COURT FILE NO.: 07-19962

DATE: 2013/03/27

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO Section 486.4 OF THE CRIMINAL CODE OF CANADA

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

K.O.

Dallas Mack for the Crown

Michael Smith for the offender

HEARD: November 14, 15, 16, 17, 18, 30 and December 1, 2011; January 25 and February 1, 2013.

deCISION RESPECTING an APPLICATION by THE ATTORNEY GENERAL FOR ONTARIO TO HAVE K.O. DECLARED A DANGEROUS OFFENDER

C. D. A. McKINNON, J.

Procedural Background

[1] The accused was convicted of kidnapping Victim 3 and, while committing a sexual assault upon her, threatened to use a knife on July 8, 2009. The reasons for that decision are recorded at [2009] O.J. No. 2930 and are appended hereto as Schedule “A”. Following the conviction of K.O., Mr. Mack informed the court that he intended to seek the consent of the Attorney General to have K.O. declared a dangerous offender. Anticipating that permission would be granted, on September 15, 2009, the court issued an order that K.O. be assessed by Dr. Phillip Klassen. Dr. Klassen’s 53 page report was filed with the court on January 17, 2010. On April 29, 2010, Chris Bentley, the Attorney General for the Province of Ontario, consented to proceedings being instituted to have K.O. declared a dangerous offender.

[2] Certain delays were occasioned to permit defence to retain an expert to assess K.O. Ultimately, Dr. Paul Federoff was retained and on October 25, 2010, Dr. Federoff filed a 45 page report with the court. Further delays were occasioned because of the unavailability of counsel and eventually the hearing took place in November and December of 2011. Following the sentencing hearing, the court was informed that K.O. wished to take anti-androgen medication and defence counsel sought an adjournment of the proceedings so that the medication could be prescribed and monitored.

[3] Approaching year end of 2012, Mr. Smith informed the court that Dr. Federoff was unavailable to reassess K.O. With K.O.’s permission, an Order was issued on October 10, 2012 that Dr. Phillip Klassen reassess K.O. Dr. Klassen’s seven page report was filed with the court on January 22, 2013.

[4] K.O. has been in custody since his arrest on August 6, 2007, one week following the rape of Victim 3.

K.O.’s History

[5] K.O. was born in Tanzania and is the eldest of five children. K.O.’s father came to Canada in 1988 and sponsored the immigration of his wife and family one year later. The family initially settled in Calgary before relocating to Ottawa in 1990. In 1998 the family moved to Vancouver, British Columbia then to Surrey, British Columbia, and then returned to Ottawa in 2003. The family has a long history with social service agencies in both British Columbia and Ontario.

[6] Between the summer of 1999 and December 2002, there were constant difficulties plaguing the O. family and K.O. in particular. He was expelled from grade 7 for assaulting classmates. He was permitted to attend another school and was expelled from that school in grade 8 for again assaulting classmates.

[7] On March 24, 2001, he broke into his school by throwing a can filled with rocks through a window and he stole some plasticine, paper and a large hourglass that belonged to his teacher. K.O. and his friend were observed by witnesses and upon his apprehension K.O. admitted guilt. He was charged and released on bail. He breached his bail condition that he not speak to his co-accused and was charged with breach of an undertaking. Aside from his breach of undertaking that he not speak to his co-accused, he also failed to report to his bail supervisor on two occasions.

[8] On June 24, 2002, he was convicted of break, enter and theft and breach of recognizance. His sentence was suspended. He was placed on six months probation and ordered to perform community service for ten hours.

[9] In early 2003, Mrs. O. sent K.O. to Africa to stay with his father’s brother. He was sent to a military school which he intensely disliked and insisted on coming home. He returned to Surrey after a few months and the problems between him and his mother, as well as those in school, resumed. Eventually K.O. was removed from the home. Having been expelled from two schools, the British Columbia social authorities sent K.O. to a program to teach him patience and respect for women. It appears he was returned to his mother’s home but continued to be verbally aggressive and getting into fights with his peers.

[10] K.O.’s his mother had reached her wits ends with K.O. She frequently telephoned her caseworker at various times complaining that K.O. was “very bad”, that she thought he needed a psychiatrist, that he had broken into his father’s car, that he had been physical with her, that he would not listen to her, that he had no respect for her, that he was out of school and had no intention of going back. He told his mother “I’m not afraid of women.”

[11] On another occasion she complained to the caseworker that she had gone shopping and left K.O. to care for his little brother. While she was gone, K.O. cut his little brother’s hair off. There were numerous scratches on the young boy’s head. K.O. told his little brother that if he continued to cry he would “cut his head off.” When Mrs. O. intervened, K.O. told her “You’re a fucking bitch, a slutty fucking bitch.” She complained that K.O. made her “not want to be alive” because she was so worried about his future.

[12] To afford his mother some respite, K.O. was placed in the home of Ms. R.H. by the British Columbia equivalent of the Ontario Children’s Aid Society. At the time K.O. was 14 years of age. While in Ms. S.H.’s home, a disturbing event occurred. After K.O. left her home, R.H. discovered a note. The note is purportedly written by her and gives K.O. “permission to have intercourse with me…I cannot at anytime or day in the futer (sic) press rape charges on him or use this to blackmail him in anyway (sic). The reason this has been written out is to assure K.O. that I would as he said have sex with me…” In questions posed to Dr. Federoff during the course of the hearing, Dr. Federoff agreed that this note was indicative of a rape fantasy.

[13] Later in the year 2002, all five children were removed from Mr. and Mrs. O’s family home. Mrs. O. was completely overwhelmed. Her husband was continuously returning to Africa, leaving her to care for their children alone. The children were eventually returned to the parents and in 2003 the family moved back to Ottawa.

[14] On November 22, 2003, K.O. stole some CDs, headphones and batteries from a Jean Coutu store. He was given a trespassing notice.

[15] On December 29, 2003, K.O. was suspected of stealing a cell phone from a fellow student’s bag in the school gym. His mother found the phone and confronted K.O. He said he had purchased it for $30.00 from someone in the Rideau Center. He was charged with theft but there is no available information as to the disposition of the charge.

[16] There are other uncharged incidents in K.O.’s past, including an incident on January 28, 1999, when police were called to York Street School in Ottawa. A student had been assaulted by K.O. The teacher told police that there had been no provocation and said that K.O. “terrorizes students daily.”

[17] During the year 2003, K.O. was expelled from the Norman Johnston Alternative School for chronic lateness and truancy.

The First Rape

[18] On September 25, 2004, K.O. was charged with sexually assaulting Victim 1. He denied the allegations and to this date continues to insist that the sexual relations were consensual.

[19] Victim 1 was a young single mother attending Carleton University who was attracted to a friend of K.O.’s. She invited this friend and K.O. to her home along with another woman. Alcoholic beverages were consumed. Victim 1 went to her bedroom to have consensual sex with K.O.’s friend. A few hours after she fell asleep she awoke to find K.O. having sexual intercourse with her.

[20] K.O. was found guilty by Justice Lajoie of the Ontario Court of Justice on April 4, 2006. In the course of his reasons for judgment, Justice Lajoie referred to K.O.’s assertation that he believed the complainant was consenting to sexual intercourse as being “not truthful, totally ludicrous” amounting to “a boasting and fabricated story.” K.O. was a youth at the time.

[21] In an updated victim impact statement dated November 9, 2011, Victim 1 states that she was once a confident young woman studying at Carleton University and working hard to make a future for herself and her son. She states that she no longer has any self-confidence. Her self-esteem is “non-existent.” Her relationships with people suffers because she no longer trusts anyone. She has lost friends. Her relationships with family members have suffered. She has been unsuccessful in forming relationships with any man. She is under doctor’s care. She wrote that when she heard from the detective that an updated impact statement was being requested, she got sick to her stomach.

…This telephone call brought back so many of the feelings that I’ve been working so hard to overcome. I’ve had sleepless nights, scared that he’ll send somebody after me. I break down in tears and cry uncontrollably. I have had to set up an emergency appointment with my doctor. I am so angry, frustrated and disappointed. I did everything I could... I wish never to see this man again. This man has taken away my life as I knew it. I hope you take these words into consideration when you are making your decision. After all this time I wanted you to see how one man, one night, has affected one woman’s life.

[22] K.O. was arrested on the charge of sexual assault on Victim 1 on October 5, 2004 and released on an undertaking. Conditions included that he abstain absolutely from alcohol.

[23] On November 13, 2004, approximately five weeks following his release, he was involved in a fight on Rideau Street in Ottawa. He was highly intoxicated. Upon his arrest the officer located a health card with K.O.’s picture on it. K.O. denied being the person in the picture. He was charged with breach of undertaking and held for a show cause hearing. Five days later he was released on another recognizance on conditions, including that he abstain from alcohol absolutely and be subject to a curfew.

[24] On June 25, 2005, he was involved in an assault in Gatineau, Quebec, as a result of which he was charged with one count of assault, two counts of assault with a weapon, and obstructing police by giving a false name. That incident involved a complainant and his girlfriend being in their vehicle and a number of people, including K.O., blocking their path. The complainant honked for the group to move and they did not. The complainant got out of his vehicle and he was struck in the head by K.O. His girlfriend’s handbag was stolen. Someone in the group, possibly K.O., was brandishing a knife. Following his arrest, K.O. was released the same day by Gatineau Police.

The Second Rape

[25] Three days later, on June 28, 2005, Victim 2 was sexually assaulted. The brutal and extremely sordid facts surrounding that night long rape are set out fully in my reasons for convicting K.O. on his sexual assault of Victim 3, as particularized in Schedule “A”. He was arrested on the date of the assault and held in the OCDC.

[26] While K.O. was in custody for the sexual assault on Victim 2, on November 4, 2005, he pleaded guilty of the breach of undertaking arising out of the assault on Rideau Street of November 13, 2004. He was sentenced to a 12 month conditional discharge. Conditions included that he reside with his parents, be subject to a curfew, and abstain absolutely from alcohol.

[27] This sentence was in fact of no consequence because K.O. was being held in jail for the sexual assault on Victim 2.

[28] While in custody, on March 26, 2006, K.O. got involved in a physical altercation with another inmate and also resisted the orders of correctional officers.

[29] On April 4, 2006, K.O. was convicted by Justice Lajoie for the sexual assault on Victim 1.

[30] On April 26, 2006, K.O. pleaded guilty to the sexual assault of Victim 2 before Justice Ratushny in the Superior Court.

[31] On September 7, 2006, K.O. was sentenced by Justice Lajoie with respect to the sexual assault on Victim 1. Justice Lajoie was mindful of the fact that K.O. was in custody facing a sentence for the sexual assault on Victim 2. He stated: “I must be mindful that an open custody sentence is frustrated from the word go because he will remain in custody…” In the end result he commented that K.O. was in obvious need of treatment programs to aid in his rehabilitation and sentenced him to a term of nine months custody. This was divided between six months secure custody followed by three months supervision, followed thereafter by a term of probation for 18 months on numerous conditions, including that he abstain absolutely from alcohol and non-prescription drugs and that he accept such assessment, counselling and therapy as directed by the authorities. He was prohibited from possessing weapons for three years. The disposition was entirely moot.

