R v MJ, 2013 ONSC 6803

COURT FILE NO.: 0216/09

DATE: 20131031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.J.

M. Cole, for the Crown

D. Brodsky, for the defendant

HEARD: June 11, 15, 18, 20, 21, & 29, 2012, February 4, May 23, June 12, July 8, and August 23, 2013

DANGEROUS OFFENDER APPLICATION

REASONS FOR JUDGMENT

GARTON J.:

TABLE OF CONTENTS

Para.

introduction 1

changes to the dangerous and long-term offender legislation 4

the witnesses called at this hearing 5

the predicate offence 9

the breach of recognizance 25

background of the offender 28

the offender’s criminal record 46

the correctional services of canada records 117

Intake assessment 118

Psychiatric/Psychological Assessment Report 125

Self-Reporting Background Information 133

Testing & Recommendations 136

Correctional Plan 138

Updated Correctional Plan 141

Progress in Custody 143

Sex Offender Treatment Program Discharge Report 151

Further Information about Progress in Custody 179

THE ISSUE OF ABORIGINAL HERITAGE AND A GLADUE REPORT 199

THE OFFENDER’S STATED CURRENT ATTITUDE TOWARDS TREATMENT

AND PROGRAMS 207

EVIDENCE OF DR. TREENA WILKIE 209

Conduct Disorder and Antisocial Personality Disorder 211

Substance Abuse/Dependence Disorders 214

Paraphilias 217

Criminogenic Variables 230

Risk Assessment 232

i) The Psychopathy Checklist-Revised (the “PCLR”) 233

ii) The Violent Risk Appraisal Guide (the “VRAG”) 237

iii) The Sex Offender Risk Appraisal (the “SORAG”) 239

iv) The STATIC-2002 (Revised Version) 242

v) Dynamic Risk Variables 246

Dr. Wilkie’s Assessment of Dangerous Offender Status and Long-Term

Offender Status Pursuant to s. 753 of the Code 251

i) Dangerous Offender Status 252

ii) Long-Term Offender Status 259

Summary of Dr. Wilkie’s Findings re Long-Term Offender Status 281

EVIDENCE OF STEVEN POPOVSKI 290

Facilities and Services at the Keele Centre 292

Security 294

Community Surrounding the Keele Centre 297

Programs 298

Developing a Correctional Plan 301

Circles of Support and Accountability 308

Long-Term Supervision Orders: Length and Place of Residency 310

Violations and Rehabilitation 313

THE PRE-SENTENCE REPORT 318

Aboriginal Programs Available to a Long-Term Offender who Identifies as

Aboriginal without any External Verification 321

THE LEGAL FRAMEWORK CONCERNING A DANGEROUS OFFENDER

APPLICATION 330

The Records Relied on by the Crown 335

Proof of Prior Criminal Convictions and the Facts Underlying those Convictions 343

REQUIREMENTS FOR A DANGEROUS OFFENDER DESIGNATION 377

REQUIREMENTS FOR A LONG-TERM OFFENDER DESIGNATION 388

Is there a Reasonable Possibility of Eventual Control of the Offender’s Risk of

Re-Offending in the Community? 401

DISPOSITION 441

OTHER ORDERS 444

INTRODUCTION

[1] On April 21, 2010, the offender, M.J., age 48, was found guilty after trial of sexually assaulting the victim, M.M., on September 12, 2007. M.J. was arrested on September 13, 2007, and has remained in custody since that date. At the time of his arrest, he was bound by a recognizance pursuant to s. 810.2 of the Criminal Code, one of the terms of which was to keep the peace and be of good behaviour. As a result of his conviction for sexual assault, M.J. was also found guilty of breaching his recognizance.

[2] The Crown now seeks to have M.J. declared a dangerous offender and to have an indeterminate term of imprisonment imposed on him, pursuant to s. 753(4)(a) of the Code. The Crown submits that the dangerous offender criteria in ss. 753(1)(a)(i) and (ii) and s. 753(1)(b) have been met and that there is no reasonable possibility of eventual control of the risk that M.J. poses in the community.

[3] The position of the defence is that M.J. falls within the definition of a long-term offender. Counsel for M.J. submits that the appropriate sentence would be two years imprisonment in addition to the approximately six years already served by M.J. in pre-sentence custody, to be followed by ten years of supervision in the community pursuant to s. 753.1(3) of the Code.

CHANGES TO THE DANGEROUS AND LONG-TERM OFFENDER LEGISLATION

[4] Amendments to Part XXIV of the Code came into force on July 2, 2008. Prior to that date, a court had a discretion not to declare an offender dangerous even if the statutory criteria for dangerous offender status had been met: s. 753 stated that “the court may … find the offender to be a dangerous offender …” However, s. 753, as amended, states that “the court shall find the offender to be a dangerous offender …” The court’s discretion has now been shifted to the disposition stage after a finding that the offender meets the criteria set out in ss. 753 (1)(a) or (b). Since M.J. committed the predicate offence in 2007 and, in accordance with defence counsel’s submissions in this regard, the pre-July 2, 2008 version of s. 753 applies in this case.

THE WITNESSES CALLED AT THIS HEARING

[5] Dr. Treena Wilkie, a forensic psychiatrist who completed an assessment of M.J. pursuant to s. 752.1(1) of the Code, and Steven Popovski, who is employed by the Correctional Service of Canada (the “CSC”) as a Parole Officer Supervisor at the Keele Community Correctional Centre (the “Keele Centre”), testified on behalf of the Crown. Mr. Popovski provided information regarding the Keele Centre and other residences available for high risk offenders who are bound by a long-term supervision order. The Crown also relies on four affidavits that were filed on consent. Counsel for M.J. did not seek to cross-examine the affiants, who are as follows:

i) Sheldon Schwartz

Mr. Schwartz is a parole officer employed by the CSC. He describes in his affidavit the responsibilities of Institutional and Community Parole Officers, the parole decision-making process, recommendations made to the Parole Board of Canada, residency condition issues for long-term supervision offenders and other sentencing issues;

ii) Nicki Smith

Ms. Smith is employed by the Parole Board of Canada and is the Regional Manager of the Conditional Release Programs for the Ontario/Nunavut Region. She describes in her affidavit the functions of the Parole Board, the parole application and release process and other features of parole administration where a sentence of two years or more is imposed;

iii) Reyhan Yazar

Mr. Yazar is employed by the CSC as a National Program Manager. He outlines in his affidavit the risk assessment, risk management, intervention strategies and other features of sentence administration when a sentence of two years or more has been imposed; and

iv) Janet Gauthier

Ms. Gauthier is employed by the Ministry of Community Safety and Correctional Services of the Province of Ontario and is currently the Deputy Superintendent of Programs at Maplehurst Correctional Complex. She describes in her affidavit the risk assessment, programming and other features of sentence administration where a sentence of less than 2 years has been imposed.

[6] The Crown also relies on records from the CSC and the Children’s Aid Society (“CAS”), as well as documents relating to M.J.’s criminal record.

[7] M.J. was the only witness called by the defence at this hearing.

[8] As explained later in these reasons, a pre-sentence report was ordered by the court after counsels’ submissions on sentence. The pre-sentence report focused on Aboriginal programs available to a person on a long-term supervision order who, like M.J., self-identifies as an Aboriginal person, even though there is no external verification of such ancestry. Counsel made further submissions after completion of the report.

THE PREDICATE OFFENCE

[9] The facts with respect to the predicate offence are outlined in detail in my reasons for judgment.

[10] At the time of the sexual assault, M.J. was 42 years old. The victim, M.M. was 17 years old and living with her father.

[11] M.M. suffers from Attention Deficit Disorder (ADD) and consequently has trouble concentrating. She completed high school after attending special classes and was planning on taking courses in life skills so that she could live on her own and hopefully obtain employment.

[12] On the morning of September 12, 2007, M.M. got off the streetcar and started walking towards her school. She was in front of a library when M.J. called out, “Hey” and asked her if they could talk for a while.

[13] M.M. recognized M.J. as someone whom she had first met in 2006. On that occasion, she had been standing outside the entrance of the Broadview subway station waiting for a bus when M.J. said “Hi” and they “kind of talked” like friends for a short time. They said goodbye when her bus arrived and she went home.

[14] After this first meeting, M.M. spoke to or saw M.J. on several occasions in the Broadview and Gerrard area. However, they never learned each other’s names.

[15] On September 12, 2007, M.M. told M.J. that she did not have a lot of time to talk to him because she had to get to school. M.J. kept telling her to stay. They ended up speaking for about five minutes. M.J. asked her if she had broken up with her boyfriend (she had disclosed to him on a previous occasion that she had a boyfriend) and kept asking her “to go out with him.” M.M. told him that she and her boyfriend had a fight but they were still together.

[16] As soon as M.M. told M.J. that she had to leave to go to school, he grabbed her and hugged her, placing his hands on the middle of her back and putting his hips past her hip. He then moved both his hands under her shirt and squeezed her left breast. He was about to touch her right breast when she managed to free her hands and push him away. M.J. fell to the ground. When he asked her why she had pushed him, M.M. told him, “Because I wanted you to let me go”. She said “goodbye.” M.J. replied, “I hope to see you again tomorrow.” He then went into the library and M.M. went to school.

[17] The assault made M.M. feel “scared” and “uncomfortable.” She told a youth worker about the incident when she got to school and the police were notified. This led to a DVD-recorded interview of M.M. at the police station that same day.

[18] The following day, when M.M. got off the streetcar to go to school, M.J. approached her on his bike. The police then intervened and arrested him on the charge of sexual assault.

[19] M.M. testified that after their first meeting at the subway station in 2006, M.J. kept “popping up everywhere” in the Broadview and Gerrard area. She saw him at a coffee house, a bakery, and also coming out of the library. She thought he might be stalking her.

[20] M.M. saw M.J. on about nine occasions prior to the assault. During some of their conversations, he would tell her that she was a pretty girl, that any guy who went out with her was lucky to have her, and that her boyfriend was a “smart boy to choose a pretty girl like her.” He also told her that he was 18 years old. M.M. did not believe him. He appeared to her to be in his thirties.

[21] Upon arrest, M.J. was strip searched and was found to be wearing a penis ring, which was removed from his penis and testicles. At trial, M.J. testified that he suffers from a painful medical condition that causes his testicles to “go up inside”. As a result, a doctor, whose name he could not recall, told him to wear the device he was wearing at the time of his arrest. M.J. denied that it was a penis ring or sexual device to keep him from ejaculating too quickly. He could not recall when or where he purchased the device. He never asked the officer in charge of the case, Detective Kalatzopoulos, to return the ring to him or told him that he needed it for a painful medical condition. In fact, he told the detective that he did not suffer from any medical conditions.

[22] Detective Kalatzopoulos testified that he was concerned for M.M.’s safety after learning that her assailant had indicated he would see her the next day. As a result, he and other plainclothes officers set up surveillance of the streetcar stop at Broadview and Gerrard at 8:00 a.m. on September 13, 2007. At 8:20 a.m., M.J. arrived at the stop on his bicycle and waited and watched as streetcars came and went. At 8:49 a.m., the streetcar on which M.M. was riding pulled up to the stop. She got off and crossed the intersection. M.J. jumped on his bicycle, caught up to her and said, “Hi there.” The police promptly arrested him after M.M. confirmed that he was the male who had assaulted her the previous day.

[23] The main issue at trial was identity. M.J. testified and gave a strikingly different version of events. He denied that he was the individual who sexually assaulted M.M. but acknowledged having seen or spoken to her on a number of occasions. In my reasons for judgment at trial, I did not find M.J. to be a credible witness and rejected much of his evidence as fabrication.

[24] M.M.’s victim impact statement, which was written with the assistance of her father, indicates that she has had difficulty trusting people since the assault. She continues to have nightmares about it and avoids the area where the assault took place. She fears going out at night and has limited her circle of friends to her fellow students and the social workers in her life skills class.

THE BREACH OF RECOGNIZANCE

[25] On November 14, 1997, M.J. was sentenced to eight years in prison after pleading guilty to four counts of sexual assault and one count of choking. He was detained until his warrant expiry date of November 13, 2005, at which point he was released as an untreated sex offender. On November 10, 2005, three days prior to his release, he entered into a recognizance with conditions, pursuant to s. 810.2 of the Criminal Code, for a period of one year. The conditions were as follows:

• Report once a week to the police;

• Report his address, any change of address and employment status to the police;

• No possession of any weapons;

• No contact with any victims, anyone known to him to have a criminal record, or anyone under the age of 18 except with an adult family member;

• Not attend public parks, public swimming areas, community centres, day-care centres, school ground arcades or playgrounds where children are known to be;

• Not work or volunteer where he could be put in a place of trust with children;

• Not enter into a relationship with anyone with children without notifying the police, who will notify the individual of his past;

• Keep the peace and be of good behaviour; and

• Carry a copy of the recognizance with him at all times.

[26] On November 9, 2006, the recognizance was renewed for another year. The only change was that M.J. was required to report to police once a month instead of once a week.

[27] M.J. clearly violated the condition that he “keep the peace and be of good behaviour” when he sexually assaulted M.M. on September 12, 2007. As for the condition that he have no contact with anyone under the age of 18, M.J. testified at this sentencing hearing that he was unaware that M.M. was only seventeen years old.

BACKGROUND OF THE OFFENDER

[28] M.J. was born on April 12, 1965. He has an older brother, Wayne, who is currently serving a life sentence for armed robbery, and a younger sister, Joy Johnstone, with whom he has had contact on only three occasions over the past 16 years. Ms. Johnstone is married and lives with her husband and children.

[29] M.J.’s parents separated when he was about 10 years old. He has had virtually no contact with his father, J.J., since that time. His father did not work steadily and was an abusive alcoholic. He currently lives in Newmarket and is suffering from dementia. M.J.’s mother, Ellen Rickets, did not work outside the home. She died in June 2012. Ms. Johnstone advised the author of the pre-sentence report, Mark Nikolic, that M.J.’s closest family relationship was with his mother.

[30] M.J. claims that he was sexually molested by a local parish priest when he was seven or eight years old. M.J. was a choir boy at the time. He stopped going to that church but never disclosed the abuse to his parents or the authorities.

[31] M.J. does not recall his mother punishing or disciplining him. However, his father tended to “over discipline” him when he was intoxicated. Ms. Johnstone recalled that their father beat their mother and all the children but the offender seemed to bear the brunt of the abuse. When Ms. Rickets finally separated from their father in 1975, she initially left the children behind. The authorities intervened and, after about a week, Ms. Rickets was located and agreed to take custody of her children.

[32] The CAS became involved with the family in April 1976. The initial reason for CAS involvement was that the children were being left unattended for extended periods of time.

[33] M.J. experienced a number of difficulties after his parents’ separation. He ran away from home three times before the age of twelve. He usually stayed away for several days and would live with his aunt. He mentioned during his intake assessment interview at Millhaven in January 1998 that he used to do some “borrowing” when he was under the age of 12 but did not consider it stealing.

[34] In 1978, M.J. was noted as having been cruel to a cat, biting its ears until they bled. According to the CAS records, M.J. stole a pedigree dog in October 1978 and resold it for $15.00 while he was staying with an aunt and uncle. A CAS case management note, dated March 23, 1979, indicates that M.J.’s mother “was having many problems with M.J., who had been setting fires and was disobedient and coming home late. She was at the end of her rope”. The note goes on to indicate that on one occasion, M.J. was brought home by the police after he was found riding his bicycle at 3:00 a.m.

[35] During his testimony at this hearing, M.J. denied ever setting any fires or being cruel to animals. He testified, “I don’t understand where they are getting this information from.”

[36] At some point, M.J.’s mother gave custody of him to his father because she could no longer control him. M.J. was staying out until one or two in the morning and sometimes did not come home at all. He was also truant from school, pretending to go to school but then not showing up, once for an entire week. He had set more fires. On one occasion, he burnt a candle and poured wax all over the floor. M.J. eventually resumed living with his mother.

[37] In May 1979, M.J. was referred by the CAS to Moberly House, where he attended the Moberly Alternative Care Program during the day. He was enrolled in this program for just over a year, during which time he showed improvement in his overall behaviour.

[38] In terms of education, M.J. testified that he was in a Special Education program for two years during high school before being admitted into the program at Contact Alternative School, where he completed Grade 12. During his intake assessment at Millhaven in January 1998, M.J. reported that he had a Grade 9 education. Educational testing at Millhaven placed him at a 4th grade level in language skills and at a 5.5 grade level in math.

[39] According to the pre-sentence report, M.J. moved out of his mother’s home in 1981. He lived in various rooming houses and depended on social assistance for support. He also took jobs involving manual labour, such as roofing and moving furniture.

[40] In his late teens, M.J. began a relationship with a woman that resulted in the birth of a daughter, who would now be in her late twenties or early thirties. M.J. could not recall her age. He has not seen his daughter since she was three and had no idea as to her whereabouts.

[41] In 1997, M.J. had a son from his relationship with V.M.H. The child was taken into the care of the CAS shortly after his birth. On November 14, 1997, M.J. pleaded guilty to sexually assaulting and choking V.M.H. He also pleaded guilty on that date to sexually assaulting three other women and received a total sentence of eight years plus eight months of pre-trial custody for these offences. When Mr. Nikolic asked him about his son, M.J. questioned the paternity of the boy, stating that he did not believe the child was his.

[42] Following his release from custody on November 13, 2005, M.J. lived at a shelter at 973 Lansdowne Avenue. He eventually obtained an apartment at the same location. Shortly after his release, he met a woman, Margaret LaChapelle, with whom he was living at the time of the predicate offence. Their relationship ended after his arrest on September 13, 2007, for the sexual assault on M.M.

[43] In 2006, M.J. enrolled at the Liaison Culinary Arts Program. After completing the initial five-month course, he took another more advanced course that began in September 2006 and ended in January 2007. In order to obtain certification, students must complete 3000 hours of work. To that end, M.J. started working as a volunteer, cooking meals three times a week for the homeless at a church. He was still engaged there as a volunteer when he sexually assaulted M.M.

[44] M.J. testified that upon his release from custody, he intends to return to Liaison and complete all of the programs with a view to becoming a chef and possibly opening up his own restaurant.

[45] Mr. Nikolic noted in his report that M.J. has spent most of his life in custody since the late 1990’s. Family connections, already weak to begin with, have long since faded. Friendships are non-existent. Consequently, if and when M.J. is released from custody, he would have to depend on support systems available through community services.

CRIMINAL RECORD

[46] M.J. has a fairly extensive criminal record that includes both sexual and non-sexual offences. He agreed that every entry on his criminal record is as a result of his having pleaded guilty to the crime, which involved an admission of the underlying facts supporting the charge. However, M.J. insisted that he was only guilty of the offences that are of a non-sexual nature and maintained his innocence with respect to all his convictions for sexual offences. The latter include an indecent assault on a ten-year-old male and six counts of sexual assault on women or young girls.

[47] M.J. gave various reasons as to why he pleaded guilty to sexual offences that he now says he did not commit. He did not appeal any of these convictions and at no time sought to have his pleas of guilty set aside.

[48] M.J. has always had legal representation whenever he has been charged with a criminal offence.

[49] M.J. maintains that he was wrongfully convicted by this court of the sexual assault on M.M.

[50] M.J.’s criminal record is as follows.

i) September 7, 1983: Theft Over $200 – conditional discharge and probation for 12 months

[51] M.J. testified that this offence involved shoplifting items from a store. He could not recall what he stole.

ii) January 30, 1984: Indecent assault on male – conditional discharge and probation for one year

[52] The police synopsis with respect to this offence states that during the last six months of 1982, the ten-year old victim, C.K., came into contact with M.J. and the co-accused, John Hoyle, who developed a friendship with the young boy. Over this six-month period, the victim was taken to Mr. Hoyle’s residence on numerous occasions, where various sexual acts involving all three parties took place, including masturbation and fellatio. Both M.J. and Mr. Hoyle committed buggery on the victim. After these acts, the victim was given small amounts of money.

[53] On February 27, 1983, the victim’s mother received a call from a friend indicating that something had happened to her son. The mother spoke to the victim, who told her what M.J. and Mr. Hoyle had done to him. M.J. was arrested the following day and gave an inculpatory statement.

[54] According to M.J.’s version of events, the police asked him to testify against John Hoyle. When he refused, the police charged him with indecently assaulting the victim.

[55] M.J. adamantly denied confessing to or committing this crime. He explained that he only pleaded guilty in order to get the matter over with and after the Crown indicated that he would be seeking a conditional discharge and probation. M.J. asserted that the victim was mistaken when he said that M.J. indecently assaulted him.

[56] M.J. did not serve any pre-sentence custody with respect to this offence.

iii) October 18, 1984: Sexual assault – Suspended sentence plus probation for two years.

[57] The police synopsis states that on April 3, 1984, M.J., who was 19 years old at the time, was at his mother’s residence. The victim, J.M., age 13, came over to the apartment to obtain a hat from her girlfriend, Joy, who was living at that address. M.J. told J.M. that Joy was sleeping and then got the hat for her himself.

[58] J.M. left the apartment and was walking down the stairs when she noticed that M.J. was following her. She started to walk faster in order to get away from him. However, M.J. caught up to her and, after a short conversation, picked her up, carried her down to the bottom of the stairwell and put her on the ground underneath the stairs. J.M. began to struggle with him. M.J. pulled down her jeans and ripped her panties. When she started to scream, he placed his hand over her mouth and banged her head against the concrete floor. He placed his finger into her vagina and began to sexually assault her. He then pulled down his own pants and attempted to have intercourse with her.

