concurrent
Fail to comply with probation order
Fail to comply with probation order
July 29, 2010
Suspended sentence & 3 years probation concurrent
No further information is available pertaining to this offence.
[10] Born November 15, 1966, Mr. Walters’ history is set out in numerous Pre-Sentence Reports filed in this proceeding. His school history is poor, including a pattern of truancy, low and failing grades and, finally, dropping out completely after grade 10.
[11] In 1983, Mr. Walters began a relationship with Audrey Ellington while she was in high school. He left school to find employment to support this girlfriend after she got pregnant with his child. They went on to have three children, but the relationship ended in 1988 when Mr. Walters was charged with arson for setting Ms. Ellington’s clothes on fire.
[12] There has been some inconsistent reporting by the respondent of other relationships since. .
[13] Mr. Walters has been inconsistent in reporting to probation officers about his work history. He did, however, begin collecting disability payments in 1992 at around age 26.
[14] In 1986, at the age of 17 or 18 years old, Mr. Walters was hit by a car as he ran across a street. He broke his neck, damaged his arm and shoulder and sustained a brain injury. Doctors determined that he lost 75% of his I.Q. Though Mr. Walters had acquired a couple of criminal findings prior to the accident, the now long record began to truly build after the respondent’s brain injury occurred.
[15] Neurological testing by Dr. David Nussbaum in 2002 revealed Mr. Walters had generally impaired cognitive functioning. Dr. Nussbaum’s medical opinion, at that time, linked the respondent’s behavioral and legal difficulties to the brain injury.
[16] In 2006, however, Dr. A. Unsal concluded Mr. Walters had suffered some type of cognitive impairment, possibly as a result of his head injury, but he was not clear whether the head injury caused the criminal behavior Mr. Walters was showing.
[17] The following background information about the respondent is set out in Exhibit 8 on this application and is unchallenged.
Substance Use and Schizophrenia
The offender is a habitual user of marijuana. He also consumes alcohol. He is aware that substance abuse plays a role in his offending behaviour. The offender has, for some extended periods, abused cocaine. Over the years he has presented as floridly psychotic. This has been interpreted as being a substance-induced psychosis. However, the offender has also been diagnosed with schizophrenia.
Community Supports
The offender has no accommodation planned for his release. His siblings are not able to assist or supervise him.
Institutional and Supervision History
(1) Institutional History
The offender has amassed two dozen institutional charges over his many years in jail. In the 1990s, his institutional offences related to disobeying orders, tearing up his clothes, intentionally clogging the toilet with his clothes and towel, setting fire to paper in his cell, assaulting and threatening guards, as well as several physical altercations with other inmates. He has been classified repeatedly as a very high-risk.
(2) Supervision History
In September 2000, when the offender was being sentenced for his first set of indecent acts, the author of the Pre-Sentence Report noted that “any future community supervision is likely to prove futile, as [the offender’s] past performance has been unsatisfactory”. The author noted that although there are community resources available to address the offender’s mental health and substance abuse problems, the offender is not motivated to follow through. The offender’s history of supervision shows that the Courts and Correctional Services have repeatedly tried to facilitate treatment for the offender’s mental health, brain injury, and paraphilias. In some cases, arranging treatment was complicated by lengthy wait lists. For the treatment that was arranged, the offender would attend when escorted by a support worker but would not attend if left to his own devices. Even where the offender was successfully admitted to programs (either in custody or as part of probation), the offender either opted not to participate, as was the case at St. Lawrence Valley sexual offender treatment program in 2007, or caused problems, such as flashing staff members and other patients, engaging in substance abuse and generally not following the rules. The offender’s recidivism persistently disrupted any treatment he did receive. The offender was not consistent in reporting to probation.
Assessments and Treatment History
Through his involvement in the criminal justice system, the offender has been assessed on several occasions by a number of psychiatrists. The reports currently available to the Crown and filed with this Honourable Court are summarized below.