[32] Justice Lajoie had available to him a pre-sentence report prepared by Mr. Hal Grossner, a highly experienced probation officer serving the Ottawa courts. Mr. Grossner noted in his report that “K.O. now recognizes that he has a problem with alcohol and has started to attend AA meetings at the Regional Detention Center.” Mr. Grossner noted that “rehabilitative efforts will be of limited success unless K.O. is ready to acknowledge that he committed a sexual assault and address the issues in his life that led him to commit such a violent offence”. Mr. Grossner noted that K.O.’s educational advancement was highly compromised. He had completed only three of thirty credits required to obtain a secondary school diploma.

[33] With respect to the violent sexual assault involving Victim 2, Justice Ratushny requested a mental health assessment of K.O. which was conducted by Dr. Paul Federoff, the same psychiatrist retained by Mr. Smith to opine upon K.O.’s condition in the present application.

[34] In his report dated August 3, 2006, Dr. Federoff notes that in respect of the sexual assault on Victim 1, K.O. was maintaining his innocence and insisted that the sexual activity was consensual. With respect to the assault on Victim 2, K.O. claimed to be unable to recollect what happened due to excessive alcohol consumption. A series of psychological tests administered revealed that K.O.’s self reported sex drive was well above average. There were elevations on both impression management and self-deception. His self-reported responses indicated an absence of clinically significant problems in the areas of physical aggression, verbal aggression, anger or hostility. He did not have a problem with drug abuse. On another test, he endorsed a number of cognitive distortions often seen in men known to have committed sexual assaults against women. He also endorsed a number of cognitive distortions seen in known child molesters. However, on another test his responses indicated a sexual interest only in adult women.

[35] The phallometric testing indicated a response to adult females and one slide depicting an adult male however he did not react to audiotapes depicting a variety of criminal sexual scenarios which resulted in an absence in sexual arousal to coercive sexual scenarios. In response to stimuli depicting sexual interactions between adult men and a female child, he reacted and when asked to suppress his reaction, the reaction increased. In addition, his response to a description of a sadistic assault of a girl resulted in an increased response.

[36] Audiotapes describing sexual interactions between adult men and a male boy produced a homosexual pedophile response of zero, however when asked to suppress his response it increased, again because of primary arousal to a sadistic sexual scenario.

[37] Dr. Federoff summarized his conclusions that K.O.’s endorsement of a number of cognitive distortions seen in known child molesters and rapists suggested that he might well benefit in enrolment in a program such as the social skills and sex education program offered by the Royal Ottawa Hospital. His elevated score on the STATIC-99, a test designed to predict future sexual violent behaviour, suggested that he fell into a category of men with a medium to high likelihood of possible re-offence, particularly if left untreated. He could also benefit from treatment for alcohol abuse.

[38] Justice Ratushny was provided with an updated report prepared by Hal Grossner, the probation officer. Mr. Grossner again warned about K.O.’s alcohol abuse and recommended counselling, along with numerous other conditions. He noted that in his view K.O.’s attitude with respect to counselling had improved. He also noted that K.O. had undertaken a series of meetings with the prison psychologist, Dr. Shields, who provided a letter to K.O. stating:

You have asked me for a summary of the work we have done together over the last few months. Please accept this letter as my response…

I have found you to be an unusually motivated client. In our sessions together we have explored disturbing issues and I have challenged your ideas in ways you found threatening at times. Despite this, however, you are always eager for further therapeutic sessions whenever we would cross paths in the day room or corridor you would ask when we could meet again.

During earlier sessions you expressed some rather rigid notions about human sexuality that you attributed to your African cultural roots. Your belief was that only a man who in your words “can’t get girls” would be involved in a sexual offence. You, on the other hand, have been quite successful romantically, in fact you have been something of a “Don Juan”; thus you could not reconcile the evidence suggesting you have committed sexual offences with your lifestyle. You were quick to attribute this discrepancy to alcohol abuse and to dismiss the notion that there might be deeper, sexual issues to address.

In our sessions, however, we have explored the notion that power and dominance might hold erotic interest for you and that these urges may be disinhibited when you consume excessive amounts of alcohol, and you found this hypothesis threatening; the notion that power and dominance can be sexualized is repulsive to you and a threat to what you regard as your old world values. As our work together has progressed, however, you appear to be giving more credence to these ideas, as threatening as they may be.

As of next week you will be transferred to the adult section of our facility; thus our work together is coming to a close. As I understand it, there is a possibility that you may soon be released into the community with various restrictions and expectations. I believe that you would profit from further psychological services and counselling. Coming to terms with the fact that you may have a problem with issues of power and dominance is important, but learning to cope with the issues in a socially acceptable way is still more vital. This might be the goal of a future therapist, as might be dealing with the issue of alcohol abuse.

[39] Mention was made that K.O. had been working with Michelle Motiuk, a prison social worker, who reported that K.O. was “strong and resilient…he made productive use of his time in detention and was a positive element in the youth unit.” In her testimony, Ms. Motiuk stated that her interactions with K.O. were uniformly positive, although she did not at any time discuss the offences which caused him to be in custody.

[40] In her sentence of K.O. on March 12, 2007, Justice Ratushny noted that the risk assessment provided by Dr. Federoff was “an aggravating factor.” Justice Ratushny settled upon a sentence of three years for the sexual assault with a weapon upon Victim 2. Credit was given for 29 months in pre-trial custody which left seven months incarceration remaining, together with a one year conditional sentence, consecutive to the seven months sentence for the breach of his recognizance. The conditions of his conditional sentence included that he was to abstain absolutely from alcohol and non-prescribed drugs; participate in academic or vocational upgrading; write a letter of apology to Victim 2; write a 500 word essay on the effect of sexual assault of women; reside with his father at 2043 St-Laurent Boulevard; attend Alcoholics Anonymous; be placed on a curfew between 10:00 p.m. and 6:00 a.m.; and participate in the electronic supervision program whereby K.O. would have to wear an ankle bracelet and be subject to monitoring by appropriate authorities.

[41] Pregnant with good intentions, K.O. was released from prison on May 31, 2007.

[42] While on a conditional sentence and subject to a curfew, on July 4, 2007, K.O. was found not to be home, although no charge of breach was laid.

[43] On July 13, 2004, K.O. was caught stealing ice-cream from a theatre and was issued a trespass notice.

The Third Rape

[44] Exactly two months following his release, on July 31, 2007, Victim 3 was subjected to a brutal and prolonged rape documented in my reasons for conviction appended as Schedule “A”. K.O. had been drinking and was wearing his electronic monitoring device on his ankle during the course of the rape. Although his conditions of release required that he live with his father at the St-Laurent Boulevard apartment, the evidence at trial established that K.O.’s father did not reside at that address, thereby allowing K.O. to freely engage in criminality.

[45] Following conviction of K.O., Victim 3 filed a victim impact statement. Portions of her statement read as follows:

I was a 21 year old growing woman that was happy-go-lucky, living life to the fullest and just minding my own business. Someone that took care of the people around her, friends and family, someone who made sure she would do anything and everything for anyone. Someone that didn’t do harm whatsoever to the people around her, obeyed the law, obeyed the rules and as some people say, the goodie-goodie one…My life changed forever on July 31, 2007 at 10:44 p.m…I was kidnapped, sexually assaulted for four hours. I was raped. At that moment I wasn’t the same woman. This has affected and changed everything in my life forever. My life, my relationship with my boyfriend, family, friends, the ways of thinking and of course my ways in life in general…There have been things that I have done with this one individual that I haven’t even experienced with my true love on our own time…We had just lost our virginity to each other a year prior and we were just getting used to each other and our bodies…Intercourse is and never will be the same ever…I have now become uncomfortable in any area. I am always watching over my shoulder, carrying keys in my hands and making sure I lock my doors in my car prior to doing anything else. This isn’t like me, this has changed so many things. It is so tough. I am woman that is outgoing, adventurous and this has affected it all. I can feel it change me, but I certainly try not to let it out, it is definitely stronger than me…This hasn’t only affected me, this has affected my boyfriend with many issues. We have gone through a lot of chats and conversation to make sure we get through this and get through this together. He is more protective of me…This was unprotected intercourse. I had to take a Plan B pill to make sure that I was not pregnant. I had to take a bunch of pills for sexually transmitted infections. I had to take HIV pills for three months to prevent this disease. I had an allergic reaction to one of the HIV pills that was horrible and I had to switch pills to take another one. These pills were HUGE. I feel for anyone that has had to take these pills because it affects your whole entire body system and affects your mind, your eating capabilities, your bowel system, it affects everything…I have been eating my sorrows away which has caused me to gain around 30 pounds since 2007. This has made me uncomfortable in my skin, this has made me unattractive to myself, this has made me hate my body. I used to be slim, but at this moment I feel that I cannot lose weight, I feel that I eat my sorrow, my emotions away, a horrible thing to do as it isn’t good for my health. I just deeply think that I cannot change my body until this is all over…

[46] Victim 3 goes on to ask the court to ensure that she not have to face K.O. in the street ever again. I have observed during the course of these proceedings that Victim 3 and her boyfriend have attended court on every occasion. I have also noted the weight gain on the part of Victim 3. I have noticed the obvious affection between Victim 3 and her boyfriend. One can only hope that time will heal the deep wounds that K.O. has inflicted on Victim 3.

[47] On August 6, 2007, K.O. attended at the Ottawa Civic Hospital in an intoxicated state. He had caused a disturbance by knocking over newspaper boxes on Rideau Street in Ottawa. He had vomited due to excessive ingestion of alcohol. When he presented himself at the hospital, he was also unlawfully at large from his residence, beyond his curfew time. When arrested by the police he once again falsely identified himself. He was arrested for breach of his probation orders, failing to comply with the conditions in those orders and obstructing a peace officer. He has remained in custody since the date of his arrest.

[48] On June 17, 2008, K.O. pleaded guilty to the charges arising from the Gatineau assault with a knife that had occurred on June 25, 2005. On the assault he was sentenced to two months in prison. On the assault while threatening to use a weapon, he was sentenced to two months concurrent and given one year probation for obstructing a peace officer. Again, this sentence was moot, as K.O. was languishing in jail awaiting trial for the rape of Victim 3.

[49] While in custody, on February 10, 2008, K.O. was placed in segregation for assaulting another inmate.

[50] On January 10, 2009 he was again segregated for engaging in a fight in the bathroom at the detention center.

[51] On January 15, 2009 he was segregated for a total of 11 days due to smashing a phone and engaging in the fight on January 10.

[52] On February 15, 2009, he again assaulted another inmate.

[53] On May 25, 2009, K.O. pleaded guilty before Justice Fraser of the Ontario Court for obstruction of a peace officer in the execution of his duty, breach of the order of Justice Lajoie that he abstain from alcohol, and breach of the order of Justice Ratushny that he abstain from the consumption of alcohol. Sentence on those pleas has been adjourned pending the disposition of the dangerous offender hearing before this court.