[59] At this point, two people who heard J.M. screaming came to her aid and stopped M.J. from proceeding further. J.M. left the area and went home.

[60] M.J. was the subject of two probation orders at the time of this offence, which took place only two months following his guilty plea to the charge of indecent assault.

[61] M.J. did not disagree that these were the facts read into the record when he entered his guilty plea. However, he maintained that his sexual activities with this 13-year-old girl, which he says took place on the stairwell, were consensual. When someone came along and saw them, J.M. “freaked out” and alleged that he had sexually assaulted her. He denied banging J.M.’s head on the concrete floor. He only pleaded guilty after the Crown agreed to a suspended sentence and because he wanted to get the matter over with.

iv) October 3, 1987: Attempt theft under $1000, failing to appear, and failing to comply with conditions of a recognizance – 21 days intermittent and probation for 6 months

[62] No facts are available with respect to these offences. M.J. could not recall what the offences entailed but acknowledged having committed them.

v) August 21, 1987: Theft under $1000 - $3.00 fine

[63] No facts were available with respect to this offence.

vi) January 26, 1994: Indignity to a dead body – 12 months imprisonment

[64] The police synopsis states that on September 21, 1992, the victim, Cindy Carere, was at M.J.’s apartment in Toronto. They had been living together for a few months but had separated just prior to the night in question. Ms. Carere had returned to the apartment to retrieve some of her belongings. While there, she died. It appeared that M.J. and Ms. Carere had sex during or immediately after she passed away.

[65] After Ms. Carere died, M.J. obtained two heavy duty plastic fertilizer bags. He put the deceased into one of the bags in a fetal position and then put the other bag over the open end of the first bag. He then put the body in a garbage dumpster. The body was not discovered for five days.

[66] In his victim impact statement, Mr. Carere’s father stated that M.J. “gave us hope when he knew that she was already dead”.

[67] M.J. acknowledged that he pleaded guilty to this offence based on these facts. However, he testified that he and Ms. Carere, with whom he had been living for four or five months, had not separated. She had taken drugs – he was not sure exactly what – and then died while they were having sex. He denied choking her or having sex with her after she died. He stated that he put her body in the bags and disposed of it in the dumpster out of panic. He denied leading her family to believe that she was alive when he knew that she was dead. He testified that he quit drinking and taking drugs after this incident.

[68] In cross-examination, M.J. testified that Ms. Carere had taken cocaine, speed, heroin and valium that night. He denied that he had taken any drugs. He did not call the police or 911 but just “freaked out” and panicked. When Crown counsel asserted that “Even if she died of drugs, sir, you don’t know if she died in your apartment or in the dumpster”, M.J. responded, “No, I – I don’t know if she did or …”

[69] M.J. was released on parole on May 31, 1994.

vii) June 12, 1995: Sexual assault and uttering threats – charges withdrawn; M.J. entered into a peace bond.

[70] No facts were available with respect to this occurrence.

[71] According to M.J., the charges were withdrawn because the complainant “stood up in court and identified someone else as the perpetrator.” The Crown then asked him if he would sign a peace bond. He agreed to sign the bond in order to get the matter over with. He denied sexually assaulting or threatening the complainant.

viii) October 7, 1996: Sexual Assault – 1 day in addition to 7 months pre-trial custody, plus probation for two years

[72] The police synopsis indicates that this offence took place on February 1, 1996, when M.J., age 30, attended at the home of P.B., age 18. P.B. had never met M.J. prior to this date but had spoken with him on the telephone, as his roommate was a friend of hers.

[73] On the day in question, M.J., P.B. and P.B.’s roommate had coffee and talked. P.B. agreed to walk M.J. partway back to his home.

[74] While walking through a park, M.J. kissed P.B. on the cheek and mouth. He put his hand inside her top and fondled her breasts. She told him that she had to get back to her child. He then put his arms around her waist from behind and directed her to a secluded area behind several garages. At one point, P.B. pushed him backward in an attempt to stop him from leading her to this area. However, he pushed her and continued towards the rear of the garages, where he put his hand down her pants in the crotch area. He then forced her to perform oral sex on him. She told him that she did not want to do it, but he continued to force her head down.

[75] M.J. then pulled down her pants and had vaginal intercourse with her from behind, without her consent. She was unsure if he ejaculated. She was too scared to call for help.

[76] When he was finished, P.B. pulled up her pants, went home, and had a shower. Her roommate realized that she was upset and spoke to her in the bathroom. P.B. told her that she had just been raped by M.J..

[77] The police were subsequently called and the victim attended at a hospital for examination and completion of a sexual assault kit. She did not sustain any physical injuries from the assault. She was later interview by the police. A transcript of that interview provides further details of the offence.

[78] According to the transcript, P.B. had called M.J.’s residence to speak to his roommate. M.J. answered the telephone and they had a conversation, during which M.J. began to ask her increasingly personal questions, such as what she looked like, whether she had a boyfriend, and how she liked to have sex.

[79] The following day, M.J. called P.B. and asked if he could attend her residence. She agreed. He came to her home that afternoon, and spoke with her roommate while P.B. put her child down for a nap. When P.B. came downstairs, she, her roommate and M.J. spoke about childhood acquaintances.

[80] P.B. then left the residence for approximately 30 minutes, during which time M.J. reportedly “made passes” at her roommate. When P.B. returned, M.J. asked her to walk him halfway back to his home.

[81] P.B. told the police that when they reached a park, M.J. kissed her on the cheek, on the lips and then “went up (her) top”. She said “no”, and told him that she had to get back to her daughter. He said, “It’s okay, trust me”.

[82] M.J. then took her behind a shed, and forced her to “go down on him”. He then “went down (her) pants and put (her) hand down his pants”. He then had intercourse with her from behind. She was unsure whether he ejaculated.

[83] After the incident was over, M.J. asked her whether she “enjoyed it”, and whether she had ever had sex outside between two garages. He tried to kiss her, but she pushed him away.

[84] P.B. went home and told her roommate what had happened. They then called M.J., who “confessed” to the incident over the telephone. M.J. asked P.B. “if (she) enjoyed it, if it turned (her) on, and if (she) got off on it”.

[85] M.J. returned to P.B.’s home that night. She told him that she had felt uncomfortable and that what he had done was wrong.

[86] M.J. acknowledged at this hearing that the Crown read in the above facts when he pleaded guilty. However, he insisted that his sexual activities with P.B. were consensual. According to M.J., they met for the first time on the day prior to this incident. The next day, they were holding hands, kissing and hugging while P.B.’s roommate was in the bathroom. When he was leaving, he asked P.B. to walk him halfway home. When they got to the park, they resumed kissing and hugging and had consensual sexual intercourse. She then left. He did not accompany her home. He denied that he ever confessed to her or her roommate and had no idea why P.B. “changed her mind and said it wasn’t consensual.”

[87] According to M.J., on either the date of the preliminary hearing, trial, or as part of his guilty plea – he was not exactly sure of the type of proceeding – P.B. took the stand and testified that the sexual activities were, in fact, consensual. The Crown then offered him a “deal” of one day plus time served in pre-sentence custody if he pleaded guilty. He took the deal “to get it over with.”

[88] M.J.’s explanation as to why he pleaded guilty to this offence was problematic: according to M.J., the sentencing judge accepted his guilty plea to sexual assault notwithstanding P.B.’s evidence that there was no assault and that she consented to the sexual activity.

ix) November 14, 1997: Sexual assault (four counts) and Choking – 8 years in addition to 8 months of pretrial custody, and a firearms prohibition order for life

[89] On November 14, 1997, M.J. pleaded guilty to four counts of sexual assault and one count of choking. One of the sexual assaults took place prior to the sexual assault on P.B. The other three occurred after his conviction for that assault. A transcript of the sentencing hearing before Ferguson J. has been filed as an exhibit. The facts of the offences admitted by M.J. at that time are as follows:

Sexual Assault on S.J., age 14

[90] At the time of this sexual assault, M.J., age 31, was a friend of S.J.’s father. At some point during July of 1996, M.J. called S.J., who was 14 years old, and offered her a job in the landscaping business. She indicated that she was interested. He told her to meet him at the Riverdale Zoo.

[91] After meeting at the Zoo, M.J. suggested that they take a walk in order to discuss the job. He then led her to a secluded area, where he began to fondle her. He put his hands inside her top and felt her breasts. He also put his hand inside her tights and felt her vagina. S.J. was crying throughout this incident. At one point, M.J. made her touch his penis through his trousers. He eventually stopped and told her not to tell her father. He then walked away. S.J. did not tell anyone about this incident until 1997, after other victims had come forward.

[92] M.J. testified that he never sexually assaulted S.J. According to M.J., he ended up spending a weekend at S.J.’s home because he was working with her father on a roofing project. Around 2:00 or 3:00 a.m., while he was asleep in bed, S.J. came into his room, woke him up and performed oral sex on him. He did not stop her. She then left the room. At no point did he ever take her to a secluded area and fondle her or make her touch his penis through his trousers. M.J. testified that he was very surprised when he was charged some time later with sexually assaulting S.J.

[93] In cross-examination, M.J. was questioned about statements he made concerning this offence when he was enrolled in a sex offender treatment program at the Ontario Regional Treatment Centre (RTC) in Kingston during his incarceration. The psychologist, Dr. Ida Dickie, states in her discharge report, dated April 17, 2001, as follows:

M.J. adamantly states that this victim is lying. He stated that the ‘real story’ is that his victim’s mother was angry with him because he kept taking her husband out drinking, who would then become physically violent upon returning home. As a way to get back at M.J., she had her 14-year-old daughter charge him with sexual assault.

[94] M.J. had no recollection of having provided this version of events regarding the sexual assault on S.J.

[95] In her victim impact statement, S.J. states that she has been diagnosed with post-traumatic stress disorder. She is in therapy and takes medication for this condition. S.J. indicates that she has difficulty trusting men, which has caused great stress in her current relationship. She sometimes wakes up in cold sweats, screaming “don’t touch me.” She is always looking over her shoulder, afraid that she might see M.J., even though she knows that this is an irrational fear as he is in custody.

Sexual Assault on M.R., age 19

[96] M.R., who was 19 years old at the time of the sexual assault, is a mentally challenged individual. On February 2, 1997, she was at a variety store located at Dundas Street and Leslie, where she met M.J. for the first time. M.J. was with his two nieces, ages four and five.

[97] M.J. persuaded M.R. to accompany him to a nearby apartment building, where he dropped off his nieces. Although M.R. stated that she wished to leave at that point, M.J. convinced her to accompany him into a laneway. Once there, he attempted, unsuccessfully, to have sexual intercourse with her. He then took her to a garden shed located behind the building and again attempted sexual intercourse. When a passer-by appeared, M.J. fled the scene.

[98] According to M.J.’s testimony at this hearing, M.R. began talking to his two young nieces while he was in the variety store and ended up accompanying them to the apartment. He testified, “And then she wanted to leave and I let her go. There was no sexual assault. That was the one where the DNA did not match mine.” According to M.J., this charge was withdrawn because he was excluded as the donor. However, the transcript of the proceedings before Ferguson J. clearly indicates that the charge was not withdrawn. M.J. denied attempting to have sexual intercourse with M.R. in the laneway or the garden shed.

Choking and Sexual Assault on V.M.H., age 19

[99] The victim, V.M.H., age 19, had been M.J.’s common law spouse and, at the time of the choking incident on March 5, 1997, was carrying his child. Prior to this incident, V.M.H. had broken up with M.J. and had left the city for a time. When she returned, she intended to stay at a shelter.

[100] When V.M.H. happened to run into M.J. on March 5, 1997, he offered to help her move her belongings to the shelter. As they were walking near the City Adult Learning Centre on the Danforth, M.J. suddenly reached out, grabbed V.M.H. with both hands and started to choke her around the neck. V.M.H. fell to the ground and lost sensation in the lower part of her body. Just before she passed out, she heard M.J. state, “Why don’t you die? You’re stubborn.” A few minutes later, she regained consciousness and reported what had transpired to police.

[101] V.M.H. told the police that in February 1997, when they were still a couple, M.J. had taken her to his uncle’s residence at 1480 Dundas Street. While at the apartment, V.M.H. had a bath and was wrapped in a towel. M.J. demanded sex from her. When she refused, he threw her on the bed and began to choke her by wrapping his hands around her neck. He commenced sexual intercourse with her but then withdrew, demanded oral sex, and then forced her to comply with his demand.

[102] According to M.J., the February 1997 incident took place not at his uncle’s residence but at his mother’s apartment. He and V.M.H. got into an argument and he hit her. They then had consensual sex. In answer to the leading question “Was this make-up sex?” M.J. stated, “I think so. I am not sure.” When asked whether he hit V.M.H. with an open or closed fist, he stated, “A slap. I don’t punch women. I just slapped her.” He could not recall what caused him to become so angry that he resorted to physical violence.

[103] In cross-examination, when asked, “Have you slapped other women?” M.J. replied, “That’s – I think that’s about it, the only person. Two or three times, that’s all I hit her. It was a slap.” He explained that he only slapped V.M.H. once during the February 1997 incident but that he had also slapped her on another occasion.

[104] M.J. testified that V.M.H. had had a few drinks that night at a tavern. In terms of his own attendances in taverns, M.J. stated that he goes to taverns but he only drinks pop or milk.

[105] M.J. denied that he knew V.M.H. was pregnant with his child in March 1997. He only learned of the pregnancy after he was convicted of choking her and was serving the eight-year sentence. He recalled that a CAS employee visited him at the prison, where he signed various documents concerning the child.

[106] M.J. denied that he and V.M.H. had separated at the time of the March 1997 incident. It was only after he was arrested that she moved to a shelter.

[107] M.J. testified that on March 5, 1997, he and V.M.H. had been at his grandmother’s house and had been arguing all day “about stupid things.” They ended up walking towards the Adult Learning Centre, as V.M.H. wanted to register at the school. They continued arguing and fighting. M.J. slapped V.M.H. once and then “jumped on the TTC.” He denied choking her. He only pleaded guilty to choking her in order to avoid a dangerous offender application being brought by the Crown. He denied ever sexually assaulting V.M.H. He also testified that he did not remember telling V.M.H. “Why don’t you die. You’re stubborn.”

[108] In her victim impact statement, dated April 4, 2011, V.M.H. indicates that after the choking incident in March 1997, she was left with marks on her throat. She was taken to hospital but released the same day.

[109] In terms of the long-term effects that these offences have had on her, V.M.H. states in her victim impact statement that she has difficulty thinking clearly. It has been hard for her to be in a relationship as she does not trust people. She is fearful and nervous, especially around loud noises. She expressed fear that someday M.J. will find her and “finish what he tried to do” on March 5, 1997.

Sexual Assault on B.M., age 15

[110] On March 28, 1997, at approximately 9:00 p.m., the 15-year-old victim, B.M., was at the Maple Leaf Tavern located at 955 Gerrard Street to talk to one of the waiters. While she was there, M.J. approached and engaged her in a conversation. When the conversation became sexual, B.M. decided to leave. She crossed the street to Gerrard Square and went into a McDonald’s Restaurant. M.J. followed her inside, grabbed her by the back of the head and dragged her to the rear of a nearby supermarket.

[111] Once there, M.J. pulled down B.M.’s pants and underwear and forced her to the ground. B.M. resisted, but he banged her head on the ground and told her that she had no choice but to comply. M.J. then had sexual intercourse with her while squeezing her throat and calling her a slut. He also told her that he had AIDS and that she would get it too.

[112] After the assault, M.J. told B.M. not to tell anyone or he would kill her. He then forced his penis into her mouth but B.M. bit it. At that point, she was able to get away.

[113] M.J.’s version of events was as follows. He had been playing pool with his cousin in the tavern for about half an hour when B.M. approached him. They had not previously met. She had been drinking. M.J. was unaware that she was drinking underage. When she ran out of money to buy more drinks, she “propositioned [him] to pay her for sex, which happened.” He gave her $50.00 in cash and they stepped out of the bar. B.M. performed oral sex on him and they also had consensual sexual intercourse. He denied banging her head on the ground. There was no violence. Afterwards, he returned to the bar and continued to play pool. B.M. was “running around the bar drinking” and “going from table to table.”

[114] M.J. testified that he was surprised when he was charged with sexually assaulting and threatening B.M. He denied that he had AIDS or telling B.M. that he had AIDS. He only pleaded guilty to sexually assaulting B.M. in order to avoid a dangerous offender application.

Offences withdrawn by the Crown on November 14, 1997

[115] In addition to the above offences, M.J. was also charged with sexually assaulting three other women. Those charges were withdrawn by the Crown and M.J. entered into peace bonds with respect to each of the three complainants.

Accused’s request to take counselling during proceedings on November 14, 1997

[116] At the sentencing hearing, M.J. told Ferguson J. that he wanted to take counselling. Justice Ferguson recommended that he seek and receive comprehensive treatment with respect to anger control and aggressive sexual conduct.

THE CORRECTIONAL SERVICES OF CANADA RECORDS

[117] The following information is taken from the records of the CSC, which were created while M.J. was serving his eight-year sentence in the penitentiary.

Intake Assessment

[118] The Records indicate that during his intake assessment on January 27, 1998, M.J. stated that he was not guilty of any sexual offences and that the victims were either lying, fabricating stories, coming on to him or the offences were out and out “bullshit.” In cross-examination at this hearing, M.J. acknowledged making this statement but denied using the word, “bullshit.” He agreed that, in his view, the victims were the sole ones to blame for his wrongful convictions.

[119] According to the intake assessment, M.J. described the 1992 death of his former common-law spouse, Ms. Carere, as a “freaky” experience. He stated that on the day in question, they had injected themselves with cocaine and then made love. He denied that Ms. Carere had ended the relationship and was at his apartment just to pick up some of her belongings. According to M.J., Ms. Carere died during their sexual activity. He had heard that “her heart exploded or something like that.” He panicked and put her body in a couple of bags. He then put her in a dumpster.

[120] M.J. admitted to abusing cocaine and living in the fast lane in the past. A number of his friends and associates were criminals although he stated that he currently had a few friends who were pro-social.

[121] M.J. stated that he began using drugs and alcohol in his early teens but had not had a drink for two-and-a-half or three years. In his late teens or early twenties, he became a heavy user of cocaine. In the early 1990’s, he took an eight-week substance abuse program at the Addiction Research Foundation and has not used any drugs since completing that program. [M.J. reiterated during his testimony at this hearing that he had successfully completed this program and that he does not take drugs.] He stated that drugs and alcohol were not involved in his current offences. He reported no history of suicide attempts and stated that he wanted to live until he was ninety.

[122] M.J. stated that he completed an Anger and Stress Management Program at the Clarke Institute of Psychiatry in 1996 but that he continued to have angry outbursts. He was willing to take another anger management program. However, he denied being physically abusive towards any of his partners and stated that he only becomes physical with a partner when he is defending himself.

[123] During the intake assessment, M.J. indicated that he did not view himself as having any sexual problems and that he had never taken any programs for sexual offenders. However, he stated that he would participate in treatment if asked.

[124] M.J. expressed a dim view of all parties involved in the criminal justice system. He asserted that he would change the criminal justice system so that innocent people like himself would not be “made” to “make deals” with the Crown out of fear of being declared a dangerous offender.

Psychiatric/Psychological Assessment Report

[125] As part of the intake process, M.J. was assessed by the psychologist, P. Bruce Malcolm, who was the coordinator of the sex offender treatment program at Millhaven, and Deb Kershaw, who is a sex offender assessment specialist. Their report, dated February 2, 1998, includes a review of the facts underlying M.J.’s convictions for sexual offences and his statements regarding his criminal history.

[126] M.J. asserted to the authors of the report that he only pleaded guilty to the four sexual assaults before Ferguson J. because the Crown was threatening to pursue a Dangerous Offender designation. By entering guilty pleas, he also avoided having to discuss the other victims (in court).

[127] M.J. denied that he choked or physically assaulted his former girlfriend, V.M.H. He explained that V.M.H. was threatening him with a metal bar. In order to “defend” himself he pushed her against a wall, using her throat as the pushing point, and took the bar away from her. He denied knowing that she was three months pregnant at the time. He mentioned that he could not sexually assault his former girlfriend by virtue of the fact that she was his girlfriend. He suggested that she always consented to his sexual requests or demands.

[128] In cross-examination at this hearing, M.J. did not deny making the statement that he could not sexually assault his girlfriend by virtue of the fact that she was his girlfriend. However, he stated that he did not recall making such a statement. When asked whether he believed that such a statement was true, M.J. replied, “I don’t know.”

[129] According to the Assessment Report, M.J. became confused in discussing the other victims, as well as the complainants with respect to sexual offences for which he had been arrested and charged but not convicted. For example, the Assessment Report outlines the allegations with respect to two sexual assaults in July 1996. The victim in one of these assaults was the 14-year-old, S.J. The complainant in the other case was also 14 years old and, like S.J., allegedly agreed to meet M.J. at the Riverdale Zoo to discuss a landscaping job with him. It was alleged that M.J. told her that she could be a model and lifted up her top to see if she was “skinny” enough. He then attempted to kiss her. When she began to leave, he grabbed her and pulled her into him. He thrust his hips and genital area into her hips. The complainant left but did not report the assault, which only came to light during the subsequent investigation of M.J.. M.J. told the authors of the Report that he believed that he had pleaded guilty to this sexual assault when, in fact, he had not. M.J. clearly recalled the complainant but claimed that another male had “cupped her.”