(1) Dr. Nussbaum – 2002
Dr. Nussbaum conducted neuropsychological testing on the offender which revealed the offender suffered from Frontal Lobe Syndrome. The offender has general impaired functioning and borderline range of overall intelligence. Dr. Nussbaum opined that the offender’s behavioural and legal difficulties were attributable to limitations caused by his brain injury and do not reflect an intrinsically antisocial nature. To the extent that the disinhibiting effects of his brain injury can be managed medically, it was Dr. Nussbaum’s opinion, that the offender’s risk in the community can be safely managed with appropriate treatment and psychiatric follow-up in the community. Dr. Nussbaum called for a specialized psychosexual evaluation at the Sexual Disorders Clinic at CAMH.
(2) Dr. Gojer – 2004
In 2004, Dr. Gojer concurred with Dr. Nussbaum’s diagnosis of Frontal Lobe Syndrome or Organic Personality Disorder. Dr. Gojer opined that it was difficult to determine whether the offender’s brain injury was causing schizophrenic-like symptoms or if the offender also suffered from schizophrenia. Dr. Gojer indicated that the offender qualifies for a diagnosis of a paraphilia (sexual deviation) given his exposure and fetish for women’s feet. Dr. Gojer also recommended that the offender be treated for his brain injury, continue on his anti-psychotic medications, be assessed at the Sexual Behaviours Clinic at CAMH and possibly be chemically castrated, and monitored for substance abuse that can disinhibit him further.
(3) Dr. Unsal – 2006
In 2006, Dr. Unsal conducted a neuropsychological assessment for the offender’s application for treatment at an inpatient behavioural treatment program for those with acquired brain injury. By this time, the offender was diagnosed with schizophrenia. Further testing by Dr. Unsal demonstrated significant impairment: generalized brain dysfunction and associated reduction in executive function abilities (increased preservation, poor planning and organization, slowed processing speed, and poor working memory). It was his view that the offender did not appear to be suffering from long-term effects of a significant traumatic brain injury. It was Dr. Unsal’s view that the offender likely had a premorbid verbal weakness or verbal learning disability with long-term generalized brain dysfunction as a result of extensive substance abuse (in particular, cocaine). His recommendations focused on substance abuse treatment and supports to minimize the probability of substance abuse which would lead to re-offending.
(4) Dr. McDonald – 2006
In 2006, Dr. McDonald diagnosed the offender with anti-social personality disorder. He assessed the offender on the Violence Risk Appraisal Guide (VRAG) and determined that the offender placed in the fifth category out of nine, suggesting a 50% likelihood of future offending. Phallometric testing revealed a pattern of a rape-prone individual, i.e. one with preferentially greater sexual response to forced rather than consenting sex. He noted that the offender lacked concern about morality or social norms and lacked any real motivation to control his behaviour in future. It was Dr. McDonald’s view that psychiatric intervention would be unlikely to control the offender’s severe antisocial behaviours.
(5) Dr. Swayze – 2007
Dr. Swayze did a psychiatric report for Justice Schneider in March 2007. He diagnosed the offender with poly-substance abuse and dependence, and a personality disorder within the antisocial spectrum. He indicated the offender has borderline intellectual functioning. Dr. Swayze could not rule out schizophrenia but questioned the diagnosis of schizophrenia as many of the offender’s episodes of acute psychosis are within the context of either acute substance intoxication or withdrawal and that his brain injury makes him vulnerable to transient psychosis. Dr. Swayze further diagnosed the offender with multiple paraphilias. Dr. Swayze recommended phallometric and sexological assessment at the Sexual Behaviours Clinic and a relapse prevention program for those with intellectual limitations and/or co-morbid psychiatric diagnoses as well as sex-drive reducing medications. He further strongly endorsed the recommendation for substance abuse relapse prevention programming. Given that antipsychotic medications had attenuated and/or contained episodes of acute psychosis, he supported continuation of the offender’s medication.