[54] On July 9, 2009, the court convicted K.O. for the sexual assault of Victim 3.

[55] On August 25, 2009, K.O. was assessed 30 days segregation for causing a disturbance in the OCDC and had to be forcefully placed under control.

[56] On March 4, 2011, he was assessed 30 days segregation for assaulting an inmate. During this incident, K.O. was seen “high-fiving” with other inmates. The inmate whom K.O. assaulted suffered from two black eyes and a cut lip.

[57] On March 29, 2011, K.O. was cited for misconduct for refusing to comply with the direction of a correctional officer. He was placed in segregation, but there is no record of the time assessed.

[58] On May 15, 2011, other inmates complained that K.O. and two other inmates were “muscling and threatening” other inmates. He was counselled and warned.

The Expert Evidence

Dr. Ian Shields

[59] Dr. Ian Shields is a psychologist who works at the OCDC. For 24 years he worked exclusively with young offenders aged 16 and 17. At time of trial Dr. Shields was working with adult offenders. Dr. Shields has a Bachelor’s degree from Carleton University, a Master’s Degree from University of Ottawa and a Doctorate in Clinical Psychology from Queen’s University. Dr. Shields undertook two internships at the doctoral level, one at Kingston Penitentiary with sexual offenders and one in Kingston Psychiatric Hospital where he also did research in the area of hypnosis and its ability to enhance memory. Upon graduation, he worked at the Brockville Psychiatric Hospital for two and a half years and then transferred to the OCDC in 1986. As part of his doctoral studies he undertook individual and group counselling with convicted sex offenders at Kingston Penitentiary. He has also worked with convicted young sex offenders in the OCDC.

[60] Dr. Shields testified that the opportunity to have meaningful interactions with young offenders was restricted by the fact that OCDC is a remand center. Once an individual is convicted and sentenced, the individual is sent to another institution. Another restriction was that because individuals are facing charges, Dr. Shields would not discuss details of the charges with offenders pending trial, as a result of which most of the work he did was crisis intervention. Dr. Shields testified that he enjoyed challenging young offenders with their criminal sentiments, beliefs, and cognitions that might put them at a high risk for reoffending.

[61] Dr. Shields testified that on the adult section of the OCDC, where he has been working for two years, the waiting list is “staggering. I probably have 100 people waiting to see me and the inmates who are suicidal go right to the front of the line…Yesterday we had five on suicide watch. I couldn’t get to all five of them in one day.”

[62] Contrasted to the adult section, while working in the youth unit there was a full time social worker, Michelle Motiuk, who could help in the managing of young offenders. There are 500-600 adults at the OCDC whereas there were only 26 young offenders. With two full time clinicians, namely Dr. Shields and Michelle Motiuk, they were able to meet with every young offender. Dr. Shields and Michelle Motiuk would split the workload in half on a random basis. Initially, K.O. saw Michelle Motiuk. In July of 2005, Ms. Motiuk passed him on to Dr. Shields. It was in late 2006 that Dr. Shields first had meaningful interaction with K.O.

[63] K.O. wanted to see Dr. Shields because he was quite knowledgeable about rap music and wanted to suggest some anti-racist rap music that might be appropriate to quell racial friction in the OCDC. Dr. Shields was favourably impressed with that initiative.

[64] Based on the documents prepared by K.O. Dr. Shields, concluded that K.O. was in the average range to reoffend. K.O. stated that he had no family problems, but he did have peer problems, drug/alcohol problems and a criminal history. K.O. reported to Dr. Shields that he lived in good circumstances and came from a loving family. He identified that he had to stop using alcohol, that he must attend school, that he must change the people he hung around with, change his attitude and stop his criminal thinking.

[65] The file also included the report completed by Dr. Federoff for Justice Ratushny which identified self-deception as being elevated in the case of K.O. Dr. Shields impression of K.O. was that compared to the average young offender, he was not particularly self‑deceiving or lying, based on norms developed by Dr. Shields himself. Dr. Shields testified that on the Paulhus Deception Scale, which measures self-deception, he scored K.O. at 66/100, which did not raise concerns. Dr. Shields has developed his analysis based on comparison to other prison inmates, rather than general population.

[66] Dr. Shields did acknowledge that Dr. Federoff’s testing found elevations on both impression management and self-deception.

[67] In answer to the questions as to the reasons why he committed crimes, K.O. answered: “first, to help out a friend or friends; second, to get revenge; and third, for excitement, thrills and a rush.”

[68] Dr. Shields testified that he told K.O. that he wished to discuss his sexuality and K.O. was willing to do that. Dr. Shields noted:

He doesn’t really want to work on the issues. Feels he doesn’t have a problem, some drinking. The ROH reports that there are issues. I’ll work with him if he keeps an open mind. Will explore his sexuality together. If he’ll participate. We spoke of it in the preliminary way, he was quite honest, claimed that he wondered if he “did it”, but tries to think of other matters, uneasy to see what might be behind that door.

[69] At their next meeting on January 3, 2007, K.O. asked Dr. Shields to write a letter to his lawyer, which he did, and gave a copy to probation officer Hal Grossner. The letter reads as follows:

During your lengthy stay with us at OCDC, our social worker Michelle Motiuk has been providing you with ongoing clinical services but purposely avoided speaking to you about your sexual offences while they were before the courts. Now that you have been convicted and sentenced on the youth sexual charges, she has asked me to explore those issues with you. The psychiatric report prepared about you at the Royal Ottawa Hospital and your probation officer Hal Grossner both concur that this type of intervention is appropriate and you have agreed to participate. To date I’ve been meeting with you once or twice a week. You have an understandable hesitancy in embarking on a course of self-discovery in these matters for fear of what you might discover. To date you have been quite open and cooperative. I think we have established a strong therapeutic alliance as long as you are incarcerated on our youth services unit. I look forward to providing you with weekly services.

[70] Dr. Shields testified that K.O. believed that sexual aggression was reserved for romantically unsuccessful or sexually unsuccessful men or men who are “losers.” K.O. was socially skilled. He was one of the “cool kids” and was romantically successful, therefore he could not reconcile how, having the reputation of being a Don Juan or a Casanova, he would commit sexual offences; “it made no sense to him.” He claimed that he was very drunk at the time of the offences and did not remember them. He saw himself as a person who had a problem with alcohol.

[71] Dr. Shields suggested to K.O. during their sessions that he was in fact sexually deviant, that he eroticized about having power, control and domination over women and that he did not know how to satisfy those needs in a socially acceptable way. “This was a new idea for K.O. and quite threatening to him.” K.O. stated that he had old world values and that power and domination was alien to his way of thinking. “So in our sessions I would confront him with uncomfortable ideas and he would tell me he is feeling awkward about this and uneasy about this but to his credit he was always asking to come back and see me.”

[72] On February 16, 2007, Dr. Shields met with K.O. and there was a “clash of ideas.” K.O. stated that he was disturbed by the notion that power, dominance and humiliation were erotically interesting to him, that he made Victim 2 call him “Daddy,” and the fact that he beat her. He admitted that he was “now recalling parts of what happened” and conceded that “it was all true” but suggesting that the only men who would do such things were pathetic men who “can’t get laid.” Once again he blamed it on alcohol. Dr. Shields nonetheless felt that K.O. was accepting the challenge being put to him, namely that deep down he eroticized humiliation and degradation of women. Dr. Shields testified that it was not uncommon that people recover their memories or, alternatively, as the therapeutic alliance matures, topics that were once taboo are no longer.

[73] Dr. Shields’s hope was that K.O. would continue to seek psychological counselling because they only worked together for a few months.

He needed to explore and understand this notion and accept the notion that this is more than just, “well he’s had too much to drink every now and then,” and accept the notion that there is some sexual deviance issues and then explore socially acceptable ways of satisfying those urges.

[74] Dr. Shields hoped that K.O. might attend at the Sexual Behaviours Clinic of the Royal Ottawa Hospital and perhaps undertake individual counselling.

[75] On March 12, 2007, Justice Ratushny sentenced K.O. for the sexual assault of Victim 2 and he was transferred from the young offender unit to the adult side of the ODCD, which ended K.O.’s interaction with Dr. Shields. On being transferred to the adult unit, K.O. was seen by Dr. McFarland, whose notes indicate that K.O. denied any inappropriate arousal from sexual aggression and attributed his problems to alcohol consumption.

[76] Dr. Shields’s ultimate conclusion was that K.O. is a sexual deviant.

[77] In response to questions by Mr. Smith, Dr. Shields testified that in his meetings with K.O., he did not express criminal sentiments, he was always very appropriate, and felt uncomfortable and awkward when challenged by Dr. Shields. Notwithstanding being challenged, Dr. Shields testified that K.O. always wanted to come back and was eager to come back to see me. The fact that K.O. was beginning to recollect some of the events in relation to the sexual assault of Victim 2 gave Dr. Shields hope that progress was being made. “Now whether or not he was genuinely recollecting this or he was just feeling comfortable enough to start talking about it, either way, I would think that was progress.”

[78] Dr. Shields felt that there was definitely a potential for change in K.O. He was sociable and was very sought after by other young offenders as a cellmate. He was bright and witty and well-liked. The potential for change required further psychological services and facing up to his sexual deviancy.

[79] Fundamental to the assessment of Dr. Shields testimony is that he has not interacted with K.O since March, 2007, prior to K.O.’s brutal rape of Victim 3.

Dr. Philip Klassen

[80] Dr. Philip Klassen was appointed by the court to assess K.O.’s dangerousness. Dr. Klassen is well known to the courts of Ontario. At the time he testified at this hearing, he had conducted about 120-130 dangerous offender assessments and testified in over 100 hearings.

[81] Dr. Klassen graduated in Medicine from the University of Manitoba after which he moved to Ontario. He was an Assistant Professor in the Departments of both Psychiatry and Medicine at the University of Toronto for six years ending in 2009. He was the head of the Sexual Behaviours Clinic Treatment Program at the Center for Addiction and Mental Health (“CAMH”), in Toronto for seven years, ending in 2011. He was the attending psychiatrist in the Sexual Behaviours Clinic at the Clarke Institute of Psychiatry located in Toronto. He is a member of the Inquiries and Complaints Committee of the Royal College of Physicians and Surgeons of Ontario and a member of the Ontario Review Board, among many other postings. He has served on many committees and has published widely in the field of forensic psychiatry, in particular relating to sex offenders. He is currently the Vice-President of Medical Affairs at the Ontario Shore Center for Medical Health Sciences, a psychiatric facility in Toronto.

[82] Dr. Klassen understood that at the time of his assessment, he was testing K.O. in accordance with the legislation as it existed at the time of the offence, namely 2007, prior to the 2008 amendments to the dangerous offender regime.

[83] Mention has been made of the phallometric testing conducted by Dr. Federoff at the Royal Ottawa Hospital in 2006, which was conducted at the request of Justice Ratushny. Dr. Klassen found the tests to be “inconclusive and somewhat confusing” and requested that K.O. be transported to CAMH in Toronto for further phallometric testing.