[130] As for the sexual assault on S.J., M.J. told the authors of the report that the victim “came onto [him]. He stated that he spurned her sexual advances and “pushed her away”, using her breasts as a push (away) point. In cross-examination at this hearing, M.J. stated that he did not recall telling Mr. Malcolm that he pushed Ms. Jenkins away using her breasts as a push away point.

[131] According to the Assessment Report, M.J. stated that he did not rape M.R. and that his uncle was the perpetrator of this crime. At this hearing, M.J. denied making this statement.

[132] The Assessment Report indicates that M.J. denied knowing B.M., whom he pleaded guilty to sexually assaulting in March 1997. He stated that this was a case of mistaken identity. At this hearing, M.J. testified that he did not remember saying this.

Self-Reporting Background Information

[133] M.J. told Mr. Malcolm that he was sexually abused at the age of eight or nine by an adult male when he was a choir boy. His first consensual sexual experience was at the age of thirteen with a girlfriend who was the same age. He stated that he had had five or six different sexual partners in his life and had been involved in two common-law relationships. The first union produced one child, with whom M.J. has no contact. The second relationship was with Ms. Carere and began when he was about twenty-three years old.

[134] His most recent relationship was with V.M.H., and lasted about three months. According to M.J., V.M.H. started using illegal narcotics, which caused many arguments between them. He asserted that he ended the relationship and “threw her out.”

[135] M.J. described himself to Mr. Malcolm as “warm, friendly, talkative and okay.”

Testing & Recommendations

[136] M.J.’s score on the PCL-R indicated that he presented as a high risk for violent recidivism. He was also assessed on the Violence Risk Appraisal Guide (VRAG) and produced a score that suggested a 76% probability of violent or sexual recidivism after seven years.

[137] Mr. Malcolm concluded that overall, M.J. presented a high risk for re-offending. He recommended treatment in a High Intensity Sex Offender Program but also stated that “given his present state of denial, he is not a good candidate for treatment at this time”. It was further recommended that M.J. be placed at Joyceville Institution.

Correctional Plan

[138] The initial Correctional Plan recommended that M.J. take the following programs:

Cognitive skills;

Anger management; and

High intensity sexual treatment program.

[139] The sexual treatment program at the RTC at Kingston Penitentiary is a six-month intensive program that includes individual and group therapy. Topics include victim awareness and understanding, social skills, sex education, relapse prevention and individual therapy. Although M.J. indicated that he would take the program, the prognosis for his success was poor given that he denied all of his sexual criminal history.

[140] The Correctional Plan also recommended that M.J. upgrade his education to Grade 12 in order to complete a job search program.

Updated Correctional Plan

[141] M.J. arrived at Joyceville Institution on February 12, 1998, and, within five hours, was assaulted by other inmates as a result of the nature of his crimes. He was placed in segregation for his own protection. He expressed an interest in “addressing his criminogenic needs” but, according to an updated Correctional Plan dated February 27, 1998, he continued to deny responsibility for his offences. He was referred for the above-named programs. He refused to sign his Correctional Plan as he “did not agree with the info.”

[142] M.J. was transferred to Warkworth Institution on June 16, 1998. An updated Correctional Plan, dated July 14, 1998, confirmed the initial plan and recommended programming. It also stated that M.J. would not be considered for a transfer to reduced security or any form of conditional release unless his risk had been reduced by engaging in the recommended programs.

Progress in Custody

[143] An evaluation sheet, dated October 1, 1998, indicates that M.J. was working in an office cleaning position and had completed his duties in an efficient manner and with apparent care. However, a November 5, 1998 evaluation sheet stated that he was not following the schedule and needed closer monitoring. His evaluation sheet for December 14, 1998, stated that his work was not up to the required standard. He was not recommended for a pay increase.

[144] In December 1998, M.J. completed a Grade 9 credit in custodial services. Activity Records for April, May and June of 1999 show that he was missing classes on a consistent basis and, in October 1999, he was suspended for his refusal to attend class. However, it was later learned that his absences were due to health problems as he was diagnosed on October 5, 1999 with Hepatitis C.

[145] By March 2000, M.J. had completed some Grade 10 credits and a sheet metal course. He was enrolled in a computer course, which he completed in September 2000. He was also working in the kitchen.

[146] A Progress Report, dated September 14, 1999, noted that although M.J. had previously denied knowing that his common-law partner, V.M.H., was pregnant at the time of the choking offence, he now admitted that he was aware of the pregnancy. M.J. had earlier taken the position that he did not know the victim of the March 1997 sexual assault, B.M., and that it was a case of mistaken identity. However, during the September 14, 1999 case conference, he acknowledged having met B.M. through mutual friends but maintained that he did not sexually assault her.

[147] A Correctional Plan update, dated September 20, 1999, indicated that M.J. was involved in four incidents involving threats to other inmates and a verbal altercation with another inmate.

[148] In the Casework Record Logs from March through to July 2000, it was noted that M.J. was “somewhat motivated to deal with his treatment needs”. His behaviour and attitude in the institution and unit were very good and he had not incurred any institutional charges.

[149] On May 3, 2000, M.J. signed a consent form to participate in a six-month high intensity sexual treatment program.

[150] A Progress Report, dated November 29, 2000, noted that M.J. had completed Grade 11 courses, including the sheet metal course. He continued to work as a cleaner. However, he had been suspended from working in the kitchen because of his work habits and constant aggressive behaviour towards other inmates.

Sex Offender Treatment Program Discharge Report

[151] According to M.J., he was only in the six-month sex offender treatment program at the RTC for two weeks before he was “kicked out.” However, the psychologist, Dr. Ida Dickie, indicates in her April 17, 2001 Discharge Report that M.J. was in the program for three-and-a-half months. He began the program on November 30, 2000, but was discharged on March 19, 2001, as a result of his “substantial level of denial, which interfered with completing important aspects of the treatment program such as empathy and offence cycle components.” It was noted that a referral could again be considered closer to the end of his sentence, after he had addressed “some of his denial and minimization through individual counselling.”

[152] In the Discharge Report, Dr. Dickie states:

At this point in time, M.J. remains entrenched in denial in regards to the details of the current offences. M.J. indicated that the only reason he pled guilty to the current offences was because the Crown was threatening to bring forward a dangerous offender application. When he was questioned about this reasoning, he indicated that although he is not guilty he did not want to take the chance as they were “dumping all the unsolved sexual assault cases in Toronto, 67 charges in all, on him”.

[153] M.J. was noted as adamantly denying his sexual assault history.

[154] The Discharge Report indicates that M.J., in discussing the indecent assault on the 10-year-old boy in 1984, stated that he did not abuse the victim but simply watched his friend abuse him. The reason he was convicted was because he would not give the name of his friend to the police. When questioned further, he stated that “children can make their own decisions if they want to have sex with an adult”. M.J. therefore did not see anything wrong with playing video games while his friend sexually molested the boy in his presence.

[155] The Discharge Report indicates that in discussing the 1984 sexual assault on the 13-year-old girl who came looking for her hat, M.J. stated that they engaged in consensual sex outside the elevator of his mother’s residence.

[156] With respect to the 1994 conviction for indignity to a dead body, M.J. denied that his relationship with Ms. Carere had ended. They had injected themselves with cocaine and, while “making love”, she died.

[157] Under the heading “Family and Personal Background” it was noted that M.J. did not adequately complete the autobiography assignment as per treatment requirements. However, he did state that he was sexually abused by male and female staff while under the auspices of the CAS. M.J. believed that this could be the cause of any sexually inappropriate behaviour on his part. However, he also denied having a sexual behaviour problem.

[158] M.J. is quoted in the Discharge Report as stating that he “can’t stand women” and that he believes this attitude may be as a result of the sexual abuse he experienced while with the CAS. When asked why he sexually assaulted mostly women when both male and female individuals had molested him, he replied, “I don’t know”. This disclosure regarding prior sexual abuse differed from his intake assessment, where he stated that he had been abused by an adult male when he was eight or nine years of age.

[159] In cross-examination at this hearing, M.J. stated that he could not recall telling Dr. Dickie that he “can’t stand women” but did not deny making this statement.

[160] Under occupational history, it was noted that M.J. did not have a stable employment history and had relied on social assistance for most of his life.

[161] Under the heading “Relationship History and Sexual Development”, Dr. Dickie noted that M.J. recently disclosed that he has been exclusively homosexual all his life. When it was pointed out to him that he had been involved in two heterosexual common law relationships that produced two children, M.J. denied that they were really relationships. He stated that his female partners would use a “strap on” when they engaged in sex and as such they mirrored homosexual sex. Dr. Dickie noted that this did not explain how his girlfriends became pregnant. M.J. had difficulty explaining his point of view when questioned about the inconsistencies in his position about his sexual orientation.

[162] In cross-examination at this hearing, M.J. denied ever stating that he was homosexual or making any reference to “strap on” devices. He insisted that he was “straight.”

[163] Phallometric testing was completed in preparation for M.J.’s commencement of the sex offender treatment program at the RTC. M.J.’s responses on the Quincy Child Sexual Violence Profile were highest to scenes of “passive and coercive sexual activity with prepubescent males and females”, which is considered a deviant profile.

[164] Psychological testing was also completed prior to M.J.’s entry into the sex offender treatment program. M.J. did not appear to have a current alcohol or drug problem. On the High Risk Situation Test, he did not identify any situations that would put him at risk for committing another offence. His response pattern was consistent with his current level of denial. M.J. did not endorse attitudes associated with sexual offences on the Cognitive Distortion (Rape) Scale or the Cognitive Distortion (Child Molester) Scale. The results on the Multiphasic Sex Inventory (MSI) suggested that M.J. presented himself as essentially asexual and that he was “possibly lying about his sexual interests.” M.J. did not endorse many cognitive distortions associated with sexual offending. The MSI indicated that he was not overly motivated to participate in treatment.

[165] In summary, the assessor concluded that the psychometric evaluation “clearly demonstrates that M.J. has an understanding of what is considered appropriate and inappropriate sexual behaviour. In this light, his extensive sexual assault history can only be interpreted in terms of his callous disregard for others’ feelings.”

[166] The pre-treatment risk assessment tools included the PCL-R, which assesses how close an individual is to the prototypical psychopath, the Sex Offender Risk Appraisal (SORAG), the Static 99 and the Sexual Violence Risk Assessment Guidelines (SRV 20).

[167] The PCL-R score placed M.J. in the high-risk category to re-offend. His total score was at the 82nd percentile. In other words, his score was higher than approximately 82 percent of individuals in the prison population sample.

[168] M.J.’s SORAG score also placed him in a high risk category. Other offenders with similar scores recidivated at a rate of 75 percent over seven years and 89 percent over ten years.

[169] On the Static-99, which aims to predict risk of sexual recidivism in particular, M.J. obtained a high risk rating with a 39 percent probability for sexual recidivism over five years and a 44 percent probability for violent recidivism over 5 years.

[170] M.J.’s score on the SRV-20 was also indicative of high risk.

[171] The actuarial, as well as clinical guidelines, estimated M.J.’s risk for re-offence at the high-moderate range for general recidivism and in the high range for violent and sexual recidivism. Had M.J. completed the sex offender treatment program, it may have helped to reduce his risk for sexual and violent recidivism.

[172] While in the program, M.J. failed to complete the autobiographical assignment, stating that he could not recall any details of his life prior to age 27.

[173] When asked by Dr. Dickie as to why he was participating in treatment, M.J. stated that he did not have a problem with sexually assaultive behaviour and that he was taking the program in order to reduce his security level. M.J. testified that he did not recall making this statement.

[174] According to Dr. Dickie’s Discharge Report, the only behaviour for which M.J. accepted responsibility was with respect to his common law spouse, V.M.H. He stated that while they were engaged in consensual intercourse, V.M.H., at the last minute, changed her mind and did not want him to ejaculate inside her. M.J. ignored her wishes and did ejaculate inside her. He stated that “there should be a law that men can use to charge women when they do this type of thing, as it is very cruel.” During his testimony at this hearing, M.J. could not recall making such a comment. He denied having admitted to sexually assaulting V.M.H.

[175] M.J.’s disclosures during group therapy sessions consisted mainly of his denials of having committed the offences. His written work suggested “no real effort.” He was “clearly not invested in treatment at the initial stage.” He minimally participated in the Cognitive Therapy module, and did not identify any thoughts, feeling or events related to his offending pattern.

[176] In her summary, Dr. Dickie stated that M.J. was discharged from the program because he was not amenable to treatment. His level of denial precluded him from benefiting from group therapy. She was of the view that M.J. would be better suited to individual counselling aimed at reducing his level of denial and increasing his acceptance of responsibility for his sexually assaultive behaviour. M.J.’s performance in the treatment modules he did complete was less than satisfactory.

[177] Dr. Dickie concluded that “at this point in time, M.J. is an untreated sexual offender and should be considered a high risk to re-offend sexually or violently upon release.” M.J. testified at this hearing that although he disagreed with this conclusion, it has not caused him to distrust doctors in terms of their ability to treat him for any sexual deviancy he might have.

[178] M.J. testified that after he was discharged from the Sex Offender Treatment Program, he was returned to Warkworth Institution. He continued to indicate to his parole officer that he was prepared to take any and all treatment programs but refused to acknowledge that he had committed any sexual offences. He also refused to sign his correctional plan because to do so would be an admission that he had committed those offences.

Further information about progress in custody

[179] In a Security Level Referral Decision, dated April 20, 2001, it was noted that when asked why he was discharged from the high intensity sexual offender program, M.J. stated that “they wanted me to admit to doing things I did not do (his offences) so they sent me back”. M.J. still refused to admit to his offences and stated that he pleaded guilty to the charges to “avoid being declared a dangerous offender”. M.J. was in complete denial and stated that he would stay incarcerated until his warrant expiry date before he would admit to anything.

[180] M.J. indicated a willingness to participate in all other treatment programs but his motivation was questioned as a result of his refusal to participate in the one program deemed essential to successful reintegration.

[181] M.J. completed a cognitive skills program that ran from August 16 to October 24, 2001. His performance report indicates that he demonstrated a moderate improvement in his ability to recognize, identify and solve problems. He also completed a nine-week anger management program that ran from January 7 to March 15, 2002. His performance report indicates that overall, he showed improvement in some areas of the program. [During his testimony at this hearing, M.J. could not recall whether or not he took an anger management course while serving his sentence.]

[182] According to the Correctional Plan Progress Report dated April 4, 2002, M.J. expressed surprise when informed that his file suggested that he does not take responsibility for any of his sexual offences. However, when his criminal history was reviewed with him, he only admitted to sexually and physically assaulting his ex-common law spouse in 1996. He still denied most of his sexual offences and thereby showed little insight into his criminal behaviour.

[183] M.J. suggested to the author of the Progress Report that Dr. Dickie was not a registered psychologist and that he had the paperwork to prove it. He contended that as a result of her lack of credentials, he was denied professional help when he was at the RTC for the sex offender treatment program. He also claimed that he did not deny his offences during the program.

[184] During this hearing, M.J. denied alleging that Dr. Dickie was not a registered psychologist but added that he had heard she was a student. He denied stating that he had the paperwork that proved she was not registered and asserted that the author of the Progress Report was mistaken in this regard.

[185] In a Detention pre-screening recommendation, dated April 23, 2002, it was noted that M.J. still maintained that he only pleaded guilty to avoid a dangerous offender application. After a thorough review of M.J.’s criminal background and his refusal to accept any responsibility for his sexual offences, it was recommended that M.J. be detained until his warrant expiry date. It was the opinion of his case management team that “there would not be adequate supervision or enough controls in the community for (his) risk to be considered manageable.”

[186] In an Assessment for Decision, dated August 10, 2004, it was noted that M.J. was still denying the sexual component of his offences and had not accepted responsibility for his actions. He had no commitment to any type of relapse prevention plan and was content to remain incarcerated until his warrant expiry date.

[187] According to the Correctional Plan Progress Assessment dated August 10, 2004, M.J. remained “offence free” in the institution and was respectful in his dealings with staff members. He was working as a cleaner. He voiced an intention not to complete the remaining programs identified in his Correctional Plan.

[188] In a National Parole Board decision dated November 5, 2004, M.J.’s detention until his warrant expiry date was confirmed.

[189] In the Assessment for Decision, dated July 21, 2005, M.J. was still refusing to participate in a sex offender treatment program and had not presented any release plans. Continuation of the detention order was recommended.

[190] On October 13, 2005, the National Parole Board again confirmed M.J.’s detention until his warrant expiry date as there was no new information provided to the Board that would have altered the assessment of M.J.’s risk.

[191] M.J. testified that prior to taking the witness stand at this hearing, he had never seen any of the Corrections Canada Records (although those records were disclosed to the defence well before this hearing) and that he was therefore not in a position to agree or disagree with the contents of the records. However, it was noted, for example, that at the bottom of Dr. Dickie’s Discharge report, she states:

M.J. was discharged from the program and transferred to [Warkworth Institution] before the completion of the report. He was given an opportunity to review the report and offer feedback. M.J. declined to provide feedback.

[192] M.J. maintained that he never actually saw the Discharge Report and that “they” just “read some of it. They didn’t read it all” to him. He then testified that he thought the entire report was read to him. He initially stated that he was not given an opportunity to agree or disagree with contents of the report. He then testified that he was asked to provide feedback but did not give any because he “just figured I was kicked out. You can’t say nothing about it.”

[193] M.J. denied ever seeing the Intake Assessment Report, although a note at the end of the report states that a copy was provided to him.

[194] M.J. testified that he never saw the Psychological/Psychiatric Assessment Report prepared by Mr. Malcolm and Ms. Kershaw.

[195] He agreed that he had an opportunity to review the February 24, 1998 Correctional Plan, which he refused to sign. A note at the end of that document states that M.J. “disagreed with info.”

[196] M.J. testified that he did not know anything about the August 8, 1998 Correctional Plan, which he did not sign. However, once again, a note at the end of the plan indicates that a copy was provided to him.

[197] M.J. denied that he had an opportunity to read through his Correctional Plans because inmates are not allowed to keep documents in their cells. He would have had to make a special request to see these and other documents. He never made such a request.

[198] M.J. acknowledged having seen the documents in the Correctional Records that bear his signature. However, he testified that the fact that he signed those documents did not mean that he necessarily agreed with their contents. He denied ever seeing a letter from the Parole Board, dated November 5, 2004, which is addressed to him at Warkworth Institution, informing him that he had been denied parole and the reasons for that denial. He also denied receiving a similar letter from the Parole Board dated October 13, 2005. According to M.J., he was simply told that he would not be getting parole. He stated that this did not surprise him since he had not completed the sex offender treatment program.

THE ISSUE OF ABORIGINAL HERITAGE AND A GLADUE REPORT

[199] During the course of his pre-sentence custody, M.J. has participated in the Native Spiritual Program through the John Howard Society. Prior to his incarceration, he accessed the services of Miziwe Biik Aboriginal Employment and Training and several other Aboriginal agencies.

[200] In response to my inquiry as to whether M.J. wished to have evidence gathered as to his Aboriginal circumstances, Mr. Brodsky, on behalf of M.J., specifically waived the preparation of a Gladue report. This waiver was reaffirmed during counsel’s submissions.

[201] Following submissions, the case was adjourned for my sentencing decision. However, on May 16, 2013, I received a letter from M.J., who, among other things, revoked his waiver with respect to the Gladue report. M.J. stated in his letter that he “wanted the Courts to know that I identify as being a First Nations individual and therefore should qualify for Gladue sentencing …”

[202] After receiving M.J.’s letter, I notified both Crown and defence counsel and arrangements were made to have M.J. brought to court on May 23, 2013. On that date, I ordered a Gladue report, which was to be prepared by Aboriginal Legal Services of Toronto.

[203] On June 7, 2013, I received a letter from Jonathon Rudin, the Program Director at Aboriginal Legal Services, indicating that a Gladue report could not be prepared for two reasons; firstly, M.J.’s Aboriginal ancestry could not be confirmed, despite an extremely thorough archival search going back 100 years; secondly, the purpose of a Gladue Report is to discuss the way in which an individual has been influenced and affected by their Aboriginal ancestry, whether by systemic factors or historical reasons. In this case, M.J. was an adult before he learned that he might have an Aboriginal ancestry on his mother’s side. M.J. told the caseworker at Aboriginal Legal Services that in the 1990’s, “My Uncle Gord (referring to his mother’s brother), he told me, it’s from North Bay, Ontario. He told me some lake up there. I forgot all about it. When I go up there, I’m going to check it out.” His mother made no mention of having an Aboriginal ancestry until she was “up in age.” M.J. had no specific information about an Aboriginal background on his father’s side, other than his belief that they “are Native from Kingston. I don’t know much about it.”

[204] In light of Mr. Rudin’s letter, counsel for M.J. agreed that the preparation of a Gladue report could not be pursued. However, after hearing submissions from both Crown and defence counsel, I ordered a pre-sentence report, with specific instructions to the probation officer, Mr. Nikolic, who was preparing the report, to review the Aboriginal programs available to a person on a long-term supervision order who self-identifies as an Aboriginal person, even though there is no external verification of such ancestry. M.J. was remanded to July 8, 2013, for further submissions pertaining to the pre-sentence report. When Mr. Nikolic indicated that he required further time to prepare his report, the matter was adjourned to August 23, 2013, for final submissions.