(6) Dr. Wilkie – 2009
Dr. Wilkie assessed the offender at the request of defence counsel. Dr. Wilkie diagnosed the offender as suffering from antisocial personality disorder and likely multiple substance dependence disorders in sustained remission in a controlled environment. Dr. Wilkie noted the offender’s psychotic symptoms and could not settle the debate about cause (brain injury, substance abuse, or primary psychotic illness). She diagnosed the offender with multiple paraphilias including frotteurism, exhibitionism, and fetishes (feet and possibly buttocks). She indicated that the frequency of these paraphilic behaviours are likely impacted by disinhibition related to substance abuse, antisocial personality traits, and possibly, psychotic symptoms. In her risk assessment, Dr. Wilkie scored the offender as a 9 out of possible 12 on the Static-99 (a score of 6 or above is associated with the highest risk category for future sexual offending). She recommended that the offender participate in sexual offending relapse prevention programs in custody and in the community and take sex-drive reducing medication as well as substance abuse programming.
The Section 752.1 Report [August 27, 2012]
(1) Diagnosis
In his section 752.1 assessment, Dr. Graham Glancy diagnosed the offender as suffering from schizophrenia, traumatic brain injury, paraphilia (including toucherism and exhibitionism – a cluster of behaviours known as the “courtship disorders”) and substance abuse. He opined that the schizophrenia symptoms do not seem to be directly related to the offender’s convictions however reports are that when the offender is compliant with anti-psychotic medication he is easier to supervise.
Evidence on the Application
[18] The Crown called three expert witnesses on the application: Dr. Graham Glancy; Anthea Haines and Dr. Jeff Abracen. The respondent called Dr. Derek Pallandi. Other medical reports from doctors who had dealt with Mr. Walters in the past, Mr. Walter’s criminal record, synopses of criminal offences, pre-sentence reports and institutional records from prior periods of incarceration were filed as exhibits.
Dr. Graham Glancy (psychiatrist)
[19] Dr. Graham Glancy M.B., Ch.B., FRC. Psych. F.R.C.P.(C) wrote the August 27, 2012 report for my determination of whether Mr. Walters should be assessed pursuant to s. 752.1 of the Code for the Crown to bring its dangerous offender application. Dr. Glancy made the following conclusions:
(i) Mr. Walters scored a 20 on the psychopathy checklist (PCL-R) which is below the cut off for psychopathy, but is nonetheless a high score, which demonstrates the respondent has a degree of psychopathy. Mr. Walters’ cognitive disorder, which affects and mimics symptoms and signs of psychopathy, could be the reason for his score;
(ii) Mr. Walters scored as high risk of future violence and is difficult to manage in the community;
(iii) Mr. Walters scored in the high risk category for risk of future sexual violence to adult or adolescent women. The type of violence would likely be indecent exposure or unwanted touching in a sexual manner;
(iv) Mr. Walter’s diagnosis is he suffers from schizophrenia, traumatic brain injury, paraphilia, toucherism, exhibitionism and substance abuse.
[20] Dr. Glancy testified that Mr. Walters was going to require twenty-four hour supervision in a structured living accommodation in order to have the risk he poses to the public appropriately addressed. His opinion was that without a “good period of time out” from the community, with a strong treatment model in place, the respondent would reoffend. Dr. Glancy concluded that given Mr. Walter’s drug and alcohol abuse in the past and his non-participation, non-compliance, repeat offending and refusal to participate in previous institutional and community treatment ordered or offered to him, the respondent requires an intensive course of treatment and programming before he could be effectively managed and controlled in the community. Mr. Walters also requires counseling for his sexual offending and substance abuse. Dr. Glancy also recommended the respondent continue taking antipsychotic medications and strongly recommended his taking sex drive reducing medications.
[21] Dr. Glancy testified that the sex drive reduction medication that Mr. Walters requires could only be assessed as effective or not if the respondent were taking it for some time. He also warned that Mr. Walters could withdraw his consent to have the drug administered at any time if he were living in the community and the medication is not easy to administer for individuals like Mr. Walters suffering from intellectual disabilities.