[84] K.O. consented to Dr. Klassen speaking to a number of people that knew him but would not permit Dr. Klassen to speak to any of his male friends. Dr. Klassen spoke to K.O.’s father, K.O.’s former girlfriend, two other female friends and a female relative. K.O. told Dr. Klassen that his male friends were involved in anti-social activities, although he himself was not involved in any gang related activities.

[85] Following his investigation, including the testing and interviewing of K.O., Dr. Klassen concluded that K.O. suffered from a personality disorder, “plus or minus” an attention deficit hyperactivity disorder, an alcohol abuse disorder and a sexual behaviour disorder which he diagnosed as sexual sadism.

[86] Dr. Klassen observed that many individuals who suffer from hyperactivity, attention deficits and impulsivity might lose interest in school and gravitate toward unsavoury activity. There is an increased risk for substance abuse and juvenile criminality. K.O.’s measured IQ is 97. He did not have much success at school and there were serious issues with truancy, lack of interest and novelty seeking in matters outside of school. Nor has he succeeded at work. K.O. has held a number of minimum wage jobs since his youth. Dr. Klassen noted that K.O.’s aspirations were largely unrealistic. K.O. has also had relationship difficulties. His intimate relationship with his girlfriend was severed because of the lifestyle choices K.O. has made. This was due to the fact that he was at clubs or parties, repeatedly incarcerated and engaged in serial infidelity.

[87] Although from time to time during his confinement, K.O. complained of depression, he told Dr. Klassen that he felt happy. Dr. Klassen noted that K.O. had a very positive self-image that contributed to his expansive and non-realistic aspirations. Dr. Klassen believed that the anxiety and depression was situational by virtue of being in custody. Dr. Klassen noted that generally speaking, self-satisfaction is not strongly associated with a good treatment outcome. If people feel very positively about themselves, the likelihood of investing a lot of time and effort in self change is, on average, lower.

[88] He also found that K.O. possessed some histrionic and possibly narcissistic traits. Personal disorders of the sort possessed by K.O. has been shown empirically to be related to risk of recidivist violent and/or sexual behaviour.

[89] The underlying diagnosis that caused Dr. Klassen concern was K.O.’s personality disorder, his alcohol dependence, both of which disinhibit or reduce the “firewall” against offending behaviour. “The fact that K.O. committed two very serious sexual assaults while on court ordered conditions in the community is consistent with a reward orientation that is stronger than a risk orientation…That is to say, we know that in persons that offend repeatedly the reward of pursuing something desirable looms larger in their mind typically than the consequences that may result, that excitement tends to be more powerful than anxiety, and K.O. has said he is excitement oriented and I think there is little evidence of anxiety in his presentation.”

[90] One of the difficulties Dr. Klassen noted is that K.O. denied any guilt with respect of the sexual assaults on Victim 1 and Victim 3. More shall be said about his denial of guilt in respect of Victim 3 later in these reasons. With respect to the incident involving Victim 2, Dr. Klassen characterized K.O.’s account “not as a denial but as a minimization, which is to say he has acknowledged that the events might have taken place, but reports no recollection of those events.”

[91] Notwithstanding K.O.’s statement that he could not remember anything respecting the sexual assault on Victim 2, Dr. Klassen noted that there was a sequence of commands given to Victim 2 consistent with an underlying fantasy. The fact that he could recall that he “did not spit on the vagina” of Victim 2 raised questions as to how he could not recall other facts about the offence but could recall and deny that he spat on her vagina. Dr. Klassen did not accept the degree of amnesia reported by K.O.

[92] Dr. Klassen noted that K.O.’s alcohol abuse disorder was material in the sense that all three of his serious sexual offences were undertaken in the context of having imbibed alcohol, a disinhibiting substance. Dr. Klassen noted that alcohol intoxication is statistically related to violent sexual offending and that there was a relationship between K.O.’s alcohol intoxication and his offending behaviour. Dr. Klassen noted that alcohol consumption was also at the root of other crimes committed by K.O.

[93] Dr. Klassen testified about his diagnosis that K.O. is a sexual sadist. Sexual sadism “subsumes the notion of enjoyment of having sexual relations that are not consented to but also entails a preference for the infliction of fear, pain and humiliation on the victim. It is the complete control of the individual that may be particularly erotically interesting to a sexual sadist. At its apogee, I suppose it involves murder or necrophilia.” Dr. Klassen stated:

One of the challenges, quite frankly, in predicting recidivism in sadists is that there aren’t large numbers of sadists out there in most of the sex offender samples. So in this case, I feel like this gentlemen shows a number of features that have led me to conclude that I believe he suffers from sexual sadism: A) The majority of individuals who become adult sex offenders commit their first sexual offence as teens; that is to say the onset of the sexual problem in some form is seen in one’s teens…B) It is common in persons with sexual sadism to see relatively less well differentiated sadistic behaviour earlier on in the course of their offending and increasingly more differentiated sexual behaviour later, meaning it becomes more specific or more scripted, seems more to reflect the underlying sexual script, and C) Typically, the severity of the offending behaviour also goes up. I would invite you to think of some well known sexual sadists in Canadian history that began with lesser offending behaviour and ultimately we saw more severe offending behaviour.

[94] Dr. Klassen spoke of the sexual assault of Victim 1. He stated that “all that you can really draw from the offending was that Victim 1 was not consenting… there may have been some interest there in non-consent. Then with Victim 2, I think we can assume that there is more of an interest in non-consent and there is the infliction of pain and fear and humiliation. And then I think with Victim 3 all of those things go to another level, although there are still similarities in terms of what happened with Victim 2 as what happened with Victim 3.” In his report, Dr. Klassen stated that “[t]he control, and likely inculcation of fear, degradation and pain seen with Victim 3 certainly present as sadistic.”

[95] Dr. Klassen testified that phallometric testing is not a standardized practice. Different laboratories use different stimuli “so that a person diagnosed with a certain condition in lab A would not get the same diagnosis in lab B.”

[96] In Dr. Klassen’s Toronto laboratory at CAMH some of the audiotape narratives involving non-consenting sexual behaviour were quite brutal and sadistic. K.O. generated a significantly greater arousal to the category called rape suffering. “There was significantly greater arousal – and significant arousal overall, I might point out, there was good blood flow in this test, there was significantly greater arousal to the rape suffering category than to the other categories.” The level of brutality in the audiotapes employed by Dr. Klassen include “bones breaking” and it was this category that generated the highest sexual arousal from K.O.

[97] Dr. Klassen noted that K.O. is not a highly psychopathic individual, nor a highly anti-social individual, nor a highly angry individual, which points towards an underlying sexual behaviour problem, namely that he is, at root, a sexual sadist. His crimes are the result of dysfunction in his personality and not the result of a response to external factors or other personality problems.

[98] When asked to comment on Dr. Federoff’s report, which found that K.O. produced a rape index of zero, Dr. Klassen testified that the approach of the Royal Ottawa is different from that of his laboratory. The Royal Ottawa lists various levels of arousal for different categories of tests. “It is not clear to me that there is a pathway that takes them to accept or reject the particular diagnosis or if there is, it’s not transparent to me.” Dr. Klassen testified that given that suppression is always a risk on the part of the individual being tested, “you have to have a really brutal test to separate coercives from non-coercives and the weaker tests don’t do as well. So for better or for worst, we chose to put in place at the lab at CAMH a very brutal test…It involves audiotapes that involve severely physically violent and unambiguously non-consenting sexual situations. It’s not date-rape…some of the narratives would be akin to what would be considered aggravated sexual assault…serious physical assault to the point where, you know, a person is struck in the face to the point where bones break.”

[99] Dr. Klassen noted that in Dr. Federoff’s phallometric testing of K.O. in 2006, K.O. did not respond significantly to any of the tapes describing rape, nor did he respond significantly to a consensual sexual scenario. Dr. Klassen testified that he does not believe that the testing was helpful. “If there is no response to rape, and no response to consenting sex, I don’t see how that excludes an interest in rape. To me that means that this test has not captured interest.”

[100] Dr. Klassen reiterated that in terms of his own testing at CAMH of K.O., the testing “was robust and unambiguous in terms of its conclusions.”

[101] Dr. Klassen was questioned about K.O.’s risk and treatability. On the PCL-R (psychopathy checklist revised) Dr. Klassen scored K.O. 23/40, while Dr. Federoff scored K.O. as 24/40. On the SORAG (sex offender risk appraisal guide) Dr. Klassen scored K.O. at 32/40 and Dr. Federoff scored him at 33/40. On the STATIC-99 Revised, both Dr. Klassen and Dr. Federoff scored K.O. at 8/10. In effect, both Dr. Klassen and Dr. Federoff awarded similar scores to K.O. on all three tests.

[102] On the PCL-R a score of 23 places K.O. in approximately the 52nd percentile with respect to a reference sample of North American male offenders. While this score suggests some problems, it does not indicate an antisocial or psychopathic personality that would explain the offending behaviours.

[103] According to Dr. Klassen, the two better tools for assessing sex offender recidivism are the SORAG and the STATIC-99R. With a score of 32 on the SORAG, K.O. is in the 98th percentile. Similar scoring individuals recidivated violently, or sexually, at rates of 100 percent over 10 years. A score of 8 on the STATIC-99R is a very high score and places K.O. between the 98-99.5 percentiles. With respect to a reference sample of sex offenders, similar scoring individuals recidivated sexually at rates of 31 to 48.5 percent over 10 years and recidicated violently at rates of 55 to 63 percent over 10 years in the community. “Taken together, the SORAG and the STATIC-99R indicate that K.O. is at very high risk of sexual and/or violent recidivism.” He testified that the convergence of the two instruments adds additional confidence that K.O. is at high risk “as if you had two witnesses that were independent of one another and offered very similar testimony.”

[104] Dr. Klassen made reference to Dr. Federoff’s scoring on the STATIC-99R. Dr. Federoff stated “[p]eople with this STATIC score are five times more likely than the average sex offender to engage in new sexual offence.” Dr. Klassen found that a “useful way of describing the risk.” Dr. Klassen was careful to point out that courts should not be wedded to these probability estimates because they are “fluid” in the sense that recidivism has been declining since the 1970s “through the efforts of many stakeholders around the issue of sexual offending”.

[105] Nonetheless, Dr. Klassen testified that the convergence of the two instruments, namely the SORAG result and the STATIC-99R result “lends additional credence, or confidence perhaps, is a better word, to the notion that he is at high risk. He is at a very high risk of sexual and or violent recidivism.”

[106] Dr. Klassen spoke of the effect of aging upon risk and the fact that violent offending declines when men are in their 40s. There is a curve to risk which builds in the late teens and escalates through the 20s and 30s then begins to decline as individuals reach their 40s. He testified that a person who is sexually sadistic will return to offending and “typically the offending will increase in severity and continue until apprehension.” In other words, should K.O. return to reoffending, “it is likely there will be multiple offences of increasing severity until apprehended.”

[107] Dr. Klassen opined that K.O. met the threshold for a finding that he was a dangerous offender.