[205] M.J. advised Mr. Nikolic that it was around the time that he left home that he became interested in exploring Native culture, due to an idea planted by family members claiming Native heritage. M.J.’s sister, Ms. Johnstone, told Mr. Nikolic that there may be some Native blood in their background but she had doubts in this regard. She viewed their father’s claim that he was of Native descent with some skepticism. Ms. Johnstone believes that any Aboriginal connection, if it exists, would have come from the maternal side of the family through their maternal grandmother, who lived in the Thunder Bay area. The only other connection the family has with the Native community comes from a paternal aunt who married a Native man.

[206] I will review Mr. Nikolic’s report, including his findings in terms of the availability of Aboriginal programs to those who are unable to verify their Aboriginal background, later on in these reasons.

THE OFFENDER’S STATED CURRENT ATTITUDE TOWARDS TREATMENT AND PROGRAMS

[207] M.J. testified that although he has never committed a sexual assault and has been wrongfully convicted of the predicate offence, he is prepared to take a sex offender treatment program or any other programs that may be recommended and offered to him while he is in custody or as a condition of a long-term supervision order. M.J. took a similar position during his interviews with Mr. Nikolic.

[208] M.J. also asserted that although he is not a sex offender, he is prepared to take anti-androgen medication and to start such treatment prior to his release. He also testified that he is willing to provide consent to the disclosure of his progress in any program to his supervisor and to comply with conditions similar to those imposed on him in November 2005 pursuant to the s. 810.2 recognizance.

EVIDENCE OF DR. TREENA WILKIE

[209] Dr. Wilkie has been a staff psychiatrist at the Centre for Addiction and Mental Health (CAMH) since 2005. She met with M.J. at that facility on September 17, 2010, for approximately 15 minutes. Their meeting was brief because M.J. declined to provide any information for the purpose of her assessment regarding whether he met the criteria for designation as a dangerous or long-term offender from a psychiatric perspective. As a result, Dr. Wilkie’s assessment of M.J. was based primarily on the records from the CAS and CSC, the supplementary records of arrest, transcripts of proceedings pertaining to the predicate and past offences, and M.J.s’ CPIC records. Dr. Wilkie also relied on a psychological report prepared by Dr. Penney at CAMH, which she adopted and included in her own report at p. 24.

[210] Under the heading, “Psychiatric Diagnosis”, at p. 25 of her report, Dr. Wilkie noted that it is not clear from the file information as to whether M.J. attended special education classes because of behavioural issues or as a result of a learning disability. M.J. does not appear to suffer from a major mental illness, such as schizophrenia or bipolar affective disorder, but he does appear to meet the criteria for:

• Conduct Disorder and Antisocial Personality Disorder;

• Polysubstance Abuse (in remission in a controlled environment); and

• Two paraphilias, namely, sexual sadism and pedohebephilia.

Conduct Disorder and Antisocial Personality Disorder

[211] Dr. Wilkie explained her diagnosis of conduct disorder as follows:

M.J. has experienced significant interpersonal difficulties in the past, which appear to be grounded in personality dysfunction. M.J. engaged in conduct disordered behavior prior to the age of 15, a necessary precursor to a diagnosis of Antisocial Personality Disorder. As well, he has continued to repeatedly engage in behavior in adulthood that is grounds for arrest. He has also shown evidence of other behavioral traits associated with Antisocial Personality Disorder, which have persisted since adolescence without any evidence of lessening, such as irresponsibility, duplicity and a reckless disregard for the safety of others. He has, of course, also been convicted of a number of serious criminal offences.

Personality traits are characteristic ways of interacting with one's environment. When these are maladaptive and inflexible, and cause social or occupational dysfunction, then personality disorders are said to exist. Personality disorders tend to become evident by adolescence or by early adulthood, and tend to be sustained thereafter, with some attenuation of the more dramatic personality traits towards middle and late age. The course of the symptoms of a personality disorder may be adversely affected by psychosocial stress, an unstructured living situation, alcohol or substance abuse, and non-compliance with psychological treatment. Psychiatric treatment for individuals who suffer from personality disorders tends to fall within the psychological, rather than the pharmacological realm. At times, pharmacological approaches may be used in an adjuvant fashion, targeting specific behaviours.

[212] Dr. Wilkie explained that the essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of fifteen, as indicated by three or more of the following factors. She testified that M.J. met all of these criteria:

• Failure to conform to social norms with respect to lawful behaviours [met]

• Deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure [met]

• Impulsivity or a failure to plan ahead [met]

• Irritability and aggressiveness [met]

• Reckless disregard for the safety of self or others [met]

• Consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour or honour financial obligations [met]

• Lack of remorse, as indicated by being indifferent to, or rationalizing, having hurt, mistreated, or stolen from another [met]

[213] Dr. Wilkie testified that individuals with antisocial personality disorder are generally considered to be untreatable. Even with intensive treatment, such individuals are incapable of significant personality change over time. The focus must therefore be on modifying the individual’s behaviour as opposed to treating the disorder. At p. 27 of her report, Dr. Wilkie states:

There is little evidence suggesting that these individuals are capable of personality change even with assiduous treatment. Treatment for antisocial personality disorder primarily focuses on anger management, social skills training, and vocational training. Management is focused on independent verification of information, the development of fair and predictable consequences for behaviours, and maintenance of firm, consistent boundaries. Anti-aggressive pharmacotherapy may be of some potential benefit, although there is little evidence to suggest that this modality is able to contain an individual’s risk of future aggression.

Substance Abuse/Dependence Disorders

[214] Dr. Wilkie noted that M.J. began using alcohol and marijuana as a teenager. He reported that he was a daily user of marijuana and that alcohol use resulted in exacerbation of physical symptoms (stomach aches) and hangovers. By his late adolescence, he was a “heavy” user of crack cocaine (by his own words, according to file information), and described his substance using as living in the “fast lane”. He reported that he sought substance use treatment on one occasion in the community, which suggests that his use was problematic, although the extent of his substance use and its specific impact on his behaviour remains somewhat unclear. Dr. Wilkie did not have any specific information suggesting problematic use by M.J. of alcohol or street drugs in recent years.

[215] Dr. Wilkie was questioned as to the significance of a historical problem with substance abuse/dependence disorder. She explained that substance use is considered to be a significant disinhibiting factor and as such may increase M.J.’s risk of engaging in anti-social and sexually deviant behaviour.

[216] Dr. Wilkie testified that treatment of substance abuse or dependence disorders may involve both psychological and pharmacological treatment. Psychological treatment may take the form of a group, or peer-support modality, (i.e. Alcoholics Anonymous), or may be cognitive-behavioural or relapse prevention training.

Paraphilias

[217] Dr. Wilkie testified that M.J. appears to meet the diagnostic criteria for two sexual paraphilias; namely, sexual sadism and pedohebephilia. She explained paraphilias as follows:

Paraphilias describe a sexual preference for an inappropriate sexual object or activity. Sexual paraphilias may, at times, cluster together, and multiple (as opposed to single) paraphilias are common. Whether an individual with paraphilias expresses that deviant sexual interest depends on a variety of factors, including the degree of psychological and social stress that an individual is under, the ability to cope and adapt to that stress, the presence of alcohol or substance abuse, the presence of a concurrent antisocial personality disorder or psychopathy (which, in the absence of significant conscience development, will tend to reduce the resistance to acting out on their aberrant sexual drive), and the presence or absence of treatment.

In the case of pedohebephilia, this denotes a primary sexual preference for sexual activity with children. This is not to say that an individual cannot engage in other forms of sexual activity, but does indicate a proclivity for sexual contact with children that cannot be expected to relent.

According to the DSM-IV-TR, sexual sadism denotes a sexual preference for sexually arousing fantasies, urges or behaviours involving acts (real, not simulated), in which the psychological or physical suffering (including humiliation) of the victim is sexually exciting to the person. Some sadistic sexual fantasies are likely to have been present in childhood. When sexual sadism is practiced with non-consenting partners, the activity is likely to be repeated until the person with sexual sadism is apprehended; usually, the severity of the sadistic acts increases over time.

[218] Dr. Wilkie noted that M.J. has perpetrated multiple sexual assaults against female victims ranging in age from 13 to 19. He was also convicted of performing sex acts against a 10-year-old male. His offences have involved his former common-law partner, acquaintances and, at times, strangers. Some of the sexual assaults have involved violence against the victims, including hitting, choking, pushing a victim’s head against a concrete floor, and threats. Phallometric testing indicates that M.J.’s highest responses were to “passive and coercive sexual activity with prepubescent males and females”.

[219] Dr. Wilkie opined that given the frequency of M.J.’s sexually assaultive behaviour, and the young age of some of his victims, there is good evidence that he suffers from a sexual preference for pre-pubescent/pubescent aged children (pedohebephilia). His routine use of force against the victims is indicative of a coercive sexual preference (sadism). She also noted that the combination of multiple paraphilias enhances risk.

[220] Treatment for individuals with paraphilias primarily involves psychological, and, at times, pharmacological intervention. Psychological treatment generally involves participation in cognitive behavioural therapy along a relapse prevention model, which may be administered in an individual, or, more commonly, a group format. Generally, individuals will engage in a several-month course of such treatment and then may have follow up contact, at times on a lifelong basis.

[221] Dr. Wilkie noted that M.J. was discharged from the sex offender treatment program at the RTC as his participation was less than satisfactory and he was described as being in substantial denial with respect to his sexual offences. M.J. did not pursue any further sex offender treatment after his release into the community.

[222] Pharmacological treatment of paraphilias involves the use of sex drive reducing medication. These anti-androgen medications, which may be administered orally, or by long acting intramuscular injection, permit for various degrees of chemical castration. An individual’s sex drive is thus reduced, thereby ameliorating their likelihood of acting on deviant (and non-deviant) sexual impulses. Individuals considering the use of these medications should have an assessment by an endocrinologist prior to initiating treatment.

[223] These two primary forms of treatment for paraphilias are often accompanied by other treatment as required; for example, addressing issues of substance abuse, depression, anxiety, unemployment, poor social skills, and lack of support. Social intervention, such as lack of access to potential victims, may be another component that addresses paraphilias such as sexual sadism and pedohebephilia.

[224] Dr. Wilkie testified that individuals taking anti-androgen drugs must be closely monitored for the first two to three months to determine the appropriate dosage so that testosterone is sufficiently suppressed. Individuals must also be monitored for side effects, such as weight gain and the development of breast tissue. Other common side effects include headaches, dizziness and nausea. Less common side effects include osteoporosis, liver dysfunction, acceleration of cardiovascular disease, blood clots, psychiatric disturbances and depression.

[225] Side effects are a major issue with respect to the anti-androgen drugs and the main reason why most people stop taking them. By “most people” Dr. Wilkie was referring to those who have taken the medication and have been part of various research studies. She was not specifically referring to long-term offenders. Dr. Wilkie was not aware of any peer-reviewed study regarding long-term offenders and their rate of compliance regarding the taking of anti-androgen drugs.

[226] No tests have as yet been conducted to determine how M.J. would respond to an anti-androgen medication.

[227] Dr. Wilkie testified that even if an anti-androgen drug diminishes sexual arousal, an offender may still engage in problematic sexual behaviour. In other words, problematic sexual behaviour may not be driven solely by sexual drive.

[228] M.J. would have to consent to taking an anti-androgen drug as no doctor would administer it without his consent. Even if M.J. initially consented to taking the medication, he could revoke his consent at any time.

[229] Dr. Wilkie voiced concerns as to whether M.J. would follow through on his professed intention to take an anti-androgen drug, given his failure to engage in other treatments offered to him in the past, such as the sex offender treatment program. Such failure raises doubts as to his motivation and long-term commitment to take medication treatment.

Criminogenic Variables

[230] Dr. Wilkie summarized M.J.’s background as follows:

M.J. was raised in a chaotic home environment. His parents separated when he was 10 or 11 years of age. His family was brought to the attention of the Children’s Aid Society around this time, related to allegations of a lack of supervision of the children. M.J.’s father was reportedly alcoholic and abusive. M.J. started to manifest conduct disordered behaviors, including truancy, fire setting, cruelty to animals, running away from home, and disobedience, at a young age. Legal involvement during his early teen years began with charges of theft. M.J. was in special education classes, and apparently manifested low self-esteem related to his small physical size, relative lack of social skills, sensitivity, and low frustration tolerance. Eventually, through the CAS, he attended programming and appeared to have benefited from adult involvement/attention in that his social skills improved and he expressed an interest in pursuing vocational goals.

However, during his late adolescence, as his family dissipated and he stopped attending the Moberly program, he became more involved with substance use and criminal behavior. For much of his adult life, he has been supported by government assistance, and has been unemployed. He has been involved in long term relationships with women, although the nature of same remains unclear due to his lack of disclosure, and, at times, conflicting disclosure, of personal information.

[231] Dr. Wilkie identified M.J.’s principal criminogenic variables – that is, the variables that are related to his offending – as follows:

• Antisocial personality disorder;

• Sexual deviance;

• Lack of Insight and failure to take responsibility for his actions;

• Failure on conditional release;

• Substance abuse;

• Lack of participation in structured, educational or vocational activities.

Risk Assessment

[232] Dr. Wilkie explained that an assessment of risk begins with an actuarial or statistical appraisal of risk, which provides a numerical anchor-point as regards risk. These anchor-points tend to be under-estimates of risk, as it is known that individuals commit offences for which they are neither charged nor convicted. Once an actuarial estimate of risk is attained, one then attempts to address clinical or dynamic factors that may suggest an upward or downward movement of the statistical appraisal of risk. Adjustments based on clinical or dynamic variables should only be undertaken cautiously, as empirical research has shown that risk assessment tools are superior to clinical opinion in offering a probability of criminal recidivism over a defined period of time.

i) The Psychopathy Checklist-Revised (the “PCL-R”)

[233] The PCL-R defines and measures the extent to which an individual resembles the ideal of the prototypical psychopath. The PCL-R consists of 20 items, each of which may be scored 0, 1, or 2, thus rendering scores on a continuum ranging from 0 to 40.

[234] The PCL-R is comprised of two subscales. Factor 1 measures anti-social values and attitudes. Factor 2 measures indicia of behavioural dyscontrol. Dr. Hare, who devised the test, defines psychopathy, diagnostically, as being evidenced by a score of 30 or greater out of 40. However, other investigators have shown that significant risk of criminality begins when an individual has a PCL-R score in the mid-twenties or above.

[235] Dr. Wilkie and Dr. Penney independently scored M.J. at 28.2 on the PCL-R. Dr. Wilkie described this score as “pro-rated” since three items were omitted. The standard error of measurement range is +/- 3.25 points. This score is above average compared to a prison population and places M.J. at the 76th percentile compared to an updated sample contained in the most recent edition of the PCL-R manual. In other words, M.J.’s score was higher than approximately 75 percent of individuals in that prison population sample. His score on Factor 1 (12.6) places him at the 90th percentile compared to a prison inmate population. His Factor 2 score (13.8) placed him at the 68th percentile. His overall score is above average for a prison population and would be considered highly predictive of future general and violent recidivism.

[236] Dr. Wilkie scored M.J. on the PCL-R solely on the basis of file information. She testified that scoring in this way often underestimates an individual’s score. Statistically speaking, had she had the opportunity to interview M.J., his score may have been higher.

ii) The Violent Risk Appraisal Guide (the “VRAG”)

[237] The VRAG is considered to be one of the best actuarial instruments for predicting violence among male offenders. It is used for individuals with a prior history of violent offending and offers a probabilistic estimate of risk of committing a further violent offense over a subsequent ten-year period. Any hands-on violent offence would be considered violent recidivism according to this instrument.

[238] Both Dr. Wilkie and Dr. Penney scored M.J. at +17 on the VRAG. This score places M.J. at the 89th percentile compared to the developmental sample of male offenders (i.e., his score was higher than 88 percent of individuals in the development sample) and in the seventh of nine ascending categories of risk on the instrument. Among the developmental sample, 64 percent of offenders in the same risk category re-offended within 10 years of opportunity. Taking into account the estimated measure of error associated with the VRAG, M.J.’s true score would be expected to fall within one risk category above or below this instrument. This means that the expected probability of violent recidivism ranges between 58 percent to 82 percent within ten years of opportunity.

iii) The Sex Offender Risk Appraisal (the “SORAG”)

[239] The VRAG and the SORAG were developed by the same authors and the definition of violent recidivism is the same for both. The SORAG is recommended for use in individuals with a history of sexual offending. Dr. Wilkie scored M.J. on both instruments as there is more published research evidence and support of the predictability and reliability of the VRAG.

[240] Both Dr. Wilkie and Dr. Penney scored M.J. at +32 on the SORAG. This score places him at the 98th percentile (meaning that his score was higher than 97% of individuals in the development sample) and in the 9th of 9 ascending categories of risk or “bins.” Among the development sample, 100 percent of offenders in the same risk category committed a new violent offence within 10 years of opportunity. This score places M.J. in a high risk category. Taking into account the estimated measure of error associated with the SORAG, M.J.’s true score would be expected to fall within one risk category or bin above or below his score. Therefore, the probability of violent recidivism would be expected to range between 89 to 100 percent within ten years of opportunity.

[241] Dr. Wilkie testified that some researchers have indicated that the error rate may be broader than one bin above or below a score.

iv) The STATIC-2002 (Revised Version)

[242] The STATIC-2002 was devised as a screening tool to identify individuals at risk for future sexual offending. As such, it takes into account only a limited number of factors known to be related to sexual recidivism and only those that can typically be scored on the basis of historical information alone. It does not include factors known to be highly correlated with future sexual recidivism, such as psychopathy, and therefore has more limited reliability and validity.

[243] M.J.’s score on the STATIC-2002, according to both Drs. Wilkie and Penney, was 8 out of a possible score of 13. Compared to other adult male sex offenders in Canada, M.J.’s score falls between the 93rd and 96th percentile. Factoring in the confidence intervals, that means that 93 to 96 percent of Canadian sex offenders scored at or below M.J.’s score. Among individuals in the standardization sample who were in the same risk category, 39 percent sexually reoffended within ten years of opportunity. Dr. Wilkie noted that these risk estimates refer only to the individual’s risk for sexual recidivism, as compared with the VRAG and SORAG, which consider risk of both sexual and non-sexual violence. This expected rate of re-offence is 2.5 times the average rate of sexual re-offence among all sex offenders.

[244] M.J.’s score on the STATIC-2002 is associated with the high risk category.

[245] Dr. Wilkie concluded that M.J. resembles sufficiently closely the individuals used in the original samples in devising the above-named actuarial instruments that there is no reason to believe that the instruments should not be applicable to him. As well, there is nothing in M.J.’s clinical presentation or history to suggest that these risk estimates are over-estimates. In addition, he clearly embodies some clinical variables known to be related to sexual and violent recidivism, including the presence of an antisocial personality disorder and paraphilias. The personality disorder should likely be considered a static variable that will not specifically respond to intervention.

v) Dynamic risk variables

[246] Dr. Wilkie testified that consideration of dynamic factors that relate to fluctuating or situational factors (such as response to treatment and supervision, treatment of substance abuse difficulties, etc.) does not suggest a lower overall risk in M.J., although it does highlight areas that one might hope to intervene and better manage his risk.

[247] Overall, Dr. Wilkie viewed M.J. as being at high risk for general and violent recidivism from a purely clinical perspective, as well as from an actuarial perspective.

[248] Dr. Wilkie noted that this risk assessment applies primarily to the likelihood of a further violent offence occurring, but does not specifically address the question of severity of offending. She explained that risk assessment may be understood as a function of these two dimensions of risk, among others. For example, a relatively low likelihood of a very severe re-offence may be seen clinically as unassumable in the community, whereas a high likelihood of a less severe offence may be seen clinically as an assumable risk in the community. Unfortunately, the ability to estimate severity of future offending remains largely unknown, with only much weaker associations having been identified. This is, in part, a function of the difficulty inherent in estimating risk of the rarest forms of violence (murder, etc.) occurring.

[249] Dr. Wilkie noted that according to the diagnostic and statistical manuals, once an individual starts engaging in sadistic behaviour, particularly with a non-consenting partner, these behaviours can escalate over time: they become more frequent and the intensity of the behaviour may also increase. However, it is still difficult, if not impossible, to predict the future severity of offending behaviour.

[250] Dr. Wilkie testified that one may view M.J.’s history of re-offending as a way of potentially predicting future offences; in other words, the nature of his past offences may inform the nature of any future offending.

Dr. Wilkie’s assessment of dangerous offender status and long-term offender status pursuant to s. 753 of the Code

[251] For the purposes of her assessment, Dr. Wilkie focused on those aspects of the relevant sections of the Code where she felt a psychiatric opinion may be of assistance to the court. She did not offer an opinion in areas that involve questions of law, such as what would constitute a pattern of behaviour.

i) Dangerous offender status

[252] For the sake of convenience in terms of referencing Dr. Wilkie’s opinion to the relevant legislation, ss. 753(1)(a)(i) and (ii) and (b) (as those sections read prior to July 2, 2008) are set out below.

[253] Under ss. 753(1)(a)(i) and (ii), a court may find an offender who has committed a serious personal injury offence, such as sexual assault, to be a dangerous offender if the court is satisfied that 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 behaviour 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 behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through a failure to restrain his or her behaviour, or

(ii) a pattern of persistent aggressive behaviour 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 behaviour.