[22] Once Mr. Walters is released into the community, the doctor recommended the following for proper risk management of him:
(a) Long-term intensive supervision and monitoring;
(b) Supervised housing with frequent monitoring and intense supervision;
(c) Services for people with brain injuries;
(d) A case manager to review his history;
(e) Day treatment programs, so that the respondent can be occupied daily and attend groups to learn life and social skills, as well as occupational and job readiness training;
(f) A family worker to help his family learn how to work with Mr. Walters;
(g) A behavior therapist;
(h) A PSW to help with daily living tasks;
(i) Psychiatric follow-up with monitoring for his anti-psychotic medications;
(j) Hormonal sex drive reducing agents in injectable form on a monthly basis to be administered and monitored by CAMH sexual behaviours clinic (to which the offender would have to consent); and
(k) Groups for relapse prevention for sexual offenders and victim sensitization, particularly for those with limited cognitive capacity.
[23] And, even with all of those measures in place, Dr. Glancy’s opinion was that the likelihood of eventual control in the community of Mr. Walters was only “a hope”.
[24] Factoring in wait list times and the amount of time needed to administer the appropriate programs sequentially to the respondent, Dr. Glancy’s opinion was that Mr. Walters would need time in the penitentiary. During that time, he could benefit from therapy, be medicated and supervised to ensure his compliance. Following that period, Mr. Walters might then be manageable in society.
Anthea Haines (Correctional Services Canada)
[25] Anthea Haines has worked for Correctional Services Canada (CSC) for numerous years in the penitentiary system assisting offenders to enter the community from federal institutions.
[26] Ms. Haines testified that an offender entering a penitentiary is assessed and a correctional plan is created for him. The plan would allow for programs and treatment intervention, providing continuity for the rehabilitation and reintegration process for the offender. The plan is designed to identify the appropriate interventions to address offending behavior and should be in place prior to the inmate’s release.
[27] Ms. Haines testified that a short or non-custodial sentence prevents the CSC from adequately preparing an offender for safe reintegration into the community. First, the CSC must have time to develop a structured and gradual release plan so that the Parole Board of Canada (PBC) is able to impose conditions of release. Second, waiting lists for treatment programs can delay an offender’s participation in moderate or intensive sex offender programs. Also, an offender may have to repeat treatment programs a number of times for successful completion.
[28] Ms. Haines testified that CSC requires at least 120 days while an offender is in custody to conduct an assessment. However, any assessment conducted in a provincial jail is difficult to complete because CSC has no jurisdiction over the facility and can only meet with the offender during professional meeting hours.
[29] Ms. Haines pointed out that community-based residential centres are minimum security facilities and if an inmate needs constant supervision, a penitentiary is a more appropriate place to house him. She also testified to the following:
(i) a condition to reside in a community-based residential facility can be imposed by the PBC upon recommendation from CSC:
(ii) a residency condition on a Long-Term Sentence Order (LTSO) can only be imposed by the PBC when a period of controlled re-entry into the community is deemed essential to support the offender and protect the public;
(iii) a bed at the Keele Centre (as contemplated by the respondent) is not guaranteed due to longstanding bed space shortage;
(iv) an offender who is cognitively low functioning, high-risk for sex offending with schizophrenia and substance abuse problems would require high intensity programs longer than those provided for offenders without cognitive limitations. A period of two to four years in the penitentiary would be necessary for the effective delivery of such programs taking into account the waiting periods, the nature of the various programs and the fact that the programs must be done consecutively;
(v) high intensity programs for sex offenders with cognitive limitations can be designed to treat their individual needs. Group counseling programs are the norm in the penitentiary, but individual counseling programs can be provided with the approval from CSC. Each program, however, delivered individually rather than in a group model, would at least double the length of time to deliver the sessions.