[108] In addressing the issue of risk management, Dr. Klassen testified that such management entails proactively, and in a planned and deliberate fashion, “changing anything you can about a person that you believe is related to risk.” The dynamic variables in K.O.’s case are sexual sadism; alcohol intoxication; personality disorder and lifestyle instability/peer associations. Dr. Klassen believed that K.O. required intensive sex offender treatment programs. “Given the severity of his offending behaviour, and his positive phallometric test results, I would submit that this gentleman should receive pharmacological sex/drive reduction at such time as he may, in the future, re-enter the community. He should also be offered educational upgrading and/or vocational training” because in Dr. Klassen’s opinion, K.O.’s vocational goals were unrealistic and contributed to lifestyle instability. “Also and unfortunately, given K.O.’s relative disavowal of offending behaviour, namely denying non-consenting sexual relations with Victim 1 and Victim 3 and being unable to provide a meaningful explanation for his sex offending behaviour with Victim 2, the ability to appreciate or understand the factors that contributed to K.O.’s sex offending behaviour are limited.”

[109] Dr. Klassen believed that K.O. would benefit from treatment for ADHD. “Treatment is available for a novelty/sensation-seeking character style.” K.O. also had to associate with a more pro-social peer group.

[110] K.O. should abstain absolutely from the use of alcohol. “I did not find this gentleman’s wish to discontinue alcohol use particularly compelling in the interview setting: he may require some motivational interviewing in this regard.”

[111] Dr. Klassen repeated that K.O.’s self image is quite positive and thus he did not get a clear sense that from K.O. that he is driven to change his lifestyle and/or behaviour. “He acknowledges that he has struggled somewhat with conditions… I note that this gentleman has repeatedly breached conditions of probation, and or judicial interim release, indeed was subject to electronic monitoring and a conditional sentence order on the most recent release. Despite this, he returned to his prior lifestyle.”

[112] Dr. Klassen testified that there should be no consideration to releasing K.O. unless he was subjected to chemical castration “because we don’t understand what drove the last three offences. This man parties all the time. This man drank regularly and on three of those occasions there were increasingly serious sexual offences. So I think, you know, the only way you can, if you have to treat somebody in the community, the only way you could reasonably approach this would be through pharmacological sex drive reduction, because at least at this time, because it’s the only way you can treat somebody, in the absence of information from that person that would help you manage risk.”

[113] Pharmacological intervention affects the production of testosterone. “It works on the part of the brain that signals testicles to produce testosterone and it drives testosterone levels down quite low. Testosterone is responsible for sexual fantasy and sexual arousal in men and women. When testosterone goes very low, sexual fantasy and sexual arousal decline with it.” Dr. Klassen testified that when he canvassed the notion of K.O. taking the drug Lupron, he did not wish to take it.

[114] According to Dr. Klassen, another obstacle to K.O.’s release is the fact that he maintains his current position that he has no underlying sexual behaviour problem and that he has only engaged in non-consensual behaviour on one intoxicated episode. Also, given K.O.’s peer associations and history of very quickly returning to a criminal lifestyle when released, it did not bode well for the future. K.O. has a personality that is capable of convincing therapists that he is on the right track, but his conduct demonstrates otherwise. He has the capacity to fool therapists to believe that he is motivated.

[115] Dr. Klassen’s ultimate conclusion is that while K.O. may in the future respond to treatment and become a candidate for conditional release into the community, it was not clear to Dr. Klassen that there was evidence for such an evolution beyond “mere hope”. He stated:

It is not my opinion that I can at this juncture offer behavioural science support for a reasonable possibility of eventual control of risk in the community. Based on this gentleman’s presentation and his life trajectory thus far, it is my opinion that the community is likely better protected through conditional release by the National Parole Board as an indeterminately sentenced dangerous offender, assuming that he engages in the corrective measures required, than hoping that a federal sentence and a long term supervision order will afford the community protection.

[116] Dr. Klassen was directed to the fact that since his report he had been provided with the notes of Dr. Shields and Michelle Motiuk together with Dr. Federoff’s report. He testified that the only potential difference, the only thing he would place any potential weight on, was K.O.’s comment to Dr. Federoff that he would be willing to consider sex drive reducing medication. Moreover, with respect to Dr. Shields’ and Michelle Motiuk’s notes, they were unaware that K.O. had tested positively for sexual sadism through phallometric testing and that in the year 2007 that he had committed the sexual assault on Victim 3, “so their reports of his engagement in treatment to me are more of a chimera.”

[117] Dr. Klassen was asked about Dr. Federoff’s opinion that K.O. would benefit from affiliation with an outpatient support network such as the program sponsored by Correctional Services Canada called Circles of Support and Accountability (“COSA”). In his opinion, interventions such as COSA represent more than a “faint hope” since there is evidence that COSA can reduce re-offence rates of medium to high risk federal offenders by 70 percent or more.

[118] Dr. Klassen testified “I think that is a viable piece, potentially, to add to the puzzle” but warned that if he were in a community correctional facility he would be associating with persons with criminal records and that, although his father and mother were supportive of him, they had no history of being in any way able to control his behaviour. The female friends that K.O. allowed Dr. Klassen to interview struck Dr. Klassen as being reasonable, thoughtful and pro-social individuals, although they had a hard time accepting that he was involved in the crimes for which he has been convicted. Dr. Klassen was concerned that K.O. was “self-deceptive and engaged in impression management.” Add to that his unrealistic goals in life, such as creating a charity, when in fact he lacked the education, connections and funding to attain such a goal, again did not bode well for the future.

[119] Dr. Klassen was asked about a response to a question put to K.O. by Dr. Shields as to how he would stop drinking. K.O. told Dr. Shields that “he would stop going to parties or clubs.” Dr. Klassen testified that refraining from alcohol when all of one’s friends are involved in a sub-culture that goes to parties and clubs is a much more complicated process then saying “I’m not going to go to parties or clubs… If you have identified that your self-esteem is very connected to your place amongst your friends, if you have identified that your friends live an exciting and thrilling lifestyle and that a big part of it is going to clubs, and you know that alcohol is at those clubs, it is simply self-deceptive to say my solution for the alcohol issue is simply I’m not going to go to parties and clubs.”

[120] In the course of questioning by Mr. Smith, Dr. Klassen confirmed that his interaction with K.O. over the two meetings that were held, K.O. was “pleasant, responsive and polite, no issues of any kind.”

[121] Referring to the letter written by Dr. Shields to K.O., and K.O.’s professed desire to see more of Dr. Shields, Dr. Klassen testified that K.O. was not rejecting the notion of meeting with someone who is addressing psychological and sexological issues with him. “We know that they did not proceed terribly far down that road, but it makes sense to give K.O. credit for that engagement.” Dr. Klassen agreed that although K.O. denied sexually assaulting either Victim 1 or Victim 3, with respect to his admitted assault on Victim 2, he expressed regret to Dr. Shields “for putting someone through so much unnecessary bullshit.” Dr. Klassen testified:

I agree I would give K.O. credit for his acknowledgment of the harm in the case of Victim 2. It wasn’t significant enough – his concerns about Victim 2 to get him to seek out sex offender treatment or open up more, or you know, address his issues more significantly, but it is positive that he expresses remorse about the Victim 2 incident, sure… I think the real question is, you know, when you counterbalance that with three sexual assaults in a short time frame and no engagement in community based treatment or really addressing the sexual issues, I’m not sure how I can go beyond giving him credit. It’s good that he recognizes those things but it hasn’t actually translated into behavioural change.

[122] Dr. Klassen reiterated that, given K.O.’s highly positive self-image and denial of two of the sexual assaults, therapy would be difficult for K.O. Dr. Klassen saw certain positive elements, namely that K.O. is bright, verbally skilled, has the capacity to participate in psychotherapy or counselling and is able to relate to treatment personnel, including himself, Dr. Shields and Ms. Motiuk, but added:

Where there isn’t really a foundational element is addressing the dark side so to speak, the three offences and the sexual behaviour disorder, I would say there isn’t really a foundational element for that yet.

[123] Dr. Klassen agreed that were K.O. willing to take medication that would induce chemical castration, such a change would make “a significant difference” to risk management.

[124] When further cross-examined on future risk, Dr. Klassen has this to say:

K.O. is on the 98^th or 99^th percentile in terms of risk for sex offenders, which is not low risk. He is high risk. He is now 24 years of age so he is just now sort of in the fat part of the age crime process and his offences, at least the last one, are very serious…The way I feel about it is he is an excellent candidate, in my opinion, for preventive detention. He is very high risk, 98^th or 99^th percentile, serious sexual assaults, and, if you will, in the prime of his life in terms of the age at which he is at greatest risk for reoffending…

[125] Dr. Klassen was directed to Dr. Federoff’s written report in which he stated:

The STATIC-99 was revised to the STATIC-99R due to the fact that sex re-offence rates have dropped significantly since the first instrument was devised. K.O. has not had the benefit of the following treatment interventions:

(a) modern sex offender individual and group therapy;

(b) pharmacological treatment, including anti-androgen treatment; and

(c) affiliation with an out-patient support network such as the CSC program circle support and accountability.

[126] Dr. Klassen testified that he understood Dr. Federoff’s opinion to be that there was more than simply “faint hope” that K.O. could be reasonably managed in the community and stated:

I think he is more optimistic than I am. I think I have suggested in my report that at this point it’s not clear that there is more than mere hope or faint hope. Secondly, do I think that K.O. would continue to pose a risk even if he got treatment, all of these treatments? With respect to a) modern sex offender therapy, we have to see how he did. This is a real wild card in somebody that does not even acknowledge most of his offending and the underlying disorder…I think (a) is a wild card.

[127] With respect to item (b) anti-androgen treatment, Dr. Klassen agreed that it would make “a material deference.”

[128] As to item (c), the intervention of COSA, Dr. Klassen stated:

I am a fan of COSA, by which I mean I think they do great work. People that self-select for COSA do well. I would be very pleased to see K.O. associated with COSA. That would not be the cornerstone of an intervention at this juncture. I think that if this gentleman were to be released, the one thing that I would place the most confidence in would be pharmacological sex reduction – sex drive reduction at this point.

[129] Dr. Klassen added:

My concern at this point, given his lifestyle and given the risks that he is willing to take, between engaging in this sexual behaviour and given we don’t know very much about what begins the process leading to his sex offending, if I put myself in the shoes of people at community correctional facilities at this point..I would not feel confident that this gentleman could be managed in the community given the severity of the offending. I still feel that from a purely psychiatric perspective, the best option for K.O. is an indeterminate sentence with the opportunity for him to do all the right things during this highest risk period in his 20’s and then, you know, I think you could feel much more comfortable about him moving to a community correctional facility post-treatment and on medication…I know that there are always some anxieties about saying that about somebody who has not had federal treatment, but if you are asking me in terms of management of this gentleman, that’s how I feel. My worry of course is the National Parole Board will be very anxious about releasing K.O. I think though that if K.O. did well in treatment and took pharmacological sex drive reduction, people would have to take notice of that, particularly the latter.