[254] Under s. 753(1)(b), a court may find an offender to be a dangerous offender if it is satisfied

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[255] With respect to s. 753(1)(a)(i), Dr. Wilkie noted that M.J. has been convicted of sexually assaulting numerous victims, including young people, strangers, and vulnerable individuals. At times, he has engaged in threats and violent behaviour during these assaults. He has shown a pattern of behaviour that shows a clear failure on his part to restrain his behaviour; said behaviour shows a likelihood of inflicting damage to future victims.

[256] With respect to s. 753(1)(a)(ii), Dr. Wilkie testified that M.J.’s history and behaviour suggests that he has significant difficulty in considering the antecedents and consequences of his antisocial behaviour. He has consistently shown a failure to accept responsibility for his actions, and has offended during periods of supervision in the community. He has largely refused to participate in any sex offender treatment programs. From a psychiatric perspective, this is consistent with his showing a significant degree of indifference to the potential effects of his behaviour on other persons. His capacity to empathize with others and to experience genuine remorse is limited.

[257] With respect to s. 753(1)(b), Dr. Wilkie testified that M.J. has clearly evidenced a failure to control his sexual impulses. He has engaged in assaultive behaviour towards numerous victims that at times has resulted in physical and psychological harm to the victim. In terms of future violent and sexual offending, from a psychiatric perspective, M.J. appears to fall within a high risk category. Of particular note is his SORAG score: individuals who had a similar score recidivated at a rate of 100 percent within ten years of opportunity.

[258] Dr. Wilkie concluded that from a psychiatric perspective, M.J. meets the criteria for dangerous offender status.

ii) Long-term offender status

[259] Section 753.1(1) of the Code states:

The court may … find an offender to be a long-term offender if it is satisfied that

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

(b) there is a substantial risk that the offender will reoffend; and

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

[260] According to Dr. Wilkie’s risk assessment, there is a substantial risk that M.J. will re-offend. From a psychiatric perspective, the concept of whether there is a “reasonable possibility of eventual control of the risk in the community” is not particularly well-defined. From a psychiatric perspective, the question of whether or not M.J. would meet the criteria for long-term offender status appears to hinge on whether he could be considered treatable and whether such treatment offers any hope that his risk could be managed within the community. In arriving at her opinion in this matter, Dr. Wilkie took the following factors into account.

Factor 1: Diagnosis and prognosis

[261] First and foremost, one needs to know what the likelihood of response to treatments and/or supervision is for any diagnosis. Once this is generally known, one can then look to the individual to see whether there is any reason to be more or less optimistic regarding that specific individual’s likelihood of benefiting from treatment and/or supervision in a manner that reduces recidivism. In M.J.’s case, his relevant current diagnoses are antisocial personality disorder (and psychopathic personality traits), substance abuse and his sexually deviant preferences.

[262] Research indicates that there appears to be a general decrease in violent offending among all individuals after the age of 40 to 45, which is non-specific in nature but may be related to biological variables, such as decreased testosterone, decrease in physical prowess and development of various medical conditions. This effect, which is sometimes referred to as the “burnout theory,” is not as pronounced with respect to sexual offenders with paraphilias, such as pedophilia or pedohebephilia. Dr. Wilkie explained:

Generally, it is believed that anti-sociality or anti-social behaviour tends to decrease with time and with age, but that people’s sexual preferences remain static. Therefore, sexual offending that may be driven by paraphilias or sexual deviance would decrease at a lower rate than would offending driven specifically by anti-sociality.

[263] In addition, the research relating to individuals high in psychopathic traits indicates that individuals scoring 25 or more on the PCL-R show a less robust response to treatment and/or supervision, with a greater likelihood of refusing treatment, or dropping out of treatment. Also, individuals with antisocial personality traits or disorders are typically less amenable to treatment. There is little evidence that these individuals benefit from treatment in terms of reducing recidivism.

[264] Taking into account M.J.’s diagnosis of antisocial personality disorder and his score of 28.2 on the PCL-R, Dr. Wilkie was of the view that his prognosis with regard to potential response to treatment is extremely poor.

[265] In terms of M.J.’s diagnoses of paraphilias, the research relating to the treatment of sexual offenders has been equivocal. The most optimistic research suggests a modest reduction of risk. When this diagnosis is combined with antisocial personality disorder and/or psychopathic traits, the likelihood of successful treatment is diminished.

[266] Dr. Wilkie testified that research indicates that substance-abusing offenders with concurrent antisocial personality disorder do not benefit from substance abuse treatment in the same manner as offenders who do not have an antisocial personality disorder, at least with respect to the impact on recidivism. However, there does appear to be a potential benefit in terms of reducing the frequency of substance use.

[267] Dr. Wilkie testified that overall, M.J.’s primary diagnoses (antisocial personality disorder, paraphilias, and substance abuse) are considered difficult to treat with a poor prognosis being associated with each. The combination of these diagnoses renders the prognosis for successful treatment (and a reduction in his risk for further violent offending) poor compared with other offenders.

Factor 2: Self-report of current motivation for treatment and/or supervision

[268] Dr. Wilkie testified that there is little to no research indicating that expressions of a desire to pursue treatment or to comply with supervision are related to reductions in recidivism. This is not surprising given that the majority of individuals, when faced with significant consequences for their actions, will indicate a desire to take whatever treatment is necessary. As a result, positive expressions of motivation to pursue treatment appear relatively non-specific and largely unhelpful in attempting to determine who is actually most likely to benefit from treatment and/or supervision. However, an expression of refusal to pursue treatment or to comply with supervision has been shown to be related to negative outcome and increased recidivism in antisocial individuals.

[269] Dr. Wilkie noted that M.J. was asked to leave the sex offender treatment program at Kingston Penitentiary after three-and-a-half months because of his general lack of engagement in the program and his denial that he had committed any sexual offences. Despite the fact that his acceptance of responsibility for the offences would have led to re-admission into the program and possibly contributed to his early release, M.J. continued to deny responsibility for the offences. Consequently, he received no further treatment while incarcerated. After his release, he did not pursue any treatment in the community for sexual offending.

[270] Dr. Wilkie noted that M.J. reported having taken anger management and substance abuse programs in the 1990’s, although records of his involvement in those programs were not available to her.

[271] Dr. Wilkie concluded that Factors 1 and 2, in combination, suggest a negative prognosis in terms of M.J.’s engagement or willingness to participate in a sex offender treatment program. She did not have enough information to comment on his willingness to participate in other programs at the present time.

[272] M.J. has testified at this hearing that he would participate in any and all programs offered to him.

Factor 3: Previous response to treatment and supervision

[273] Dr. Wilkie explained that in determining who will be a good candidate for treatment, assessors look to responses to previous treatment in order to assess the individual’s degree of motivation. However, she also noted that individuals who have shown a pattern of failing to benefit from past treatment may decide at a later date to truly engage in treatment.

[274] M.J. was dismissed from the sex offender treatment program at the RTC due to denial of responsibility and lack of engagement in the program. The only treatment programs that he completed while serving an eight-year sentence were a ten-week Cognitive Skills program and a nine-week Anger Management program. His participation in these programs was described as good and he was noted to have made some moderate gains in these areas. However, he did not participate in any of the follow-up or “booster” programs recommended to him.

[275] M.J. reported participating in a substance use program and an anger management program in the community in the 1990’s. The nature of this treatment and his response to same are unknown. He continued to evidence behaviour dyscontrol after his reported participation in these programs.

[276] Dr. Wilkie testified that it is unclear as to whether intensive supervision actually results in decreased rates of violent recidivism. However, there is some data that indicates a possible benefit in this regard. Previous responses to past supervision may be considered when trying to determine if an individual is likely to benefit from supervision in the future. In M.J.’s case, he has incurred new charges during periods of supervision. In particular, the predicate offence was committed while he was bound by conditions pursuant to a recognizance under s. 810.2 of the Code.

[277] Dr. Wilkie opined that the evidence on Factor 3 is risk enhancing for M.J..

Factor 4: Employment prospects and supports in the community

[278] Dr. Wilkie testified that it is unclear whether providing employment for individuals with M.J.’s cluster of difficulties reduces rates of recidivism, although it is reasonable to assume that there may be some benefit in this regard. Having stable relationships and supports within the community is also likely to benefit individuals such as M.J..

[279] Dr. Wilkie noted that there is limited personal information available about M.J., despite his lengthy period of incarceration and prior involvement with professional supervision. The availability of any supports in the community, the nature of his most recent employment and any interpersonal relationships flowing from it were unknown to her. M.J. has not been in contact with members of his family for many years.

[280] As a result of this lack of information – which she found, in and of itself, informative to a certain degree – Dr. Wilkie did not offer an opinion regarding the potential impact of this factor on M.J.’s risk.

Summary of Dr. Wilkie’s findings re long-term offender status

[281] Dr. Wilkie concluded that there are significant challenges, from a psychiatric perspective, regarding M.J.’s future manageability within the community, even if strict conditions were put in place and he were to agree to follow through with conditions and treatment recommendations. M.J.’s actuarial risk scores suggest that he is at high risk of re-offending, both violently and sexually, in the community. Dr. Wilkie was of the view that M.J. is not an assumable risk in the community at the present time.

[282] Dr. Wilkie testified that a sex offender treatment program would focus on having an impact on M.J.’s behaviour as opposed to trying to change his sexual preferences. She referred to the “Good Lives Model”, which is a treatment program offered in some federal institutions. This model focuses on a number of problem areas or “clusters”, such as cognitive distortions, empathy deficits, social difficulties, emotional problems and deviances. However, before M.J. commences any intensive sex-offender treatment program, his denial with respect to his current and past offences, and his motivation for treatment must be addressed. This initial phase or lead up to treatment would likely take some time. Dr. Wilkie emphasized that the goal of treatment is not only participation in or attendance at treatment but also the internalization of the principles of treatment so that M.J. “can take that forward for relapse prevention.”

[283] Dr. Wilkie testified that if M.J. were to be released into the community at some point, he would require intense supervision and support for a lengthy period of time. This would involve substantial resources and different organizations with different skills. She recommended that the following conditions be put in place in the event that the court finds M.J. to be a long-term offender:

a. M.J. should access and complete a wide variety of programs during a period of incarceration, including, but not limited to, cognitive skills, anger management, and programs to deal with antisocial attitudes. The utility of substance use programs should be further assessed. He should also be assisted in accessing vocational programs. He should continue with such programs upon any eventual release into the community.

b. M.J. should undergo extensive sex offender treatment programming, both while incarcerated and upon any eventual release into the community. Dr. Wilkie opined that such treatment continue in perpetuity. She also recommended that he receive treatment with an anti-androgen medication prior to release into the community. Dr. Wilkie viewed this as a critical component of M.J.’s release, although in and of itself, it is no guarantee of a reduction in M.J.’s overall risk for sexual recidivism. The medication should be initiated several months prior to his release in order to ensure that testosterone levels have been suppressed. Should M.J. refuse to continue with sex offender treatment, or with anti-androgen or other sex-drive reducing medication, then Dr. Wilkie would view his risk as very clearly unmanageable within the community.

c. M.J. should be prohibited from having contact with any individuals under the age of 16 in perpetuity.

d. All individuals tasked with treating and/or supervising M.J. should be made aware of his capacity for duplicity and manipulation; any information supplied by M.J. should be subject to independent verification.

e. M.J. should be required to abstain from alcohol and street drug use in perpetuity.

f. If M.J. enters into a further intimate relationship, that partner should be fully informed of M.J.’s history and should be advised to contact police immediately if they have any reason to fear M.J. is about to act in an aggressive fashion or resume the use of substances.

g. M.J. should be subject to intense supervision upon any eventual release into the community, including residential placement in a correctional facility in the community, with privileges for any unsupervised time away from the facility being earned through demonstrated compliance with the programs and supervision. A release should take place on a graduated basis, allowing for rapid intervention, should he fail to comply with all conditions.

h. M.J.’s whereabouts when outside the facility should be subject to verification, initially on at least a daily basis. Probation/parole officers should make regular, unannounced visits if M.J. is living outside of a correctional facility.

i. M.J. should be prohibited from having contact with any criminally oriented, or substance abusing peers outside of correctional facilities.

[284] Dr. Wilkie was questioned as to her recommendation that some of these conditions continue “in perpetuity,” which would seem to suggest that M.J. would have to be supervised in the community for a period exceeding ten years. Dr. Wilkie explained that from a psychiatric perspective, there is no point in time when M.J. could go on to use alcohol and/or drugs or where the other conditions suggested by her would not be of benefit to him. His risk with respect to sexual offending requires that these dynamic risk factors be addressed throughout his life. The goal in treating long-term offenders, who are generally high risk/high needs individuals, is to get them to the point where they have insight into their behaviour, take responsibility for their own actions and can manage such a risk on their own.

[285] In cross-examination, Dr. Wilkie agreed that the “big issue” in this case is whether M.J. will ever admit to having committed sexual assaults, whether he will take treatment and how he will respond to treatment. She testified:

I think all of those things are salient. I would also say, however, that his anti-social personality disorder and diagnosis of sexual deviance (that is, sexual sadism and pedohebephilia), which both are likely not amenable to change, are also relevant to the risk assessment going forward.

I think whether the individual is engaged in behaviours – sadistic behaviours – and also their level of insight into the paraphilia are salient. I would say, however, that the paraphilia in and of itself, which is a sexual deviance or primary arousal, you know, an arousal to deviant sexual stimulus, that’s not expected to change over time. So in other words, some of the things that we have talked about, the insight, the engagement in behaviours, those are things which may be amenable to treatment over time but not the sexual arousal in and of itself.

Q. Right. You are not going to teach someone who has a sexual preference that their sexual preference is wrong. You are just going to teach the person that they can’t act on it.

A. Yes.

Q. And that’s an attainable standard even for a person who suffers from sexual sadism?

A. Yes.

Q. So, to put a finer point on it, if M.J., the untreated sex offender, would actually get involved and get invested in his treatments, he might succeed in learning to control his behaviour – restrain his behaviour?

A. … [J]ust talking in more general terms, an individual could engage in treatment and be able to internalize some of the risk management principles in treatment. I think my concern with regard to M.J. and his treatability is that even before entering into a treatment program … the significant denial and minimization, which has been noted in the file, would have to be addressed and he would have to be willing to engage in a therapeutic relationship with treatment providers before the treatment even begins. And that would be of concern to me.

[286] It was Dr. Wilkie’s understanding that there are group programs available to offenders before they commence a sex offender treatment program that deal with the issue of denial. She was not able to provide any information about the success rate with respect to these programs.

[287] Dr. Wilkie was asked whether the recidivism rates for offenders who are deniers and who take a sex offender treatment program differ from the recidivism rates for offenders who are not deniers and who take the same program. Dr. Wilkie cautioned that the interpretation of recidivism rates after treatment is a complicated issue. There has only been one randomized control trial with regard to treatment of sex offenders which showed no impact on recidivism. Most of the studies are not randomized control trials and show some impact on recidivism. The fact that they are not randomized control trials is important in terms of trying to interpret the results. She continued:

The issue of whether there is a difference between people who are deniers or non-deniers, there is less of a difference, my understanding is, between deniers and not deniers than between people who participate, don’t participate. In other words, if you participate in the treatment and complete the treatment, even if you are a denier, your rate of recidivism tends to be lower than if you didn’t participate in the program and you are a denier.

[288] When asked whether it would be a positive indicator, in terms of risk reduction, if M.J. took a sex offender treatment program even if he refused to admit his offending behaviour, Dr. Wilkie testified:

I think that’s partly true. I mean, I think following through on treatment, completing treatment, often goes hand in hand with developing insight and taking responsibility. In other words, that’s part of being assessed as being successful in treatment and usually remaining in treatment. So I think denying all prior sexual offences would, in my estimation prove difficult to remain for the duration of treatment.

[289] Later on in her testimony, Dr. Wilkie noted that M.J. has denied not only the predicate offence but all of the sexual offences on his record. His denial was so entrenched when he was at the RTC that it was determined that he could not participate in treatment:

[O]ne of the things that was noted in the sex offender treatment program, …their opinion of [M.J.’s] presentation at that time, was that he did deny every past incident, save for the incident with his common law partner where he indicated that they were having consensual sex until she changed her mind, which he thought … should have significant consequences [to her], but it was their opinion at that time that he was engaged in very significant denial and minimization to the point where he could not participate in treatment.

EVIDENCE OF STEVEN POPOVSKI

[290] Steven Popovski, the Parole Officer Supervisor for the CSC at the Keele Centre, provided information regarding that facility and other residences available for high risk offenders who are bound by a long-term supervision order.

[291] The Keele Centre, which has 40 beds, is one of three community correctional centres operated and funded by the CSC. The other two, which are located in Hamilton and Kingston, have 25 and 27 beds respectively. Community correctional centres are to be distinguished from halfway houses, which are community-based residential facilities that accommodate certain parole cases. Typically, halfway houses will not accept offenders on parole who are serving sentences for violent offences and who are untreated at the time of their statutory release date as such offenders are regarded as posing a significant risk to the community. Community correctional centres, on the other hand, cannot refuse an offender with a residency condition. Thus, those at the highest risk to reoffend are usually placed in community correctional centres for at least some period of time.

Facilities and services at the Keele Centre

[292] The Keele Centre limits the number of beds occupied by sex offenders to a maximum of ten. The rooms are double-bunked. No meals are provided but unemployed offenders are given a weekly stipend for food and general expenses.

[293] Five parole officers work full time at the Keele Centre, with each carrying a caseload of seven to nine residents. Three full-time correctional officers are responsible for the security of the facility. An offender’s case management team includes the parole officer supervisor, a parole officer and a correctional officer. Several of the staff members are female.

Security

[294] Two correctional officers are on duty during the day, as well as a commissionaire, who works in the security booth. The correctional officers are replaced by two commissionaires after 9:00 p.m.

[295] The security booth is a secure area from which staff members are able to observe the residents and from which video surveillance is conducted of all areas except for the bathrooms and bedrooms. The surveillance operates 24 hours a day, seven days a week.

[296] The building is locked at 6:00 p.m. to prevent strangers from entering, but offenders may leave at any time unless they are subject to a curfew. Offenders are required to physically sign in at 9:00 a.m., 12:00 p.m. and 4:00 p.m.

Community Surrounding the Keele Centre

[297] The Keele Centre is located in a densely populated area, with several bars and at least three schools and a park in the immediate vicinity. Mr. Popovski had no statistics regarding sex offenders residing at the centre who have “failed” as a result of the location. He testified that sex offenders who are actively engaged in their treatment programs tend to do quite well at the centre because of the level of support available to them and the increased structure and monitoring that is offered.

Programs

[298] Both the Program Department and Psychology Department for the Central District of Ontario are located at the centre, which results in residents having greater access to programs and counselling than would normally be the case. A psychiatrist from the community runs a clinic once a week and provides injections of anti-androgen drugs on site. Two social workers from Community Mental Health, one of whom is a nurse, are at the centre during normal working hours and provide support to those offenders who have mental health issues. There is also a chaplaincy program. A resident who has full-time employment or is taking educational upgrading may participate in programs in the evening.

[299] Residents are assigned to programs based on their needs and are usually assigned to only one program at a time.

[300] Mr. Popovski was of the view that the Keele Centre is probably the best facility of its kind for offenders who require significant intervention, treatment and structure.

Developing a Correctional Plan

[301] At the time of Mr. Popovski’s testimony, an offender who was sentenced to a penitentiary term of imprisonment was initially sent to the Millhaven Assessment Unit, where a correctional plan was developed to address the factors that led to the individual’s incarceration. This initial assessment is now done at Joyceville Institution. The offender is then transferred to the institution with the appropriate level of service. For sex offenders, there are three possible levels of service: low, medium and high. A minimum two-year custodial term is required in order to allow for intake, assessment of needs and the commencement of the programs required to reduce the risk of reoffending.

[302] When an offender is sentenced to a reformatory term of imprisonment to be followed by a long-term supervision order, the correctional plan and a community strategy are developed at the provincial facility.

[303] The CSC does not have contact with offenders until after they have been sentenced.

[304] There are occasions when an offender who has served a significant amount of pre-trial custody receives a sentence of one day, followed by a long-term supervision order. In these cases, the CSC moves quickly to determine if a residency condition is necessary. If the CSC is of the view that residency is required, submissions to that effect are made to the Parole Board. [It is the Parole Board, as opposed to the sentencing judge, that determines if a residency requirement should be imposed as a condition of release, although the sentencing judge may recommend residency and/or other conditions.] Mr. Popovski testified that the CSC’s relationship with both Crown and defence counsel is such that it usually receives advanced notice of potential residency cases. The CSC generally asks judges to impose a sentence of at least 30 days in order to allow time to consider if residency at a community correctional centre or half-way house is appropriate. When the sentence is less than 30 days, the correctional plan is developed while the offender is in the community.

[305] Mr. Popovski described the correctional plan as the roadmap for an offender’s successful reintegration into the community and the most integral part of an offender’s rehabilitation. Each offender is provided a copy of their correctional plan, which is reassessed and updated every six months, or as needed.

[306] The correctional plan contains thorough documentation of an offender’s progress, including their motivation and engagement with the plan. Engagement is based on attendance at programs and internalization of the tools delivered at the programs. An offender’s accountability for his actions is also important to the correctional plan. The risk that an offender represents to the public is determined by examining the assessment tools in the correctional plan, such as engagement and accountability.