Dr. Jeff Abracen (psychologist, CSC)
[30] Dr. Abracen testified about programming from CSC and individualized sex offender programs in both the penitentiary and in the community. He testified that programming in the community, however, is designed to build on the programming the individual has received inside the penitentiary. The programs in the institutions are high intensity and go into more depth than low intensity programs. Dr. Abracen agreed with the suggestion that it is theoretically possible to begin programming in the community, but did not believe that it was ideal for high-risk sex offenders since correctional programming for high-risk offenders is essential to reduce the offender’s risk of reoffending once in the community.
[31] He supported Ms. Haines’ evidence that individualized treatment programs in the penitentiary had significantly longer waiting lists than regular group programs – which themselves had substantially long wait periods.
[32] Finally, Dr. Abracen agreed that although the low functioning sex offender program at CAMH was a suitable program for the respondent, it is not a better alternative to high-intensity programs. The CAMH program has less hours of treatment – 1 day per week as opposed to the 4 days offered in the penitentiary programs.
Dr. Derek Pallandi (psychiatrist)
[33] The respondent called Dr. Derek Pallandi M.D., F.R.C.P.C. as its expert witness. He had seen Mr. Walters on two prior occasions. First, regarding a March 13, 2009 risk assessment for an Ontario Court sentencing hearing and, second, for the March 30, 2012 assessment he did of the respondent about his criminal responsibility or lack of it for the charges before me now. He then reviewed Dr. Glancy’s report about Mr. Walters and agreed with much of it. He agreed that Mr. Walters did suffer a mental illness, he suffers from a traumatic brain injury, paraphilia and substance abuse problems.
[34] He agreed with Dr. Glancy’s recommendations that Mr. Walters needed interventions such as structured continuous case management, treatment with anti-psychotic medication, paraphilia medication, counseling and treatment for drug abuse. He disagreed, however, that Mr. Walters required a penitentiary sentence to resolve these issues.
[35] Dr. Pallandi shared Dr. Glancy’s belief that group programming would be ineffective for the respondent due to his low level of cognitive functioning. He believed the respondent would not understand the material offered in the program nor have the intellect necessary to learn to feel empathy toward the victims of his offences required for success in the sexual assault counseling programs. The doctor also felt Mr. Walters might have problems remembering the materials taught and applying whatever he was able to learn in them.
[36] Dr. Pallandi’s opinion was that it was unlikely that Mr. Walters would be able to receive individual counseling in a penitentiary and would only “stand in line” for treatment not gaining any benefit in addressing his problems. He did feel, however, that Mr. Walters could receive the treatment he does need without further incarceration, but if housed in a highly structured half-way house – the Keele Street facility – and treated as part of a Long Term Supervision Order. The doctor proposed that this court order a residency condition as part of the LTSO, case management by an Assertive Community Treatment (ACT) team to address the respondent’s identified treatment needs, uninterrupted treatment with antipsychotic medication in perpetuity and sex drive reducing medication. Dr. Pallandi also recommended Mr. Walters attend the Centre for Addiction and Mental Health for sexual assault counseling and receive vocational training in order to keep himself busy and, perhaps, eventually get employment. He also recommended Mr. Walters undergo weekly urinalyses to screen for drug use.
[37] Dr. Pallandi agreed in cross-examination by the Crown that he had never worked in the penitentiary system yet still did not believe individual counseling was obtainable there for Mr. Walters. However, if one on one programming could be put in place for the respondent in the penitentiary, he would change his opinion that Mr. Walters should be treated immediately from a half-way house in the community.
[38] Dr. Pallandi agreed that the CAMH sexual offender treatment program was not a high intensity program. He was unaware of the length of the wait list for the Keele Street half-way house and whether there was round the clock supervision available for Mr. Walters there. When put to him by the Crown, he was surprised that the ACT team had waiting lists as Dr. Glancy had testified. He was confident that ACT teams took convicted arsonist and forensic clients such as Mr. Walters when the Crown suggested to him that they might not.