[130] Dr. Klassen testified that COSA was begun by a Mennonite pastor in southern Ontario who had the belief that one could take dangerous and high risk people and “envelope” them within the community and strongly guide them to a better life. The basic principle of COSA is very intensive involvement. The support group sees the offender every day, supporting them with work, education, life skills, activities of daily living, recreation and leisure, and companionship. It is not a high volume model; it is intensive and has now spread to other parts of Canada and the United States. He testified that people self-select for involvement in COSA and the numbers are relatively small “because of the degree of investment that is required.”

[131] Dr. Klassen spoke of an individual that he himself had been involved with in a dangerous offender hearing who had been released from federal prison, was taking anti-androgen therapy, was involved with COSA but “sort of drifted away and then seriously reoffended,” which led Dr. Klassen to state “[y]ou’ve got to stick with it.” The person was high risk, was doing well on medication and with COSA but the warrant expiry date intervened and within the next year or two the individual seriously reoffended.

[132] By this comment I understood Dr. Klassen to be suggesting to the court that controls must be maintained throughout the lifespan of the individual’s dangerous years.

[133] In further questioning by Mr. Mack, Dr. Klassen was directed to certain phallometric testing conducted by Dr. Federoff in 2006 which was suggestive of homosexual and pedophile preferences. He also responded to specific female-child scenarios that were child mutual and sadistic. In another set of thirty slides depicting sadism presented in 2010, K.O. responded significantly to two slides, one depicting consenting scenario with the male in the masochist position and the other depicting humiliation of an adult female.

[134] Given the variety of responses, Dr. Klassen testified that “I struggle to know exactly what to make sense of, they’re a little bit all over the map. Maybe Dr. Federoff can shed some light on that.” With respect to the confusing results Dr. Klassen testified:

I can tell you as somebody that was involved in this area of work for many years, that if you see patterns of responses that don’t hang well together and/or see responses to categories that do not fit with the person’s stated preference, it would raise some concerns in my mind as to whether there were some efforts at manipulation of the test outcomes. At our lab, I would go back and look at the tracings, the actual computer generated tracings of the blood flow…and although I acknowledge this is the art rather than the science of phallometric testing, that it may lead you to believe that this person is trying to modify their arousal in the test session…The other possibility is that you will sometimes get unusual responses when people have a very powerful activity preference. There are object preferences and activity preferences. Object is man, woman, boy, girl etc. Activity is masochism, sadism, urination, what have you. If people have a very strong activity preference, they may show weaker responses to objects; male, female, boy, girl, and their testing can wind up looking a bit funny because the activity is primary and the activity isn’t contained in the slides…That could possibly help explain why on the audiotape narratives there’s so little arousal to either the consenting or the rape scenes. If this gentleman has a particularly unique sadistic activity preference it could result in low arousal for both consenting and rape to the extent that a particular activity is required. If it is not captured on the test you can get low and sometimes wonky looking arousal.

[135] Dr. Klassen did not dispute Dr. Federoff’s comments that there was evidence that involvement in COSA can reduce re-offence rates from medium to high risk federal offenders by 70 percent or more, although he reiterated that those who are accepted by COSA are those who seek out COSA. Federal inmates are not randomly referred to COSA.

Dr. Paul Federoff

[136] Dr. Paul Federoff is a graduate of the University of Saskatchewan, graduating from a combined enrolment in the College of Medicine and of Arts and Sciences. He graduated from the University of Saskatchewan Medical School in 1983, did his internship in Saskatoon, and was a resident in Psychiatry in the John Hopkins Medical Institutions in the United States. In 1987 he became the Honorary Registrar in Psychiatry at the University of London, England, returning once again to the John Hopkins Medical Institutions in 1988. Between 1988 and 1990 he was the senior clinical fellow in Neuropsychiatry in the Department of Psychiatry and Behavioural Sciences at the John Hopkins Medical Institutions. In 1990, he was a clinic fellow in Forensic Psychiatry at the Clarke Institute of Psychiatry of the University of Toronto. He has lectured, taught and written extensively. He is a member of the Royal College of Physicians and Surgeons of Canada Examination Board, a member of the Ontario Review Board, Director of the Sexual Behaviours Clinic of the Royal Ottawa Hospital and has held that position for about seven years. He is the Chair of the American Academy of Psychiatry and the Law committee on Sex Offenders and has spoken on the topic of sex offenders throughout the world.

[137] Dr. Federoff performs about two or three sexual behaviour assessments per week and follows about two hundred sex offenders at any given time. As in the case of Dr. Klassen, Dr. Federoff is well known to the courts of Ontario as an acknowledged expert in assessing the dangerousness of sex offenders.

[138] Dr. Federoff assessed K.O. in 2006, after his plea of guilty to the sexual assault of Victim 2 before Justice Ratushny and again in 2010 for the present proceedings involving Victim 3.

[139] When Dr. Federoff asked K.O. to offer his version of the facts surrounding the index offence, namely the rape of Victim 3, he repeated to Dr. Federoff the highly textured story that the court rejected as being utterly false. K.O. maintained his innocence.

[140] On the Bumby Cognition Scale, a test designed to identify sexual offenders, K.O. endorsed a number of cognitive distortions often seen in men known to have committed sexual assault against women. When asked to detail which statements he agreed with, Dr, Federoff testified that the first one was that: “women often falsely accuse men of rape.” Another was that: “before police investigate a woman’s claim of rape, it is a good idea to learn what she was wearing, whether she had been drinking and what kind of person she is.” Another is that: “generally rape is not planned. It just happens.” K.O. strongly agreed with the statement: “if a person tells himself that he will never rape again he probably won’t.” He agreed with the statement that: “a lot of woman say no to sex because they don’t want to seem loose.” He also agreed with the statement that: “if a woman wants to go home with a man on a first date, she probably wants to have sex with him.” He agreed with the statement that: “most men who rape have stronger sexual urges than other men.” Dr. Federoff concluded by saying:

You’ll see that none of them by themselves means anything but when we see people who agree with a lot of these statements, particularly strongly agree, statistically it makes them more similar to categories of men who we know have committed rapes.

[141] With respect to the phallometric testing, Dr. Federoff testified that in the lab of the Royal Ottawa Hospital Sexual Behaviours Unit, any response that is less than 1.5 millimetres of change is not rated. K.O. was shown videos, still slides, and audiotapes. In the audiotape testing conducted in 2006, K.O. produced a rape assault index of zero. The audiotapes included a tape of a man and a woman having consensual sex and another audiotape in which the woman was not consenting to the sexual activity and the man physically beat her. K.O.’s responses to both tapes were not beyond 1.5. When presented with stimuli depicting sexual actions between an adult man and a female child, K.O. responded more to descriptions to a man with a child then he did to the description of a man with a woman. This resulted in an elevated sexual pedophile index. The specific female child scenarios that he responded to were “child neutral” and “sadism.” Dr. Federoff concluded that these tests results should be viewed with caution because there is no allegation that K.O. had ever been sexually inappropriate with children.

[142] I pause to note that K.O.’s response to the scenario involving sadism is, in my view, highly relevant to the present application.

[143] In response to audiotapes describing the sexual interaction between adult men and a male boy, K.O. produced a homosexual pedophile index of zero and a homosexual assault index of zero; however, under the suppressed condition, his homosexual assault index increased to 1.61, again because of primary arousal to a sadistic sexual scenario. Dr. Federoff explained that during that section of the test, K.O. was specifically asked to suppress his arousal and he actually showed more arousal during a section of the audiotape in which a man was torturing a boy where K.O. scored 1.74. It may be noted that this was the result of the 2006 testing.

[144] As referred to previously, in 2010, when presented with a series of 30 slides depicting sadism, he responded significantly to two slides, one depicting a consenting scenario with the male in the masochist position, and the other depicting humiliation of an adult female.

[145] While some phallometric testing was repeated in 2010, the self-reporting questionnaires were not. The questionnaires revealed significant concerns respecting alcohol abuse.

[146] Dr. Federoff was in agreement with Dr. Klassen’s scoring on the STATIC-99R, which placed K.O. into the high risk category for re-offending violently. This was significant because in 2006, Dr. Federoff had scored him at medium to high risk. In 2010 Dr. Federoff scored him at a high risk. He was found to be in the 97.8to 99.1 percentile, meaning that 97.8 to 99.1 percent of sex offenders scored at or below K.O.’s score. On the SORAG, Dr. Federoff scored K.O. higher than did Dr. Klassen, placing K.O. in the highest risk category on the SORAG recidivism scale. Dr. Federoff testified:

…From my perspective, Dr. Klassen and I are in complete agreement about virtually everything with perhaps one exception, which is whether we know for sure that K.O. is untreatable. And as I write in my report, my opinion is that I can’t say he’s untreatable until he has failed treatment for sure. I have recommended treatment in the past which he did not avail himself of, so that’s the bad side. But when I saw him in 2010, he initially said he would not accept treatment and then changed his mind and said that he would. To me that’s a significant change. Whether he is just saying it or not, I don’t know. But if it’s true that he now accepts that he needs treatment there are treatments which I list in the report which have been effective in people, not everyone, but they have been effective and in my opinion K.O. should receive those treatments in order to determine whether or not he is untreatable.

[147] Dr. Federoff stated that treatment access has increased over the years and better medication is available. In addition, there is the availability of COSA. People in COSA groups have a significantly lower recidivism rate than ones who do not. “The more interventions you have the more likely it is you will be successful.” Dr. Federoff testified that the treatments mentioned do not require people to admit their past offences, rather the treatment focuses on what they are doing now and what they will do in the future. “Whether or not he admits guilt is not a barrier, what is a barrier is whether he is willing to come in and work on therapy. If he is willing to do that, then I think therapy is possible.”

[148] Dr. Federoff’s diagnosis of K.O. is that he suffered from alcohol abuse, which was currently in remission, a provisional diagnosis of sexual sadism and a provisional diagnosis of Attention Deficit Disorder. He has a mixed personality disorder which includes narcissism. He agreed that K.O. met the criteria of being found a dangerous offender but believed that with individual and group therapy, chemical castration, and COSA, there was more than simply “faint hope,” and that he might be amenable to treatment in the community.

[149] Attached to Dr. Federoff’s report is a letter to him from K.O. telling Dr. Federoff that he had changed his position with respect to taking medication, and stating “if you go with an LTO recommendation and I am released, I would like to come and see you on a regular basis. I want to stress to you that I am not guilty and I am not a dangerous offender…”

[150] In cross-examination of Dr. Federoff, Mr. Mack referred him to the social service files available from British Columbia and Ontario and the fact that he was perpetually in trouble at the schools he attended and guilty of assaultive behaviour. Dr. Federoff agreed he had reviewed those files and was one reason why he came to the conclusion that K.O. was diagnosed as having an anti-social personality disorder.