[307] Mr. Popovski observed that generally speaking, the offenders who tend to succeed are those who are motivated for change and engage in the treatment offered to them. Alternatively, those who tend to fail are those who are not so motivated, who refuse to take programs or treatment and who do not take responsibility for their criminal behaviour.

Circles of Support and Accountability

[308] The chaplain runs a Circles of Support and Accountability (“COSA”) program at the Keele Centre. After discussing the program with an offender and obtaining the offender’s consent, a parole officer may advise the chaplain that an offender could benefit from COSA. The chaplain then identifies four to six members of the community who are willing to work with the offender. According to Mr. Popovski, COSA has been involved in most of the cases where an offender has successfully completed a long-term supervision order.

[309] Mr. Popovski testified that an offender will not be recommended for the COSA program if he does not admit having committed the offences for which he has been convicted.

Long-term Supervision Orders: Length and Place of Residency

[310] There is no way to ensure that an offender will be assigned to a particular community correctional centre at the time of sentencing. The centre where the offender ends up is largely determined by the availability of beds. There is currently a bed space “crunch” because of a rise in the number of long-term supervision orders with residency requirements.

[311] Unless certain criteria are met, an offender must be released from custody after serving two-thirds of his sentence, whether or not he has completed any treatment programs. At that time, a facility must be found to accommodate the offender if there is a residency requirement as part of the long-term supervision order. If the 62 beds in the three Ontario community correctional centres are full, attempts will be made to place the offender in a halfway house. However, typically, the halfway houses refuse to accept an offender who is serving a sentence for a violent offence and who is untreated. The CSC also has a contract for seven to ten beds with the Maxwell Meighen Centre (“MMC”), which is a men’s shelter operated by the Salvation Army. An offender on a long-term supervision order with a residency requirement could temporarily be placed at the MMC, but that facility will not accept offenders convicted of sexual offences or arson. As a result, the only way to accommodate an untreated sex offender with a residency requirement may be to set up a temporary cot in a community correctional centre, even if this results in the centre exceeding its bed space allotment. In the alternative, a sex offender who has been at the Keele Centre for a while and has demonstrated that he can be managed in the community may be transferred to a half-way house, with the consent of that facility, in order to make room for the more recently-released and untreated sex offender with a residency requirement.

[312] The maximum length of a long-term supervision order is ten years. When the order expires, the CSC has no further responsibility for the offender. However, prior to the expiry of the order, parole officers will discuss a “release plan” with the offender and assist in setting up supports and connections within the community.

Violations and Rehabilitation

[313] Mr. Popovski testified that the Keele Centre, like other facilities where offenders have access to the community, has issues with substance abuse. There is a urinalysis testing program for those offenders who are required to abstain from alcohol and drugs. The staff also notes an offender’s demeanour when the offender signs in at the designated times during the day. A few days prior to Mr. Popovski’s testimony, five offenders tested positive for various drugs, including cocaine, heroin, and THC, thereby breaching a condition of their release. One resident was found in possession of a knife.

[314] When an offender has not complied with a condition of his long-term supervision order, the offender’s parole officer consults with the Parole Officer Supervisor and a decision is made as to whether the offender can still be managed in the community or whether he should be returned to custody. If the decision is made not to re-incarcerate the offender, the Parole Board is notified within 14 days and advised of the recommendation that an information not be laid under s. 753.3 of the Code for breach of the long-term supervision order. If the Parole Board agrees with this recommendation, no further action is required.

[315] If the Parole Board is of the view that an information under s. 753.3 should be laid, then the CSC could either have the offender taken into custody by issuing a suspension warrant or the police could arrest the offender for the s. 753.3 offence. In the latter scenario, the offender could be released on bail. When the offender has been detained pursuant to a suspension warrant, the police have up to 90 days to lay the criminal charge. If the offender has not been charged within that time frame, he is released and presumably returned to the community correctional centre or half-way house where he was residing. The long-term supervision order does not stop running during the 90-day period. In fact, it only stops running if and when the offender is convicted and sentenced to a new custodial term.

[316] An offender may be placed into custody when it is anticipated that he may breach a condition of the long-term supervision order. In these circumstances, a suspension for up to 90 days may be imposed in order to obtain an assessment, provide treatment and prevent the breach from occurring. The offender may also be placed in custody for up to 90 days if it is believed that he is a risk to himself or others. An offender who is released after a 90-day suspension and fails to comply with programs specified by the long-term supervision order be charged with a breach under s. 753.3 of the Code.

[317] The first 30 days of a suspension are served at a provincial facility. During that time, a post-suspension interview is conducted to determine whether the offender should be transferred to a federal facility for the remainder of the suspension. If the offender is ready to engage in rehabilitation, he may be returned to a community correctional centre. The CSC can also ask the Parole Board to lay an information if an offender is not engaging in treatment that is a condition of his long term supervision order. Mr. Popovski gave an example where an offender was attending psychological counselling sessions but was not engaging in the treatment. The Parole Board refused to lay a charge and ended up giving the offender another chance to engage with a different psychologist. When the offender failed to engage in those counselling sessions, he was charged under s. 753.3.

THE PRE-SENTENCE REPORT

[318] Mr. Nikolic met with M.J. on three occasions for the purpose of preparing a pre-sentence report. Throughout those interviews, M.J. maintained his innocence with respect to all his convictions for offences of a sexual nature, as well as the predicate offence. At p. 6 of his report, Mr. Nikolic states:

On each occasion, the subject was cooperative and polite. Although he answered questions put to him, he insisted on explaining his innocence on all of his past sexual offences, adding that he had pled not guilty on the current offence before the Court. M.J. remained consistent in maintaining his innocence (despite pleading guilty to his past offences) throughout the process and added that he plans to appeal his current finding of guilt. Overall, he took no ownership for any of his sexual offences but rather, stated that each of his victims were actually consenting partners. Such denial creates a challenging atmosphere for any counselling options after sentencing.

[319] Under the heading, “Assessment/Evaluation”, Mr. Nikolic observed that M.J.’s criminal record dates back to the early 1980’s and is peppered with numerous sexual offences, including the predicate offence. M.J. maintains his innocence and alternately claims the sexual activity was consensual or a case of mistaken identity.

[320] Mr. Nikolic noted that family relationships and ties of friendship are virtually non-existent in M.J.’s life and that his stated goal of completing culinary school and entering the food service industry, while laudable, is a distant dream at best. Mr. Nikolic continued:

The subject has indicated repeatedly that he will abide by any counselling decisions handed down by the Court. The writer does not doubt those intentions as it serves the interest of M.J.. The same cannot be said for his ability to successfully complete programming. Given the offences, some form of sex offender programming would be in order. However, M.J.’s denial of guilt of those offences places him and the Court in the proverbial Catch 22 situation. His denial, and by extension motivation to change would not immediately eliminate him from institutional or community based programs but at some point he would need to take some ownership of his past behaviour for any progress to occur. Failing that would mean either dismissal from programming or early cessation of it. Further complicating matters are the risk factors identified by Drs. Wilkie and Penney in their reports and the difficulties inherent in treating them. Unfortunately, without effective treatment, recidivism rates remain quite high in sex offender cases. Even with effective treatment, a strong support network is helpful in maintaining a stable lifestyle, something lacking in this case.

Aboriginal programs available to a long-term offender who identifies as Aboriginal without any external verification

[321] Mr. Nikolic’s research indicates that those who are unable to establish Aboriginal status are not barred from aboriginal services. Self-declaration as an Aboriginal person is taken at face value in the institutions and within at least some community organizations. Therefore, M.J. would be able to access services provided by Aboriginal agencies whether he is in or out of custody.

[322] Mr. Nikolic was of the view that if M.J. were to receive a penitentiary term of imprisonment, he would most likely end up at either Bath or Warkworth Institution following the initial assessment process at Joyceville. Both Bath and Warkworth Institution run programs for sex offenders. However, institutional sex offender programs are, for the most part, not culturally specific. Mr. Nikolic could find evidence of only one such program in Ontario (for Inuit sex offenders at Fenbrook Institution). He noted that any case management plan would require the cooperation of M.J..

[323] There are a number of other programs that the CSC offers to Aboriginal men, including the following:

1. A basic healing program, which is a primer (a re-introduction) for men who are disconnected from their Native culture;

2. In Search of Your Warrior, which is a high intensity anti-violence program; and

3. Aboriginal Family Violence Program.

[324] An elder and Aboriginal liaison officer is assigned to each institution.

[325] Upon release to a community facility, such as the Keele Centre, an Aboriginal Community Development Officer works to develop a case management plan with the offender. Dr. Jeff Aberacan, the psychologist at the Keele Centre, advised Mr. Nikolic that there is no difference between Aboriginal and non-Aboriginal sex offender treatment. Dr. Aberacan was of the view that sex offenders with long-term offender designations should complete sex offender counselling in an institutional setting prior to community release. When an offender denies having committed a sexual assault, as M.J. has done, extended individual counselling of one to two years is recommended.

[326] Dr. Julian Gojer of the Manasa Clinic in Toronto expressed a similar opinion. Dr. Gojer was not aware of any Aboriginal-specific sex offender programs. He told Mr. Nikolic that in the case of an offender with a lengthy history of sexual offences, a “multi-pronged, multi-faceted” therapeutic approach is recommended. Individual counselling is initially indicated, followed by counselling in a group setting. The initial goal would be to get the offender beyond the denial stage, which is caused, at least in part, by ego protection. The efficacy of any counselling when dealing with a denier is contingent on the denier’s level of engagement.

[327] Mr. Nikolic also spoke to Rob Peach of the Centre for Addictions and Mental Health (CAMH). Mr. Peach explained that offenders who deny or minimize their actions are still accepted at CAMH for both individual and group counseling. The criterion for acceptance is simply an individual’s willingness to engage in counselling/treatment, following a personal assessment (psychiatric and phallometric). However, counselling would be short-lived if there is no evident progress. It is also likely that a denier would be kept out of a group setting, at least initially, to avoid being a disruption. Mr. Peach indicated that there are no sex offender programs specifically for Aboriginal men.

[328] Mr. Nikolic noted that M.J. participated in the Native Spiritual Program while serving his eight-year sentence. M.J. told Mr. Nikolic that he was also involved in at least four native agencies prior to his incarceration.

[329] Mr. Nikolic suggested that the possibility that M.J. suffers from Fetal Alcohol Syndrome, which was mentioned by his sister, Joy Johnstone, should be explored in the future.

THE LEGAL FRAMEWORK GOVERNING A DANGEROUS OFFENDER APPLICATION

[330] The Crown seeks to have M.J. declared a dangerous offender under ss. 753 (1)(a)(i) and (ii), and s. 753(1)(b) of the Code. The Crown is required to establish all the criteria set out in at least one of these sections beyond a reasonable doubt before the court may make a dangerous offender designation.

[331] The legal framework that governs a dangerous offender application was summarized in R. v. Ziegler 2012 BCCA 353 at paras. 6-11, [2012] B.C.J. No. 1755. The Court observed that pursuant to R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, the hearing is guided by the same evidentiary principles and objectives as other sentencing proceedings. Hearsay may be adduced if it is credible and trustworthy. Aggravating factors that are challenged by the offender must be proved by the Crown beyond a reasonable doubt: R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368 at 414-415, 140 D.L.R. (3d) 612. These common law rules have now been codified in ss. 723 and 724 of the Criminal Code. An offender who challenges any fact must do so clearly and unequivocally: R. v, Ford, 2010 BCCA 105 at para. 59, 254 C.C.C. (3d) 442.

[332] The Crown may rely on the offender’s criminal record, as well as the circumstances surrounding any prior offences. The Crown need not prove the earlier convictions by calling the witnesses who testified at those trials, but may instead rely on hearsay evidence from reliable and trustworthy sources, such as court records: Ziegler, at para. 8.

[333] The Crown may also rely on evidence of past conduct of the offender that was not the subject of charges, if it is admitted in accord with the normal rules of evidence. If these past events are denied, they must be proven beyond a reasonable doubt: Ziegler, at para. 10.

[334] The opinions of psychiatrists and psychologists as to future risk and treatment options often play a significant role in dangerous offender proceedings. While it is permissible for such experts to refer to second-hand information in formulating their views, the weight of their opinions may be diminished if they are based on unproven or unreliable information. A psychiatric opinion is not evidence of the facts upon which it is based. The court must be independently satisfied as to the truth of those facts: Ziegler, at para. 11, citing R. v. Wilband, 1966 3 (SCC), [1967] S.C.R. 14 at 21, 9 D.L.R. (3d); R. v. Knight (1975), 1975 1424 (ON SC), 27 C.C.C. (2d) 343 at 354-356 (Ont. S.C. (H. Ct. J.)); and R. v. Pike, 2010 BCCA 401 at paras. 61-63.

The records relied on by the Crown in this case

[335] In the present case, the Crown tendered documents from the CSC and the CAS. Counsel for M.J. did not object to the admissibility of these records, which are clearly relevant. They may also be regarded as credible and trustworthy as they were prepared by professionals who were carrying out important and responsible public duties: R. v. P.G., 2012 ONSC 5527, at para. 8; R. v. Gregoire (1998), 1998 17679 (MB CA), 130 C.C.C. (3d) 65 at paras. 53 and 62-3 (Man. C.A.); R. v. Piché (2006), 2006 ABCA 220, 210 C.C.C. (3d) 459 at paras. 9-20 (Alta. C.A.) [2012] O.J. No. 4612. However, the accuracy of parts of these records was put in issue by M.J., who, during his testimony, denied making various statements or doing certain acts attributed to him by the authors of the reports; for example, he denied setting fires or being cruel to animals, as reported in the CAS records; he denied telling Dr. Dickie that he had been exclusively homosexual all his life and that his female partners wore “strap on” devices during sex to mirror homosexual sex; he acknowledged questioning Dr. Dickie’s qualifications – he had heard that she was a student – but denied stating that she was not registered and that he had the paperwork to prove it; he also denied telling Mr. Malcolm that the real perpetrator of the sexual assault on M.R. was his uncle.

[336] Defence counsel submits that in those instances where M.J. denied making a statement, it was incumbent on the Crown to call the authors of the reports and make them available for cross-examination. He submits that in the absence of such evidence, the court ought not to put any weight on the impugned statements. Reliance is placed on R. v. Albright (1987), 1987 26 (SCC), 37 C.C.C. (3d) 105 at 114-115 (S.C.C.), where the Court held that in cases where an admissible hearsay document’s accuracy is seriously put in issue, it is incumbent upon the Crown to call the person who signed the document and make that person available for cross-examination.

[337] I agree with defence counsel that the Crown was obliged to call the persons who recorded the statements that M.J. categorically denied. In the absence of those witnesses, I place no weight on the alleged statements. I also bear in mind that the weight to be given to Dr. Wilkie’s opinion, to the somewhat limited extent that she referred to and relied on those particular statements, is accordingly diminished.

[338] Counsel for M.J. further submits that when M.J. testified that he did not remember making a particular statement, he was essentially denying having made it and that the Crown was therefore obliged to call the author of the report.

[339] The Crown submits that on those occasions when M.J. testified that he did not remember making an alleged statement, the accuracy of the statement was not seriously put in issue. As a result, there was no obligation on the Crown to call the witness who recorded the statement. Crown counsel took the position that M.J. was clearly aware of the distinction between denying versus not remembering having made a particular statement.

[340] I agree with the Crown’s submission in this regard. After carefully considering M.J.’s evidence, I have no doubt that M.J. was fully attuned to the difference in meaning between “I never said that” – which is a flat out denial – and “I don’t remember saying that,” which implies that he may have made the statement but simply does not recall it. For example, during cross-examination, M.J. was asked if he had stated, as reported in the CSC records, that he could not sexually assault his girlfriend by virtue of the fact that she was his girlfriend. M.J. replied, “No, I don’t remember saying that.” He was then asked, “Is it that you don’t remember or is it that you didn’t say it?” M.J. responded, “I don’t remember saying this.”

[341] I also note that there is no evidence suggesting that the authors of the reports had a motive to make up or fabricate statements made by M.J.. There is no evidence of any animus towards M.J.. M.J. made no mention of having a “beef” with any of these individuals. In my view, the circumstances are such that the Crown was not obliged to produce the authors of the statements that M.J. simply says he cannot recall. Furthermore, having taken into account the totality of the circumstances regarding each of these statements, including the fact that they were recorded by persons responsible for making reports about M.J.’s activities and progress within the prison system, I am satisfied that M.J., although not recalling the statements, did, in fact, make them.

[342] However, as stated above, I have not given any weight to those statements contained in the records that M.J. explicitly denied, given the absence of an opportunity by the defence to cross-examine the individuals who recorded those statements.

Proof of prior criminal convictions and the facts underlying those convictions

[343] M.J. denies having committed the seven sexual offences on his criminal record. These convictions are relevant both for the purpose of considering the strength of Dr. Wilkie’s opinion, which relies on them, and for the purpose of determining whether it has been proven beyond a reasonable doubt that there is a reasonable likelihood of the commission by M.J. of the future proscribed harm under s. 753.

[344] The defence submits that since these prior convictions are aggravating factors on the dangerous offender application, the Crown must “re-prove” these offences, which span the time period between 1982 and 1997, beyond a reasonable doubt. Defence counsel submits that the Crown has not met its burden in this regard. None of the complainants were called as witnesses and the Crown, for the most part, relied on the police synopses or summaries of the facts. Mr. Brodsky referred to P.G., where Code J., at para. 8, observed that the facts set out in a police synopsis at the time of arrest are often not reliable and do not always reflect the facts that are later proved at trial or admitted on a guilty plea. However, in light of M.J.’s evidence, that is not the situation in the present case.

[345] During his testimony, M.J. acknowledged that the facts as alleged in the various police synopses were the facts that he admitted as being correct when he entered his guilty pleas. M.J. then went on to explain why he pleaded guilty to all of these offences, notwithstanding his innocence.

[346] I note that there is no dispute regarding the facts admitted by M.J. when he pleaded guilty to choking and four counts of sexual assault on November 14, 1997, as the transcript of that proceeding was filed as an exhibit. M.J. testified that he pleaded guilty to these offences in order to avoid a dangerous offender application being brought by the Crown. Transcripts of the other earlier guilty pleas were not available because of the passage of time. Court reporters are apparently not required to keep recordings of court proceedings for longer than seven years.

[347] The position of the defence is that M.J.’s explanations for pleading guilty to offences that he says he did not commit are credible and should be accepted as true. Mr. Brodsky noted that M.J.’s denials began long before the Crown brought this dangerous offender application: he consistently denied his guilt regarding any sexual offences while serving his eight-year sentence.

[348] Crown counsel acknowledges that while it was open to M.J. to explain away his prior convictions, which he has attempted to do, the evidence of his guilty pleas and the factual underpinnings of the pleas are powerful and reliable evidence that the court should not easily dismiss unless the offender has established a compelling reason to do so. Mr. Cole submits that M.J. was not a credible witness and that his explanations for pleading guilty should be rejected out of hand.

[349] In R. v. Jesse 2012 SCC 21, [2012] 1 S.C.R. 716, the Court, in considering the admissibility of a prior conviction in the context of a similar act application, made it clear that guilty verdicts carry a high degree of reliability. I would note that unlike the present case, where M.J. pleaded guilty to the prior offences, the appellant in Jesse pleaded not guilty and always maintained his innocence with respect to the previous conviction. He was found guilty after a trial by judge and jury. At paras. 39, 41-42 and 46-47, Moldaver J., in speaking for the Court, stated:

In the criminal context, we act on verdicts to deprive people of their liberty, sometimes for life. What better yardstick against which to measure the high degree of reliability we place in them. While not foolproof, our criminal justice system contains a myriad of safeguards designed to ensure that people accused of crimes receive a fair trial and that only those who are in fact guilty are found guilty.

Thus, verdicts are not mere ‘opinions’; they are the considered result of informed deliberations and, as a result, carry a high degree of reliability. Were it otherwise, we would not and could not rely on them to deprive people of their liberty.

Against that backdrop, I find it counterintuitive and mechanistic to adopt a rule that automatically rejects trial verdicts for their truth on the basis that they constitute hearsay/opinion evidence of questionable value. In reality, they rank extremely high on the reliability scale and that is how they should be viewed when deciding whether they can be admitted for their truth.

In the circumstances, I am satisfied that the trial judge made no error in receiving the 1995 conviction on the similar fact voir dire for the limited purpose of linking the appellant to the sexual assault on J.S. The verdict giving rise to that conviction constituted highly reliable evidence. Moreover, it comprised the best evidence the Crown had available to it to refute the appellant’s contention that he was not J.S.’s assailant. As the trial judge observed, the long gap between the J.S. and J.M. incidents had taken a toll on the Crown’s ability to re-prove the J.S. case. Memories had faded, witnesses were missing and the trial transcripts were not available. The appellant’s 1995 conviction, however, remained constant and undisturbed. At a minimum, it provided ‘some evidence’, as required by Arp, that he was the person responsible for the assault on J.S.

Indeed, in my view, a prior conviction would constitute sufficient evidence upon which a trier of fact, on the trial proper, could conclude on a balance of probabilities that an accused was the perpetrator of the prior act that formed the basis of the conviction. The trier of fact would be entitled, but of course not bound, to make such a finding. Needless to say, in deciding the matter, the trier of fact would consider any evidence the accused might adduce on the subject. The same would hold true if the accused were to challenge any of the other essential elements of the crime that formed the basis of the similar fact evidence. [Emphasis added].