[39] Dr. Pallandi suggested that the chance of ultimate control of Mr. Walters in the community with the conditions he recommended was “a little higher than hope”.
[40] Dr. Pallandi’s evidence did not deal with the substance of any of the dangerous offender criteria set out in sections 753 (1) (a)(i) or (ii) of the Criminal Code.
Analysis
[41] Both experts, Dr. Glancy and Dr. Pallandi, agree that Mr. Walters is at high risk to reoffend sexually. Both doctors concluded that the possibility of controlling Mr. Walters in the community once he is released is as low as merely hope and as high as a little more than a hope.
[42] The primary purpose of the Dangerous Offender Sentencing regime is the protection of the public [R. v. Lyons, 1987 25 (SCC), [1987] S.C.J. No. 62 at paras. 14, 15, 26, 38].
[43] The Crown bears the onus of establishing that the respondent meets the dangerous criteria as set out in section 753(1) of the Criminal Code beyond a reasonable doubt.
753.(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behavior by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behavior and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behavior,
(ii) a pattern of persistent aggressive behavior by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her bahaviour,
[44] I have already found that Mr. Walters is guilty of a serious personal injury offence in committing the criminal harassment of Ms. Francis Black as the predicate offence to this application.
Section 753(1)(a)(i)
[45] The respondent has conceded that he has shown a pattern of repetitive behaviour which demonstrates a failure to restrain his criminal activity. He has also conceded that the predicate offence is part of that pattern. In addition, Dr. Glancy testified that the predicate offence represents Mr. Walter’s pattern, which is an approach to a female victim to increase her fear along with touching and / or exposing himself or masturbating. Dr. Glancy also predicted that future violence by Mr. Walters would probably follow the same pattern. This satisfies the first component of section 753(1)(a)(i).
[46] Although Mr. Walters disagreed, at this hearing, that this pattern reveals a likelihood that he will cause death, injury or severe psychological damage to others through failure to control his future behavior, I have already determined, in finding him guilty of the predicate offence, that Mr. Walters’ behavior was likely to inflict severe psychological damage on the victim and that the offence was physically and psychologically violent in spite of the fact he did not touch her [R. v. Donald Walters reported at 2012 O.J. No. 2876 at paras. 12 to 18].
[47] The respondent’s past behavior and Dr. Glancy and Dr. Pallandi’s opinions support the proposition that the respondent is unlikely to restrain his future behavior and will, therefore, likely cause death, injury or severe psychological harm to his future victims [R. v. Lyons, supra, at par. 94 (S.C.C.); R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963 at paras. 37-43 (C.A.); R. v. Langevin, 1984 1914 (ON CA), [1984] O.J. No. 3159 (C.A.) at paras. 28-31]. Dr. Glancy determined, at the conclusion of the s. 752.1 assessment, that Mr. Walters was a high risk of future sexual violence to adult or adolescent females by indecently exposing himself or sexually touching them – and that it would cause significant psychological harm to them. He considered Mr. Walters’ behavior to be acute and chronic. Dr. Pallandi agreed.
[48] The victim impact statement of Francis Black on the predicate offence sets out the kind of severe psychological damage that she suffered, but probably depicts the kind of damage that has been caused by the respondent’s past sexual offences to those victims. Ms. Black wrote:
The year 2010 is a year I will never forget. I am no longer a woman who goes out each day without fear of the streets. Being a victim of crime has certainly changed me…. That night … my life flashed before my eyes scared and overwhelmed, wondering what will happen to my children … not knowing if I would be seriously harmed or killed. Sometimes I hear footsteps, I panic, my heart starts racing. I feel so uncomfortable when someone is behind me… With the wink of an eye your life can be changed so drastically.
[49] Mr. Walters satisfies the criteria for a dangerous offender designation in section 753(1)(a)(i).
753(1)(a)(ii)
[50] Mr. Walters also meets the criteria for a dangerous offender pursuant to section 753(1)(a)(ii). First, he has demonstrated, through repeated conv