[151] Mr. Mack referred Dr. Federoff to files from the year 1999 wherein K.O. seemed anxious to address his problems with fighting and conflict and was vowing to improve his conduct. He was also referred to K.O.’s score in the Paulhus Deception Scale which indicated that K.O. suffered from both self-deception and impression management. Mr. Mack suggested to Dr. Federoff that at any given time when K.O. is purporting to be recognizing a problem, the issue must be whether he is truly recognizing it or not, because of his ability to impression manage which would make it impossible to know whether he was being truthful or not. Dr. Federoff agreed with that suggestion. Dr. Federoff stated:

In terms of personality problems, Dr. Klassen and I agree that K.O. has problems with anti-social personality disorder which is willingness to engage in activities that may be harmful to another person, as well as narcissistic personality disorder and people with that problem are people who are fundamentally very insecure and they constantly need to convince themselves that they are good people…When they do things that are wrong…they are very prone to come up with explanations that make them look like they are doing something good or that it was someone else’s fault that they did that.

[152] With respect to the diagnosis of sexual sadism made by Dr. Klassen, Dr. Federoff testified that his diagnosis was “provisional” because there are two major parts to sexual sadism, one being engaging in cruel sexual acts, the other being sexual fantasies involving those acts “and although we know that he has engaged in sadistic activities, he repeatedly says that he is not sexually aroused by those types of activities, so that’s why I say it provisional.” Dr. Federoff agreed with the suggestion that K.O. might be deceiving himself.

[153] Respecting to the 2002 break-in at the school in British Columbia, Dr. Federoff referred to the pre-sentence report prepared in that case in which K.O. eventually blamed his co-accused for the break-in and stated that he himself only took some sand from the hourglass out of curiosity. This contradicts the witnesses to the incident. Dr. Federoff agreed that this was a case of K.O. engaging in impression management with the probation officer.

[154] Mr. Mack reviewed the letter that K.O. had written involving Ms. R.H. in 2002, wherein Ms. R.H. purports to give K.O. permission to have intercourse with her and agrees not to charge him with rape. Dr. Federoff agreed that the letter constituted “rape fantasy.” Mr. Mack then pressed Dr. Federoff suggesting that if in fact K.O. was having rape fantasies at age 14, that to deny that he had rape fantasies in the 2006 and 2010 testing administered by Dr. Federoff that he was in fact being untruthful. Dr. Federoff agreed with that proposition of being “quite likely.” He also agreed with the fact that if a 14 year old boy has fantasized about a rape it is likely that he would continue to have fantasies about it when he is 19 or 20 years of age.

[155] Dr. Federoff agreed that the continuous breach of conditions by K.O. was consistent with an antisocial personality disorder. He agreed that the fights in schools and the fights with his mother were also consistent with an antisocial personality disorder. Dr. Federoff agreed that the incidents of thefts were consistent with the diagnosis of antisocial personality disorder. Dr. Federoff agreed that the violence that occurred in Gatineau, Quebec, where K.O. assaulted the driver of the car that he and his friends were blocking and a knife was used to threaten the individuals, constituted a different kind of violence than the sort K.O. had engaged in historically, namely, violence towards a stranger rather than a schoolmate or a family member. Dr. Federoff agreed that this constituted an elevation of the level of violence engaged in by K.O.

[156] Three days following the Gatineau assault, K.O. engaged in the brutal and lengthy sexual assault of Victim 2 at a University of Ottawa residence, in breach of his bail conditions that he not drink alcohol and also while he was on release for the sexual assault for Victim 1. Dr. Federoff agreed that these incidents are “troubling” in the sense that conditions in the community were simply insufficient to manage K.O.

[157] Mr. Mack asked Dr. Federoff about the sexual assault on Victim 1 which K.O. claimed to be entirely consensual but Justice Lajoie found to be non-consensual, describing K.O.’s evidence as being “boastful,” “fabricated” and “totally ludicrous.” Mr. Mack asked Dr. Federoff if, assuming Justice Lajoie was correct in his finding, whether K.O. was again impression managing, to which Dr. Federoff replied:

Well, looking at everything that I know about him, he does seem to think he is a great guy and that all women want to have sex with him if they could. And he also says that the only person that would rape somebody is someone who couldn’t convince women to have sex with them, so it doesn’t surprise me at all when a women says “I didn’t consent” that he says “Well that’s not possible” because he sees himself as highly attractive…At least partially there is some self-deception, yes.

[158] The subsequent history of the sexual assault of Victims 2 and 3 was further confirmation of Dr. Federoff’s diagnosis that K.O. suffered from an antisocial personality disorder as well as the assaultive incidents while in custody. Dr. Federoff agreed that the history should cause the court concern in terms of determining his manageability in the community.

[159] Dr. Federoff went on to state “the sexual sadism, that’s not something that I contest.” Mr. Mack asked Dr. Federoff why he concluded that the diagnosis was “provisional,” to which Dr. Federoff testified that the only reason was because K.O. denied being aroused by sadistic sexual behaviour “but clearly he might not be telling the truth.”

[160] Mr. Mack directed Dr. Federoff to the testing preformed in 2006 on K.O. including the Buss Perry Aggression Questionnaire. The conclusion arrived at by Dr. Federoff was that:

K.O.’s scores on this test did not indicate any clinically significant self-reported problems in the area of physical or verbal aggression, anger or hostility. These results indicate that from K.O.’s point of view his problems, if any, are not associated with aggression.

[161] Dr. Federoff agreed that K.O.’s actual history of aggressive behaviour going back to a young age contradicted the self-reporting and that the aggression continued to elevate throughout the years. Dr. Federoff agreed that K.O.’s self-reporting with respect to aggression could amount to impression management and self-deception, more likely impression management.

[162] Dr. Federoff explained to Mr. Mack that he did not undertake retesting of K.O. on all the tests that were administered in 2006 because he knew that he had committed another rape, “so I can’t imagine how a change on this (i.e. the tests) would make a difference in my opinion.” He did agree that had K.O. been retested, the results might have changed from 2006. Dr. Federoff was in complete agreement with Mr. Mack that with, respect to self-reporting questionnaires, it is quite possible people lie.

[163] With respect to the Paulhus Deception Test Scale, Dr. Federoff explained that Dr. Shields found no significant problem with K.O. because he was comparing K.O. with other inmates whereas Dr. Federoff did find a problem because he was comparing K.O. to the general population.

[164] Dr. Federoff also agreed that the person who commits crime as a result of personal distress as compared to personal dysfunction is more amenable to treatment. He agreed that K.O. did not suffer from personal distress but rather from personal dysfunction.

[165] In relation to phallometric testing, Dr. Federoff explained that one of the reasons that K.O.’s profile had not changed since 2006 was because the stimuli had not changed since 2006. He had also been submitted to testing by Dr. Klassen in 2009 to which Dr. Federoff stated “…[i]f it’s the third time he is doing this, it’s not entirely surprising to me that he is not showing arousal.” Notwithstanding the tests, Dr. Federoff pointed out that he would not rely simply on phallometric testing to make a diagnosis and that he in fact concluded that K.O. would benefit from anti-androgen medication. Implicit in that recommendation was that K.O. was at high risk to commit rape.

[166] Dr. Federoff testified that a positive phallometric result is much more significant than a negative phallometric result and agreed with the suggestion that the positive results obtained by Dr. Klassen must be looked at in determining the risk posed by K.O. In his own testing of K.O., Dr. Federoff found that he reacted positively to a sadistic assault of a male on a girl. K.O. did not respond to stimuli involving the torture of young boys, but did explain that there were no stimuli involving the torture of women used at the Royal Ottawa Hospital.

[167] In the 2010 testing conducted at the Royal Ottawa Hospital, K.O. did respond significantly to two slides, one depicting a consenting scenario with a male in a masochistic position and the other depicting humiliation of an adult female. Dr. Federoff agreed that K.O. was responding significantly to sadistic sex. In the 2010 testing, Dr. Federoff pointed out that once again K.O. did not respond to the audiotape but he did respond to the slides depicting sexual sadism. Dr. Federoff stated:

…We know that he has committed rapes, so in the lab I’ve seen that CAMH found that he was responding to sadistic materials, I don’t dispute that. In our lab he didn’t show arousal to the rape audiotapes, but he did to other sadistic materials. And as I’ve said, I think he does have sadism, although he hasn’t told me he is sexually aroused by sadistic scenarios.

[168] Dr. Federoff and Dr. Klassen have both agreed, based on the responses from the PCL-R, the STATIC-99R and the SORAG testing, that K.O. is in the highest risk group to re-offend in a violently sexual manner. In Dr. Federoff’s opinion, he is “five times more likely to recidivate then the average sex offender.”

[169] Moving to the issue of risk management, Dr. Federoff reasserted his opinion that he was unable to conclude that K.O. was untreatable because he had not been given treatment and failed. He testified that when he first assessed K.O., he informed him that because K.O. was not willing to take anti-androgen medication, he would recommend that he be designated a dangerous offender.

[170] K.O. then reconsidered his position and told Dr. Federoff that he was prepared to take Lupron. Dr. Federoff explained to K.O. the benefits and risks of the drug Lupron, the benefit being that the medication would reduce his testosterone and therefore his sex-drive, the risks being that he would be subject to hot flashes, weight gain, the possibility of diabetes, but the main effect being bone demineralization or osteoporosis. Dr. Federoff’s initial draft report sent to Mr. Smith, K.O.’s counsel, opined that K.O. should be classified as a dangerous offender and jailed indeterminately. His draft report echoed the opinion of Dr. Klassen.

[171] Necessary to K.O.’s management plan would be that he undertake sex-offender individual and group therapy; pharmacological treatment (anti-androgen therapy) and affiliation with patient support networks such as COSA. Dr. Federoff believes they are all important and with respect to the anti-androgen therapy, it is a necessity in K.O.’s case. As to being accepted into COSA, all appeals available to the convicted person must be exhausted before an offender will be accepted into the program. COSA has been expanding and there are now more people who wish to access COSA then are able to be taken by them. Higher risk individuals are given priority. Success in the program requires a genuine desire on the part of the offender to change behavioural patterns.

[172] Dr. Federoff was referred to his assessment of K.O. in 2006 in which he reported to Justice Ratushny: “[h]e impressed me during the assessment as a young man who recognizes that his pattern of behaviour needs to change.” Within two months he committed the brutal sexual assault of Victim 3 and was found one week following at the Ottawa Hospital after being on Rideau Street, drunk and kicking over mailboxes. He was asked by Mr. Mack “Whatever desire he had to change, either it didn’t exist or he wasn’t actually following through on it, agreed?” Dr. Federoff testified “I absolutely agree.”

[173] When addressing the risk of recidivism as predicted in K.O.’s case through the STATIC-99 R and the SORAG, Dr. Federoff testified that the greatest rates in recidivism occur within the first two years of return to the community. Looking at a large group of people, those who have not reoffended at five years are more likely not to be in the group that do not re-offend at 10 years or at 15 years. Dr. Federoff also agreed that once anti-androgen therapy ceases, an offender’s sex-drive will quite quickly return to the previous dangerous level.