[350] The case law makes it clear that because a plea of guilty and the facts in support of it are admissions, they may be introduced against an accused person as an admission in certain situations at subsequent judicial proceedings. In R. v. C.(W.B.) (2000), 2000 5659 (ON CA), 142 C.C.C. (3d) 490 (Ont. C.A.) at pp. 510-11, the Court stated:

Although an admission can be admitted in evidence against a party in a subsequent criminal or civil case, it is always open to the party who has made the admission to testify that he or she never made the admission, or to qualify it in some other way: The Law of Evidence, supra, at 287 and 291.

The appellant chose to testify at his 1997 trial and, therefore, had an opportunity to explain and to qualify his guilty plea. He testified that the admission of guilt in 1991 was untrue. He testified that he did not sexually assault K.B. and that he pleaded guilty to the charge because his lawyer had made a deal. The deal was made, according to the appellant, ‘because my lawyer didn’t want to cross-examine K.B.’ In effect, the appellant’s recantation of his 1991 plea was akin to a recantation of a confession. This recantation went to the weight to be accorded to his prior admission, not to its admissibility.

[351] In R. v. Ford (2000), 2000 5701 (ON CA), 145 C.C.C. (3d) 336 (Ont. C.A.) at pp. 346-7, the Court observed that a plea of guilty is an admission of the facts in issue and a waiver of strict proof of the charge. Absent evidence to the contrary, a plea of guilty must be assumed to be voluntary and informed. Once such a plea is made, the conviction which is entered is part of the public record. The Court continued:

It works no injustice on the accused to permit the guilty plea and conviction to be admitted as evidence of the truth of the facts for which they stand at a subsequent criminal trial: see R. v. Duong (1998), 1998 7124 (ON CA), 108 O.A.C. 378, 124 C.C.C. (3d) 392. It remains open to the accused to challenge or explain the previous conviction if he so desires. No challenge or explanation was made in this case.

[352] In the present case, M.J. has recanted his admissions of guilt with respect to all the sexual offences on his criminal record and offered various explanations for having pleaded guilty to these offences, despite his innocence. I did not find M.J.’s testimony in this regard to be credible or reliable for a number of reasons.

[353] The CSC records indicate that M.J. blamed all the victims for his wrongful convictions and asserted that they had either lied, fabricated stories or “come on” to him. M.J. confirmed during his testimony that in his view, the victims were solely responsible for the many miscarriages of justice that he has suffered over the years.

[354] It is of some significance that M.J. is not protesting his innocence with respect to just one or two convictions but with respect to all seven sexual offences, which span a substantial period of time. The offences in question commenced when M.J. was 17 years old and continued into his thirties, when he entered his guilty pleas before Ferguson J. M.J. also maintains his innocence with respect to the predicate offence, which took place when he was 42. There is no evidence of collusion among any of the victims, who tended to be young and vulnerable. Two of the victims were choked. Two of them had their heads banged on the ground. In my view, the likelihood of all of these victims over the years having been mistaken or lying, resulting in wrongful convictions, is highly improbable to say the least.

[355] It is also noteworthy that M.J. does not dispute his guilt with respect to any of his convictions for non-sexual offences. He would have the court believe that by some strange coincidence, the only occasions on which he has been wrongfully convicted are for offences that could have a significant impact on this dangerous offender application.

[356] In assessing M.J.’s credibility, I also take into account the numerous inconsistencies in the statements he has made over the years about the offences to which he has pleaded guilty. Some of these inconsistencies, as well as other problematic aspects of his evidence, are set out below.

[357] M.J. testified that he pleaded guilty in 1984 to indecently assaulting the ten-year-old male because Crown counsel agreed to a conditional discharge and probation, and M.J. wanted to get the matter over with. According to M.J., the victim was mistaken when he said that M.J. assaulted him. The police only charged him with this offence after he refused to testify against the co-accused, Mr. Hoyle. However, according to Dr. Dickie’s Discharge Report, M.J. stated that he was charged because he would not give Mr. Hoyle’s name to the police. The Discharge Report further reports M.J. as stating that he watched Mr. Hoyle abusing the boy but did not participate in the abuse himself. He asserted that “children can make their own decisions if they want to have sex with an adult.”

[358] M.J. testified that he pleaded guilty to the 1984 sexual assault on J.M. because the Crown agreed to a suspended sentence and because he wanted to get the matter over with. M.J. testified that the sexual activity between himself and the 13-year-old female was consensual and took place on the stairwell, as opposed to under the stairs and at the bottom of the stairwell, as alleged in the synopsis. In the Discharge Report, M.J. is reported as stating that the sexual activity took place outside the elevator.

[359] With respect to the 1996 conviction for sexually assaulting P.B., age 18, M.J. maintained that all the sexual activity between them was consensual and that P.B. agreed under oath that it was consensual. Following her testimony, the Crown offered him a “deal” of one day plus time served if he pleaded guilty. M.J. took the deal “to get it over with.” Thus, according to M.J., despite P.B.’s testimony that he had not sexually assaulted her, the sentencing judge accepted his guilty plea to that offence. M.J. was represented by legal counsel at the time.

[360] M.J.’s version of events regarding his guilty plea to sexually assaulting P.B. is not credible.

[361] M.J. testified that he pleaded guilty to one count of choking and four counts of sexual assault before Ferguson J. on November 14, 1997, in order to avoid a dangerous offender application.

[362] On that day, he pleaded guilty to sexually assaulting S.J., age 14, whom he enticed to the Riverdale Zoo on the pretext of offering her a job. However, M.J. gave a completely different version of events during his testimony at this trial, stating that S.J came into the room where he was sleeping at her parent’s home, woke him up and performed oral sex on him. He gave another version of events when he was enrolled in the sex offender treatment program at the RTC. According to those records, M.J. stated that S.J.’s mother was angry with him for taking her husband out drinking. In order to get even, she had her daughter allege that M.J. had sexually assaulted her. M.J. did not recall making the latter statement but did not deny making it. I am satisfied that he did, in fact, make it.

[363] M.J. gave yet another version of his encounter with S.J. during his intake assessment at Millhaven. It seems that he acknowledged to the authors of the Assessment Report that this incident took place at the Riverdale Zoo. However, he maintained that S.J. “came on to [him].” He spurned her advances by pushing her away, using her breasts as a push (away) point. Although M.J. testified that he did not recall making the latter statement, I am satisfied that he did, in fact, make it.

[364] M.J. pleaded guilty to sexually assaulting M.R., the mentally challenged 19-year-old whom he met at a variety store and whom he convinced to accompany him to a nearby building where he dropped off his two young nieces. The transcript of the proceedings before Ferguson J. indicates that the sexual assault involved M.J. attempting to have sexual intercourse with M.R. twice – first in a laneway and then in a garden shed. When a passer-by appeared, M.J. fled.

[365] M.J.’s version of events with respect to this incident raises concerns with respect to both his credibility and reliability. It was M.J.’s recollection that this charge was withdrawn (it clearly was not) because “the DNA did not match mine.” It would seem that M.J. viewed the allegations pertaining to M.R. as a case of mistaken identity, although he acknowledged having met her at the variety store and that she walked with him and his two nieces to the apartment building. According to M.J., there was no sexual assault and when she wanted to leave, “I let her go.”

[366] M.J. pleaded guilty to sexually assaulting his 19-year-old common-law partner, V.M.H., in February 1997, which involved choking her, having sexual intercourse without her consent, and forcing her to perform fellatio. During his testimony, M.J. admitted slapping V.M.H. during an argument but could not recall what the argument was about or what caused him to become so angry that he resorted to physical violence. According to M.J., he and V.M.H. had consensual sex after he assaulted her.

[367] According to Dr. Dickie’s Discharge Report, M.J. stated that he and V.M.H. engaged in consensual sex until the last minute, when V.M.H. changed her mind and did not want him to ejaculate inside her. M.J. ignored her wishes and did ejaculate inside her. M.J. is noted as expressing the opinion that men should be able to charge women when they do this type of thing. M.J. testified that he could not recall making this comment. I am satisfied in the circumstances that he did make it.

[368] M.J. pleaded guilty to choking V.M.H. to the point of unconsciousness on March 5, 1997, telling her, “Why don’t you die? You’re stubborn.” According to the facts admitted by M.J. as part of his plea, V.M.H. had ended her relationship with him and was pregnant with his child at the time. M.J. testified at this hearing that he and V.M.H. had not separated and that it was not until after his arrest that she moved to a shelter. However, according to the CSC Assessment Report, M.J. told Mr. Malcolm that he had ended the relationship and had “thrown [V.M.H.] out” because she had started using illegal drugs.

[369] M.J. testified that he did not know that V.M.H. was pregnant in March 1997 and only learned of the pregnancy while he was serving his eight-year sentence. However, the Progress Report, dated September 14, 1999, notes that M.J. admitted that he knew V.M.H. was pregnant at the time of the assault.

[370] M.J. testified that he slapped V.M.H. on March 5, 1997, but only once. It was a slap as opposed to a punch because he “does not punch women.” He testified that he then jumped on the TTC. He did not remember telling her “Why don’t you die? You’re stubborn.”

[371] Although M.J. admitted during his testimony that he slapped V.M.H., he denied physically assaulting her when he spoke to Mr. Malcolm. According to the Assessment Report, M.J. stated that V.M.H. was threatening him with a metal bar. In order to “defend” himself he pushed her against a wall, using her throat as the pushing point, and then took the bar away from her. In my view, this explanation for having put his hands to V.M.H.’s throat stretches credulity. I note its similarity to M.J.’s explanation for having touched S.J.’s breasts – that is, that he used her breasts as a “push (away) point” when she “came on to him.”

[372] M.J. is also noted in the Assessment Report as stating that he could not sexually assault his former girlfriend by virtue of the fact that she was his girlfriend. In cross-examination, M.J. did not deny making this statement but could not recall making it. I am satisfied that he did make it. When asked whether he believed that such a statement was true, M.J. replied, “I don’t know.”

[373] M.J. testified that the first time he met B.M., age 15, was at the Maple Leaf Tavern, where she propositioned him. He paid her $50. They stepped out of the bar and she performed oral sex on him. They also had sexual intercourse. They then both returned to the bar, where he continued to play pool and B.M. was “running around” and going from table to table.

[374] The CSC records indicate that M.J. gave conflicting stories with respect to his denials that he sexually assaulted B.M. He initially took the position that he did not know her and that it was a case of mistaken identity. However, during a case conference in September 1999, he stated that he met B.M. through mutual friends but maintained that he did not sexually assault her.

[375] There were many instances where M.J.’s testimony was internally inconsistent. For example, M.J. initially testified that he had never seen the CSC records, but retreated from that position when it was pointed out to him that he had signed many of the documents. He initially testified that he never saw the Discharge Report and was never given the opportunity to agree or disagree with its contents. However, he later backtracked on both of these assertions, eventually testifying that the entire document was read to him and that he was asked for feedback but chose not to give any. M.J.’s assertion that he never received the letters sent to him from the Parole Board, dated November 5, 2004, and October 13, 2005, advising him that he would not be getting parole, were not, in my view, credible.

[376] In summary, M.J. pleaded guilty to all the sexual offences on his record. His guilty pleas were voluntary, unequivocal and informed. M.J. was aware of the allegations made against him and the effect and consequences of his guilty pleas. He was represented by counsel at all times. He never sought to set aside any of his guilty pleas. He did not appeal any of his convictions. Despite his guilty pleas, M.J. maintains that he is not guilty of any of these offences and that he has been wrongfully convicted on multiple occasions starting in 1984. M.J. has offered various explanations as to why he pleaded guilty on so many occasions when he was innocent of the charges. For the reasons outlined above, I did not find M.J.’s testimony in this regard to be reliable or credible and I categorically reject it. In my view, M.J.’s convictions, based on his guilty pleas, constitute highly reliable evidence that M.J. did, in fact, commit those offences. Indeed, taking into account all of the circumstances, there can be no doubt about it. As a result, Dr. Wilkie’s opinion evidence may be accorded significant weight.

REQUIREMENTS FOR A DANGEROUS OFFENDER DESIGNATION

[377] The Crown must establish beyond a reasonable doubt that M.J. meets all the criteria for a dangerous offender designation set out in ss. 753(1)(a)(i) and (ii), and 753(1)(b) of the Code.

[378] M.J. obviously committed the necessary predicate offence, as sexual assault is identified as a “serious personal injury offence” in s. 752 (b). There is no requirement that the Crown establish that the predicate offence pass a high seriousness threshold in order to support a s. 753(1) application. It is sufficient that the offender has committed a serious personal injury offence; the inquiry then turns to the dangerousness of the offender: R. v. M.B.H., (2004), 2004 14199 (ON CA), 70 O.R. (3d) 257 (C.A.).

[379] There is a common sense inference that when M.J. sexually assaulted M.M., he “failed to restrain his … behaviour” (a criterion under s. 753(1)(a)(i)), and showed a “substantial degree of indifference … respecting the reasonably foreseeable consequences” to the victim (a criterion under s. 753(1)(a)(ii)). He also failed to “control his … sexual impulses (a criterion under s. 753(1)(b)).

[380] M.J.’s convictions for sexual offences between 1984 and November 17, 1997, when he received the eight-year sentence for choking and four counts of sexual assault, and the predicate offence committed in 2007, establish the criteria of “a pattern of repetitive behaviour” and “a pattern of persistent aggressive behaviour” in ss. 753(1)(a)(i) and (ii) respectively. M.J. has sexually assaulted numerous victims, including young people, strangers and vulnerable individuals. At times, he has engaged in threats and violent behaviour during these assaults. He has consistently denied and minimized his behaviour, refusing to accept responsibility for his actions. He has offended during periods of supervision in the community. His refusal to engage in the sex offender treatment program reflects, as Dr. Wilkie testified, a substantial degree of indifference to the potential effects of his behaviour on other persons. I accept Dr. Wilkie’s opinion that M.J.’s capacity to empathize with others and to experience genuine remorse is limited.

[381] Sections 753(1)(a) and (b) speak of the likelihood of future conduct. Under s. 753(1)(a)(i), the court must consider whether there is 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 … behaviour.” Under s. 753(1)(b), it must be established that there is “a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his … sexual impulses.” As noted by Code J. in R. v. Gibson, 2013 ONSC 589, [2013] O.J. No. 490, at para. 18, predicting future conduct is notoriously difficult and the exact meaning of the s. 753 “likelihood” test is subtle. The ordinary dictionary meaning of the word “likelihood”, as well as its normal legal usage, is “probability”, that is, something more than mere “possibility.” Code J. continued:

When applying this meaning to the ‘likelihood’ test found in s. 753, the courts have stressed that it refers to probable ‘risk’ or ‘potential for harm’, as a present fact, rather than to proof of a future event which would be an impossibility.

[382] The expert testimony in the present case is that M.J., from both a clinical and actuarial perspective, is at a very high risk for violent re-offence. Dr. Wilkie testified that M.J. does not suffer from a major mental illness, but he does meet the criteria for conduct disorder, antisocial personality disorder, polysubstance abuse, and two paraphilias, namely pedohebephilia and sexual sadism.

[383] M.J.’s score of 28.2 on the PCL-R is above average for a prison population and would be considered highly predictive of future general and violent recidivism. His VRAG score of +17 means that the expected probability of violent recidivism ranges from 58 to 82 percent within ten years of opportunity, taking into account the estimated measure of error associated with the VRAG. According to M.J.’s SORAG score, the probability of violent recidivism ranges between 89 to 100 percent within ten years of opportunity. Similarly, M.J.’s score on the STATIC-2002 is associated with the high risk category. Ninety-three to 96 percent of Canadian sex offenders scored at or below M.J.’s score. Among individuals in the standardization sample who were in the same risk category, 39 percent sexually reoffended within ten years of opportunity. [Dr. Wilkie noted that these risk estimates refer only to the individual’s risk for sexual recidivism, as compared to the VRAG and SORAG, which consider risk of both sexual and non-sexual violence.] This expected rate of re-offence is 2.5 times the average rate of sexual re-offence among all sex offenders.

[384] Dr. Wilkie testified that there is nothing in M.J.’s clinical presentation or history to suggest that these risk estimates are over-estimates. In addition, the diagnosis of antisocial personality disorder, pedohebephilia and sexual sadism are clinical variables known to be related to sexual and violent recidivism.

[385] Dr. Wilkie was not challenged in cross-examination with respect to her scoring, her diagnoses, the many areas of treatment and programs that M.J. would need to take while in custody before being released back into the community, and the controls that would have to be in place if and when he is released.

[386] I am satisfied that there is a “likelihood” of M.J. causing injury to others in the manner described in ss. 753(1)(a) and (b).

[387] I conclude that the Crown has established beyond a reasonable doubt that M.J. meets all the criteria for a dangerous offender designation set out in ss. 753(1)(a)(i) and (ii), and 753(1)(b) of the Code.

REQUIREMENTS FOR A LONG-TERM OFFENDER DESIGNATION

[388] Pursuant to the pre-July 2008 version of s. 753 of the Code, a sentencing judge, after finding that an offender has met the criteria to be declared a dangerous offender, must consider the applicability of the long-term offender provisions under s. 753.1: Johnson, at para. 32.

[389] Under s. 753.1(1), the court may find an offender to be a long-term offender if it is satisfied that:

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

(b) there is a substantial risk that the offender will reoffend; and

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

[390] The criteria in both (a) and (b) have been met.

[391] Taking into account the circumstances of the sexual assault on M.M. and M.J.’s prior criminal record for similar offences, a sentence exceeding two years would be appropriate. One of the aggravating factors present in this case is M.J.’s pursuit of M.M. the day after he sexually assaulted her. M.M. had made it clear to him that she wanted him to stop when he grabbed her and squeezed her breast – she pushed him so hard that he fell to the ground. But M.J. was not prepared to accept her rejection of him or to take ‘no’ for an answer. He waited for M.M. at the street car stop the next morning and, when she got off, immediately approached her. Fortunately, the police were present and arrested him. During a strip search, M.J. was found to be wearing a penis ring. I did not find M.J.’s explanations as to why he was wearing the ring to be credible.

[392] Based on M.J.’s pattern of serious criminal conduct over the years and the expert testimony of Dr. Wilkie, as reviewed above, there is a “substantial risk” of re-offence pursuant to s. 753.1(2).

[393] The remaining issue to be addressed at this stage is whether there is “a reasonable possibility of eventual control” of M.J.’s risk of re-offending.

[394] While the Crown must establish beyond a reasonable doubt that an offender meets the dangerous offender criteria, the Crown does not bear this onus of proof in relation to the question of whether there is a reasonable possibility of eventual control of an offender’s risk. As stated by Simmons J.A. in R. v. F.E.D., 2007 ONCA 246, 84 O.R. (3d) 721, at para. 50, this is not an issue that requires either party to satisfy a burden of proof; rather, it is an issue for the sentencing judge concerning whether to exercise his or her discretion based on the whole of the evidence. If the sentencing judge is uncertain as to whether there is a reasonable possibility of eventual control of the risk, the sentencing judge should refuse to exercise the discretion not to declare the offender dangerous based on the long-term offender provisions.

[395] In R. v. G.L., 2007 ONCA 548, 87 O.R. (3d) 683 at para. 70; leave to appeal denied [2008] S.C.C.A. No. 39; the Court explained the balancing exercise between the state’s and the offender’s interests as follows:

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

[396] The term “reasonable possibility of eventual control” was interpreted by Barclay J. in R. v. L.C.W., 2000 SKQB 302, 195 Sask.R. 1, at para. 129 (Q.B.) as follows:

[T]he term reasonable possibility of eventual control in the community must refer to a set of circumstances where, during the term of the supervision order, the offender is likely to be rehabilitated such that when the supervision order expires, the accused is not a substantial risk to re-offend. It is my view that Parliament never intended in enacting these amendments that an offender could be designated a long-term offender because he can be controlled while under a supervision order notwithstanding that he would be a substantial risk after supervision is terminated.

[397] In R. v. E.E., [2003] O.J. No. 1518 at para. 41, “reasonable possibility” was described as “not a mere possibility, or any possibility, but one that is reasonable. Clearly, that means a possibility that has a reasonable possibility of success, in the mind of the Court.”

[398] In R. v. Walford, [2007] O.J. No. 744 at para. 82, Macdonald J. defined “reasonable possibility” in a similar manner:

In my opinion, unless the possibility of eventual control of the offender’s risk in the community reasonably has the potential to become actual control, there cannot be a reasonable possibility of the public being protected from that risk. Absent reasonable potential of eventual, actual control of the offender’s risk in the community, a possibility of eventual control would undershoot the objective of protecting the public from that risk. Consequently, while the Code requires a possibility and not a probability, a critical factor which makes a possibility of eventual control of the risk into a reasonable possibility is that modest potential of actually protecting people from the offender in their midst. That risk is, as mentioned, ‘a substantial risk that the offender will re-offend, pursuant to s. 753.1(1)(b).

[399] In accordance with these definitions, courts have consistently concluded that a reasonable plan is not one that is speculative or hypothetical. Much more than speculation, an expression of hope or a remote possibility is required to satisfy the court that the offender’s risk to re-offend could be managed in the community: R. v. Grayer, 2007 ONCA 13, 219 O.A.C. 114 at para. 67; and R. v. I.J.B., 2010 ONCA 387, [2010] O.J. No. 2209 at para. 14. See also R. v. Goforth, 2007 SKCA 144, 302 Sask.R. 265 at para. 54, where the Court held that a “reasonable possibility”, of necessity, must involve something more than hope or empty conjecture:

In and of itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of reoffending. In other words, a dangerous offender designation is not contingent on a finding that the offender has absolutely no prospect of successful treatment while incarcerated.

[400] Management plans that rely on a number of contingencies, including multiplicity of treatments working in concert, continued motivation on behalf of the offender, strict supervision of the offender, and sustained pharmacological intervention in the face of severe side effects have been rejected. See, for example, R. v. Walford, supra, at paras. 152-157.

Is there a reasonable possibility of eventual control of M.J.’s risk of re-offending in the community?

[401] Based on the whole of the evidence, I find that there is no reasonable possibility of eventual control of M.J.’s risk of re-offending in the community.

[402] In reaching this conclusion, I have taken into account that some of the programs proposed by Dr. Wilkie as part of the treatment plan are programs that M.J. may well be willing to take and from which he may benefit. These include cognitive skills and anger management programs, as well as vocational training. Dr. Wilkie also recommended that the utility of substance abuse programs should be further assessed. She testified that substance use is considered to be a significant disinhibiting factor and as such could increase M.J.’s risk of engaging in anti-social and sexually deviant behaviour.

[403] To M.J.’s credit, he took a substance abuse program at the Addiction Research Foundation in the early 1990’s. M.J. reported that despite a history of abusing drugs and alcohol as a teenager, and abuse of cocaine during his relationship with Ms. Carrere, he has not used any drugs since completing that program. Whether or not that is true, I note that there is no evidence that M.J. was under the influence of drugs or alcohol when he sexually assaulted M.M., or when he was arrested the following day. In any event, the fact that M.J. has voluntarily taken a substance abuse program in the past supports the proposition that he would be willing to do so again, whether in custody or as part of a long-term supervision order.

[404] M.J. also reported that he completed an anger and stress management program in 1996 at the Clarke Institute of Psychiatry but that he continued to have angry outbursts thereafter.

[405] In 2001, M.J. completed a cognitive skills program and was reported to have shown a moderate improvement in his ability to recognize, identify and solve problems. In 2002, he completed a nine-week anger management program. Again, he was reported to have shown improvement in some areas of the program. Of some concern is the fact that these were the only treatment programs that M.J. completed during his eight-year sentence. He did not participate in any follow-up or “booster” programs recommended to him.

[406] While in custody, M.J. upgraded his education, obtaining some Grade 9, 10 and 11 course credits. He completed a sheet metal course. In 2000, he completed a computer course.

[407] M.J. did not take any treatment programs after his release from custody in November 2005. However, in 2006 and 2007, he completed both an introductory and an advanced cooking course at the Liaison Culinary Arts Program and was accumulating credits for the work hours required for certification by preparing meals at a church. He was still engaged there as a volunteer when he sexually assaulted M.M.

[408] In summary, M.J., both before and during his eight-year sentence, engaged in some treatment programs in which he may have made some moderate progress. Following his release, he pursued vocational training. M.J. must be given credit for his efforts in this regard. However, such programs, although part and parcel of the proposed treatment plan, are not by any means the most critical components of the plan. The most critical part of the plan is that M.J. undergo extensive sex offender treatment programming, both while incarcerated and after any eventual release into the community. Dr. Wilkie also recommended that M.J. receive anti-androgen medication, which should be commenced several months before his release. According to Dr. Wilkie, whose opinion I accept, if M.J. were to refuse to take sex offender treatment or anti-androgen medication, his risk would clearly be unmanageable within the community.

[409] M.J. has testified that he is willing to take any programs offered to him, including sex offender treatment programs and anti-androgen medication. However, as Dr. Wilkie explained, the goal of treatment is not only participation in or attendance at treatment but also the internalization of the principles of treatment. M.J.’s denial and minimization is therefore a very serious concern in terms of his treatment prospects. He has continuously and steadfastly denied that he is a sex offender and failed to engage in sex offender treatment programs during his previous sentence. Given his past and current attitude, there is no reason to believe that if M.J. were offered another sex offender treatment program that he would behave any differently. There is, in my view, only the slightest chance that M.J. would engage in, benefit from or actually complete such a program. His denial that he is a sex offender means that any treatment for his pedohebephilia, sexual sadism and antisocial personality disorder, along with psychopathic personality traits, is extremely problematic.

[410] In R. v. Gibson, 2013 ONSC 589, [2013] O.J. No. 490 at paras. 41-48, Code J. reviewed the relevance of an offender’s denial of the predicate offence. Normally, an ongoing assertion of innocence has no impact on sentencing. It is simply an indication of the absence of remorse. Genuine remorse is a mitigating factor. It is normally an error to treat “denial” as an aggravating factor. However, failure to accept responsibility may be a factor where treatment is necessary to control future dangerousness: R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), footnoted at para. 40. Code J. also referred to R. v. B. (D.V.) (2010), 2010 ONCA 291, 100 O.R. (3d) 736 (Ont. C.A.), where the Court drew a direct factual link between treatability and “denial.” In B. (D.V.), the appellant’s denial of his wrongdoings and the fact that he downplayed his sexual interest in children were found to constitute “an aggravating risk factor” in terms of his treatability. Similarly, M.J.’s denial of the predicate offence and all other sexual offences on his criminal record, and his failure to acknowledge his pedohebephilia are aggravating risk factors with respect to his treatment prospects. He is not presently treatable because he does not see and never has seen any need for treatment.

[411] In November 1997, after pleading guilty to choking and four counts of sexual assault on young women, M.J. was asked by Ferguson J. if he had anything to say to the Court. M.J. replied, “I just want to get some counselling if that’s possible.” Ferguson J. accordingly recommended that M.J. receive comprehensive treatment with respect to his “aggressive sexual conduct.”

[412] From the commencement of the sentence imposed by Ferguson J., M.J. denied that he ever committed a sexual offence and has consistently blamed the victims for his “wrongful convictions.” M.J. maintained this attitude throughout the serving of his eight-year sentence and maintains it to this day – he repeated in his testimony before me that the victims are the sole ones to blame for his having been wrongfully convicted.

[413] M.J. stated during his intake assessment in 1998 that he did not view himself as having any sexual problems but that he would participate in treatment if asked. Again, M.J. has taken exactly the same position before this court, some 15 years later. Nothing in his attitude has changed. He denies that he has any sexual problems. He denies having committed the predicate offence and all the other sexual offences on his record. Notwithstanding these denials, M.J. asserts that he is prepared to participate in sex offender treatment programs.

[414] M.J. commenced the six-month sex offender treatment program at the RTC in November 2000. He continued to deny that he had committed any sexual offences. M.J. testified that he was kicked out of the program after only two weeks, but he was actually allowed to continue treatment for three-and-a-half months. There was obviously some effort made by those running the program to give M.J. ample opportunity to benefit from it. However, M.J. remained entrenched in his denials.

[415] In her Discharge Report, dated April 17, 2001, Dr. Dickie states that M.J. was discharged from the program because of his “substantial level of denial, which interfered with completing important aspects of the treatment program, such as empathy and offence cycle components.” His disclosures during group therapy sessions consisted mainly of his denials of having committed the offences. His written work suggested "no real effort.” His participation in the Cognitive Therapy module was minimal and he did not identify any thoughts, feelings or events related to his offending pattern. M.J. was “clearly not invested” in or amenable to the treatment program. Dr. Dickie concluded that M.J. was an untreated sexual offender and should be considered a high risk to re-offend sexually or violently upon release.

[416] M.J. tried to shift the blame for his failure to complete the sex offender treatment program to Dr. Dickie, alleging that she was not a fully-qualified psychologist but a student, implying that he had been denied professional help. He refused to sign his correctional plan because to do so would be an admission that he had committed the offences that he had pleaded guilty to. He thereby distanced himself from the document that Mr. Popovski described as the roadmap for an offender’s successful reintegration into the community and the most integral part of his rehabilitation. Given M.J.’s insistence that he is not guilty of the predicate offence, it would seem unlikely that he would be prepared to sign or engage in any future correctional plans designed to address the root causes for his offending behaviour.

[417] In a Security Level Referral Decision, dated April 20, 2001, it was noted that M.J. was in complete denial. He indicated a willingness to participate in all other programs, but his motivation was questioned as a result of his refusal to participate in the one program deemed essential to his successful reintegration into society, that is, the sex offender treatment program. M.J. asserted that he would remain incarcerated until his warrant expiry date rather than admit to anything. And, in the end, that is exactly what happened. On November 13, 2005, which was the last day of his eight-year sentence, M.J. was released into the community as an untreated sex offender. On September 12, 2007, he sexually assaulted M.M. while bound by a s. 810.2 recognizance.

[418] M.J.’s current level of denial that he is a sex offender and his history of failing to engage in sex offender treatment programs lead me to conclude that there is little chance that his response to treatment during a determinate sentence, followed by a long-term supervision order, would be any different than it was during his previous sentence. During the course of such a sentence, M.J. might well agree to take a sex offender treatment program. However, his failure to acknowledge his sexually offending behaviour or the underlying conditions that led to such behaviour are highly likely to prevent him from engaging in and benefitting from any such programs. At the expiration of a determinate sentence, M.J. would, in those circumstances, be released into the community, as he was in 2005, as an untreated sex offender, although subject to a long-term supervision order. There is little reason to believe that M.J., while subject to such an order, would be any more likely to engage in treatment than he would while in custody, in which case, he would still be an untreated sex offender at the end of his period of supervision and at a substantial risk of reoffending.

[419] Dr. Wilkie expressed concern that even before M.J. commences any intensive sex offender treatment program, his significant denial and minimization regarding his current and past offences and his motivation for treatment would have to be addressed. He would have to be willing to engage in a therapeutic relationship with the treatment providers. This initial phase would “likely take some time.” Dr. Gojer, in his discussions with Mr. Nikolic, also indicated that the initial goal when dealing with deniers is to get them beyond the denial stage. The question of whether or when M.J. could be moved beyond that stage is a matter of speculation or conjecture. I note that during his previous sentence, M.J. refused to accept responsibility for his offences, even when such acknowledgement would have led to his re-admission into the sex offender treatment program and could have possibly led to his early release. M.J. was so entrenched in his denial that he was prepared to serve every day of his eight-year sentence rather than admit to his sexual offending.

[420] Even if M.J. were prepared to participate in treatment in a meaningful way, Dr. Wilkie expressed serious doubts about its effectiveness. She noted that individuals who score 25 or more on the PCL-R (M.J.’s score was 28.2) show a less robust response to treatment and supervision, with a greater likelihood of their refusing or dropping out of treatment. In addition, individuals such as M.J., who have an antisocial personality disorder, are typically less amenable to treatment. There is little evidence that such individuals benefit from treatment in terms of reduced recidivism. Taking into account M.J.’s diagnosis of antisocial personality disorder and his high PCL-R score, Dr. Wilkie opined that M.J.’s prognosis with respect to potential response to treatment is extremely poor.

[421] Dr. Wilkie testified that in terms of treatment for pedohebephilia and sexual sadism, the most optimistic research suggests only a modest reduction in risk. These diagnoses, in combination with M.J.’s antisocial personality disorder and his psychopathic traits, further diminish the likelihood of successful treatment and a reduction of his risk for further offending. These factors, in combination with M.J.’s past refusal to accept responsibility for his offences, even in circumstances where such acknowledgement could ultimately have led to his early release, suggest a negative prognosis in terms of his willingness to engage in sex offender treatment programs.

[422] Taking into account Dr. Wilkie’s opinion and all of the evidence, there is nothing more than a remote possibility or hope that M.J. will benefit from treatment, which is an insufficient basis to conclude that there is a reasonable possibility of eventual control of M.J.’s risk of reoffending.

[423] The second critical part of the proposed treatment plan is that M.J. take anti-androgen medication. According to Dr. Wilkie, if M.J. refused to continue taking such medication, his risk in the community would clearly be unmanageable. M.J. has testified that he is willing to take anti-androgen or other sex-drive reducing medication. However, I do not see this medication resulting in a reasonable possibility of controlling M.J.’s risk in the community for the following reasons.

[424] First, I have serious doubts that M.J. would follow through on his professed intention to take this medication. His failure to engage in the sex offender treatment program and his denial that he is a sex offender raise real concerns as to his motivation and long-term commitment to taking an anti-androgen drug. Why would M.J. take medication for a problem that, in his view, does not exist, particularly when that medication has significant side effects? M.J. has asserted in the context of this dangerous offender application that he would take the medication but, in the circumstances, the sincerity of his assertion is highly suspect.

[425] According to Dr. Wilkie, the side effects are the main reason why most people stop taking these kinds of drugs. Since no tests have been conducted on M.J., it is not known how he would respond to them. However, common side effects include weight gain and the development of breast tissue, as well as headaches, dizziness and nausea. Long-term use can lead to osteoporosis. Common sense dictates that M.J.’s willingness to tolerate these side effects would be very low, given his position that he has no need for the medication in the first place.

[426] In addition, according to Dr. Wilkie, even if an anti-androgen drug diminished M.J.’s sexual arousal, he may still engage in problematic sexual behaviour. His sexual offences may not be driven solely by sexual drive.

[427] Finally, M.J. would have to consent to taking an anti-androgen drug as no doctor would administer it without his consent. He could revoke his consent at any time. I recognize that the Parole Board can order mandatory drug treatment as a condition of a long-term supervision order but, as the Court held in R. v. R.B., 2011 ONCA 328, 280 O.A.C. 329, such an order does not mean that the offender would or could be physically forced to take the medication. Rather, if the offender does not consent to take the medication under the terms of the order, that could then amount to a breach of the condition under s. 753.3(1) unless the offender “had a reasonable excuse for refusing to take the prescribed medication.” M.J.’s capacity to tolerate an anti-androgen drug – that is, whether he might have a reasonable excuse to refuse to take it – is not known at this time as he has not previously taken these drugs.

[428] In R. v. Ramgadoo, 2012 ONCA 921, 300 O.A.C. 149 at paras. 58-59, the Court recognized that a mandatory treatment order can serve the dual function of providing a significant measure of protection for the public while allowing the offender the opportunity to serve his sentence as a long-term offender rather than a dangerous offender. The enforcement feature under s. 753.3 serves as a backstop or assurance that the offender will continue his initial willingness to comply with treatment as required. If the offender is truly willing and able to change, and the sentencing judge is satisfied that he will comply with mandatory drug treatment once released, hopefully the deterrent effect of the penal consequences of any breach will be sufficient to prevent any lapse. However, the Court went on to state that “the enforcement feature will not have served its purpose if it is the first resort of an offender who refuses treatment soon after entering the community.”

[429] In the present case, for the reasons already stated, I am not satisfied that M.J. is truly willing to change or that he would comply with mandatory drug treatment if such treatment were ordered by the Parole Board as a condition of a long-term supervision order. It is more than likely that he would breach such a condition.

[430] A conviction under s. 753.3(1) carries a maximum penalty of 10 years. However, as noted by Aitken J. in R. v. Charbonneau, [2007] O.J. No. 3609, at para. 194, normally the sentences imposed are in the range of days or months. Otherwise, revocation of residency in the community or detention until the end of the long-term supervision order are not options, regardless of the perceived risk.

[431] If M.J. were placed on a long-term supervision order, the Parole Board would most likely impose a residency condition upon his release. The Keele Centre is one of three community correctional centres that accommodate high-risk offenders such as M.J.. It was described by Mr. Popovski as one of the best of its kind by virtue of the number and kinds of programs it offers. There is, of course, no guarantee that M.J. would be sent to the Keele Centre, which has only ten beds available for sex offenders. Nor is it clear as to how long he would reside there, given the “bed space crunch” described by Mr. Popovski.

[432] Mr. Popovski observed that the offenders at the Keele Centre who tend to succeed are those motivated to change and who engage in the treatment offered to them. Those who tend to fail are those who, like M.J., are not so motivated, who refuse to take programs or treatment and who do not take responsibility for their criminal behaviour. If M.J. continues to deny his criminal behaviour, as he did throughout his eight-year sentence and thereafter, he would not be able to participate in or benefit from the sex offender treatment programs or other programs such as COSA. In those circumstances, M.J.’s high risk of re-offending would remain the same and all controls on his behaviour would have to be external controls. A long-term supervision order could provide some external constraints, but it cannot, nor is it intended to be, identical to a custodial order. The Keele Centre offers a certain level of security, but it is not a jail. It is also situated in a densely populated area with many parks and schools. At some point, the long-term supervision order would come to an end and no external controls would be in place. As an untreated sex offender, M.J. would then clearly pose an unmanageable risk in the community.

[433] Aging or the “burnout theory” is not a significant factor in this case. As Dr. Wilkie explained, although there is a general decrease in violent offending among all individuals after the age of 40 to 45, this effect is limited or not as pronounced with respect to offenders like M.J., whose sexual offending is driven by paraphilias, such as pedohebephilia and sexual sadism. In these circumstances, the effects of aging will not result in a reasonable possibility of eventual control of M.J.’s risk in the community.

[434] Section 718.2(e) of the Code directs sentencing judges to undertake the sentencing of Aboriginal offenders individually, but also differently, because the circumstances of Aboriginal people are unique. In R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, the Court held that the sentencing judge must consider: (A) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (B) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

[435] The factors referred to under (A) in Gladue are not applicable in this case because M.J. was not affected by his alleged Aboriginal ancestry and had no connection to the Aboriginal community when he was growing up. As noted earlier in these reasons, Aboriginal Legal Services declined to prepare a Gladue report not only because M.J.’s Aboriginal ancestry could not be confirmed, but also because there was no indication that M.J. had been influenced by said ancestry, whether by systemic factors or historical reasons. M.J. was an adult before he learned that there might be an Aboriginal ancestor on his mother’s side. He had no specific information of an Aboriginal background on his father’s side, other than a belief that they are “Native from Kingston. I don’t know much about it.”

[436] The pre-sentence report was ordered with a view to considering the factors referred to under (B) in Gladue. Mr. Nikolic was asked to identify Aboriginal programs available to a person on a long-term supervision order who, like M.J., self-identifies as Aboriginal but cannot verify that ancestry. Mr. Nikolic has indicated that self-declaration as an Aboriginal is taken at face value in the institutions and some community organizations. M.J. would therefore be able to access Aboriginal services whether he is in or out of custody. Prior to his incarceration, M.J. used the services of several Aboriginal organizations. While in pre-trial custody, he has participated in the Native Spiritual Program through the John Howard Society.

[437] Mr. Nikolic identified a number of programs for Aboriginal offenders that are offered by the CSC, such as the Aboriginal family violence program. However, the sex offender treatment programs, which constitute the most critical part of M.J.’s treatment plan in terms of reducing his high risk of re-offending, are not culturally specific. There is no sex-offender treatment program specifically designed for Aboriginals or those who self-identify as Aboriginal. The same holds true with respect to programs offered at the community correctional centres, half-way houses, and at CAMH. Dr. Aberacan, Dr. Gojer, and Rob Peach all advised Mr. Nikolic that no distinction is drawn between native and non-native sex offender treatment programs. As a result, even if M.J. were to engage in Aboriginal programming, none of those programs would address or treat his pedohebephilia or sexual sadism. Without such treatment, there is a high risk that M.J. will reoffend.

[438] M.J.’s denial and minimization of his sexual offending constitute a serious impediment to his benefiting from any sex offender treatment program. According to Dr. Wilkie, even if M.J. were to engage in a sex offender treatment program in a meaningful way, his prognosis is extremely poor.

[439] Based on all of the evidence, there is only a hope that M.J. will take, engage in and benefit from sex offender treatment programs. There is only a hope that he will consent to taking anti-androgen medication. As stated in R. v. McCallum, 2005 8674 (ON CA), [2005] O.J. No. 1178 (C.A.), there must be more than an expression of hope as to the eventual management of the risk posed by the offender in the community. There must be evidence that this goal is reasonably possible to achieve. That evidence is not present in this case. There is an insufficient evidentiary basis to conclude that there is a reasonable possibility of eventual control of M.J.’s risk of re-offending. The sentencing options pursuant to the long-term offender provisions, including strict supervision and monitoring at a facility such as the Keele Centre, are not sufficient to reduce M.J.’s risk of re-offending to an acceptable level.

[440] For the reasons given, I am not satisfied that there is a reasonable possibility of eventually controlling in the community the risk presented by M.J..

DISPOSITION

[441] I find that M.J. is a dangerous offender and accordingly impose a sentence of detention in a penitentiary for an indeterminate period with respect to the sexual assault of M.M.

[442] As a dangerous offender, M.J. will be eligible for parole seven years from the time that he came into custody, with reviews every two years thereafter.

[443] The breach by M.J. of his s. 810.2 recognizance, contrary to s. 145(3) of the Code is not a “serious person injury offence” under s. 752(b). In my view, the appropriate sentence for this offence is 12 months, to be served concurrently.

OTHER ORDERS

[444] There will be a lifetime weapons prohibition order pursuant to s. 109 of the Criminal Code.

[445] There will also be an order that M.J. comply with the Sex Offender Information Registration Act for life.

GARTON J.

Released: October 31, 2013

CITATION: R v MJ, 2013 ONSC 6803

COURT FILE NO.: 0216/09

DATE: 20131031

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

M.J.

reasons for judgment on DANGEROUS OFFENDER application

GARTON J.

Released: October 31, 2013