[174] Dr. Federoff confirmed that K.O. has repeatedly stated that he was wrongfully convicted of the sexual assault of Victim 3, that he intends to appeal the decision and testified “I suspect he thinks that any admission of guilt of remorse or willingness to accept treatment may somehow undermine his appeal. This is very common for men to think that.”

Dr. Philip Klassen’s Reassessment

[175] With the assistance of Helen Ward, the attending physician for the OCDC, K.O. commenced taking Lupron in January of 2012. For various reasons, the case was adjourned and because of the delays occasioned, it was agreed by all that a fresh assessment of K.O. should be undertaken. Mr. Smith attempted to have the reassessment undertaken by Dr. Federoff. Unfortunately, Dr. Federoff’s schedule was such that he was unable to perform the reassessment. After speaking to K.O., Mr. Smith informed the court that there would be no objection in having Dr. Klassen reassess K.O.

[176] Dr. Klassen met with K.O. on January 4, 2013, and provided a seven page report setting out the findings of his reassessment dated January 22, 2013. On January 25, 2013, Dr. Klassen testified before the court. He described his purpose in re-attending upon K.O. as being to review his progress on sex-drive reducing medication and also to ask K.O. questions related to his sexuality and to address some of the core aspects of the sexual dimensions of the case.

[177] K.O. has been receiving the average dose of Lupron administered monthly. Dr. Klassen reported that K.O. has now been in jail for five and a half years. He is now 25 years of age since his transfer to the adult facility at OCDC in 2007. He has received no counselling of any kind. K.O. self-reported that he had been subject of two misconducts in the past year, one for passing notes and another for an altercation with another inmate. K.O. said most of the altercations with other inmates have arisen because of the nature of the charges for which he has been convicted. He informed Dr. Klassen that he was segregated for four months following news reports of his conviction in 2009.

[178] Along with Lupron, K.O. is being medicated with anti-depressants. K.O. has gained 70 pounds since commencing his Lupron medication and now weighs approximately 260 pounds. Dr. Klassen found this to be unusual. K.O. believes that his testosterone level has declined as well as his strength. He says his sexual drive has decreased. He finds that his erections are not as hard, and while he is able to achieve orgasm, it is attenuated. Whereas previously he would masturbate three to four times per week, he now masturbates once per month and believes that he would not be capable of penetrating a partner at this time. When asked how he would rate himself, assuming his prior sex-drive was 10 out of 10, he stated it was now 3 or 4 out of 10. He sees himself staying on the medication but acknowledged he was uncertain how he would deal with the issue should he connect with a potential girlfriend.

[179] Dr. Klassen asked K.O. to comment on his plans were he found to be a long-term offender. K.O. stated that he would spend time with his family and work and try to live a normal life. He wished to live in Quebec with his mother. He would receive counselling regarding employment and sex offender treatment. He said he would be agreeable to psychological or pharmacological sex offender treatment and would never use alcohol again.

[180] Dr. Klassen reviewed the sexual offence history with respect to the offence involving Victim 1. K.O. maintained that their interaction was consensual. With respect to Victim 2, he stated there is nothing further that he can recall. Significantly, with respect to his interaction with Victim 3, and whether there was any change in his report, he responded “a bit, yeah.” He acknowledged that he walked Victim 3 to his house, but denied that he made a comment about possessing a knife. He told Dr. Klassen he was intoxicated. Dr. Klassen asked him whether his intention was to sexually assault Victim 3 and he stated “Yes.” He was asked when the offence was conceived and what might have triggered it. K.O. stated that it was conceived “in the moment, not planned” and he was not sure why he chose to offend or why he chose Victim 3 to be his victim. He stated that he could not recall placing his finger in Victim 3’s anus and stated that there was no blindfold on her “but the rest is correct.” He then indicated that he never spoke to her about rape. He could not recall “pinching her nipples or slapping her vagina” and wondered if “she had to spice it up a bit, a lot of it was fabricated.”

[181] He was asked if the event excited him and he stated he was intoxicated. He was asked whether aggression, control or humiliation excited him. He denied that they did when he was not intoxicated but they must have aroused him when under the influence of alcohol. He asked K.O. if he had not told the truth on the stand, and he said “yes, in certain parts” and explained that “he did not wish to acknowledge that he had a problem.” He maintained that he has no aggressive sexual fantasies.

[182] With respect to the phallometric test result, K.O. said that he was shocked by the results. Dr. Klassen pointed out that K.O. was not under the influence of alcohol during the testing, suggesting an inconsistency that he did not get aroused to aggressive sexuality when not intoxicated. Dr. Klassen challenged K.O. and stated that he did not believe that he was not aroused by aggressive sexuality and suggested that he knew more than he was disclosing. K.O. stated he had never been close to engaging in behaviour like that with Victim 3 before. He then agreed that he had an interest in sexual aggression which was disinhibited by alcohol.

[183] Dr. Klassen testified out that he would not expect K.O. to receive counselling at a remand facility such as the OCDC. He noted that when people are treated with sex-drive reduction medicine they become less reactive and less physically violent. K.O. has not had a misconduct since being placed on Lupron. As to the absence of misconduct history, Dr. Klassen testified that it was not necessarily comforting as to whether this would signal a change in his behaviour in the community. “So I would say I wouldn’t change my opinion greatly on the basis of the misconduct history, taking into account what we know about K.O.’s manageability in the community previously.”

[184] With respect to the anti-depression medication being prescribed to K.O., Dr. Klassen testified that K.O. has never presented as being depressed, but rather has presented as being in very good spirits. “This might indicate that the medication is working,” in November 2009, K.O. informed Dr. Klassen that he was always positive and not depressed but rather that he was an upbeat individual.

[185] With respect to K.O.’s significant weight gain due to being medicated with Lupron, Dr. Klassen opined that generally people on Lupron are living in the community, walking around and exercising, whereas K.O. is in custody.

[186] With respect to K.O.’s self-report as to the effects of Lupron on his sexual performance, Dr. Klassen believed that he was “completely average. It’s more or less exactly what I would expect to hear. Sex drive of 3 to 4 out of 10, a little bit of ejaculate, but not as gratifying, difficulties with the strength of erection and reduced frequency of masturbation…his self-report was typical.”

[187] With respect to the change in his description of how events unfolded with Victim 3, Dr. Klassen testified that K.O. was “still dancing around the self-disclosure issue,” acknowledging some things but not others.

[188] In this context, Dr. Klassen referred to an e-mail he received from K.O. following the interview in which K.O. stated the following:

There are things that have happened to me in the past that I have never spoken of. I held back when you asked me some questions regarding triggers and aggression, but did not hold back for the reasons you expected. To answer your question, I would have had to share, to expose dark moments of my personal tragedies all while under the pressure of knowing anything I said would be open to the public’s scrutiny, can you imagine how vulnerable that would feel? I can, and even though they are the least of my problems, I personally felt how brutal the media can be. My life is on the line, and still I can’t get over my apprehensions. This is why I held back. That saying (sic), I agree with your suggestion that eventually I will have to speak about these and other issues in a more private/out of the spotlight/setting I will. In the meantime by facing and admitting my guilt, and continuing to take medication, I will continue to take the important steps towards rehabilitation.

[189] Dr. Klassen testified that the suggestion of some “dark aspect” in his past which was preventing K.O. from disclosing fully to Dr. Klassen, prevented him from offering an opinion on risk management which would have been helpful to the court were it able to learn more about these dark secrets, Dr. Klassen testified:

I’m not asking these questions to determine whether he has sexual sadism or not. There is no doubt in my mind this man has a sexual behaviour disorder. The phallometric testing is very clear, his event history and life history are very clear. This gentleman does not suffer from other conditions that could conceivably result in the behaviour, certainly with Victim 3. I don’t have any questions about what his sexual behaviour disorder is, I’m just trying to understand how it unfolds, so that was really the gist of it. So I mean at the end of the day – what I am getting at might be your question – I don’t really care whether he says to me yes or no, in some respects, whether he has an underlying sexual behaviour disorder because I know, respectfully, as sure as any psychiatrist could be in this kind of a situation, given the phallometrics, the offence history and other aspect of the matter, I am as sure as I think I could be that this man has a sexual behaviour disorder. What I really want to know is “what are you going to tell me about how it unfolds?”

[190] Dr. Klassen opined that, even if in fact K.O. might have been sexually abused as a child, this does not translate into becoming a sexual sadist. “I think the notion that there is proximal association or a tight association between sexual abuse and sexual offending is flawed, I don’t think that is true.” Dr. Klassen added that he currently spends his time overseeing a trauma clinic for people suffering from post-traumatic stress disorder who had been sexually assaulted or abused and has had the opportunity to base his opinion on vast experience.

[191] With respect to K.O.’s disclosure given his present situation facing a possible designation as a dangerous offender, Dr. Klassen stated “I would say it is still going to be a struggle to be able to trust K.O. in terms of self disclosure in the service of risk management.”

[192] The e-mail from Dr. Klassen must also be viewed in the light of Dr. Federoff’s initial assessment of K.O. in 2006. In that assessment, K.O. told Dr. Federoff that there was no personal history of physical of sexual abuse. In 2010, he informed both Dr. Klassen and Dr. Federoff that he had never been subjected to physical or sexual abuse as a child.

[193] Notwithstanding that K.O. was taking Lupron, Dr. Klassen testified:

We have a situation where in my opinion we have a diagnosis that is predictive of serious and increasingly severe and repetitive sexual assault, a diagnosis that will be active for quite a number of years yet, and an individual who has not restrained those behaviours and has not disclosed to us about how to help him manage them…I’m not concerned about what his level of sincerity is right now, this gentleman needs to be on Lupron if he is going to be in the community…You’ve all looked at this last offence and you see the trajectory of the three offences, you know? And the phallometric testing in my opinion for the foreseeable future, absent some really remarkable character change, I wouldn’t even – I’m not worried about the nuances quite frankly of whether he, you know, is very sincere, moderately sincere or doing this to look better. First of all I would be speculating on a lot of that I think anyway. Secondly of course, he’s going to be ambivalent as a 25 year old male who is chemically castrated and who has a history of begin physically attracted and sexually active. But at the end of the day, as far as I’m concerned, he’s got to be on that drug or a related drug… We know that typically those individuals will show an increase in the severity of their offending and that once they begin to offend they will often not stop until they are apprehended, so this is a serious issue…If you look at data regarding sexual offending and age, what you see is that stranger rape or something roughly analogous to that – I appreciate that Victim 2 wasn’t really a stranger and that you could argue the first victim was sort of an acquaintance, but that these things are basically off the table by age 60. So by age 60 you really just don’t see that. By age 50, and I’m picking these numbers because they are round numbers, you will appreciate that this is a process that is not step-wise, it’s a process that is continuous, but by age 50 the risk is already quite low with respect to those kinds of sexual assaults. But you know they certainly do happen in the 30’s and the 40’s, that is to say when a person is in their 30’s and 40’s…My concern is what do we do to make sure that we have the right risk management measures in place to take this gentleman through to a point in time when, at least, based on group data, it becomes statistically unlikely that he is going to offend irrespective of whether he’s on Lupron or not…We have to bear in mind we are talking about a very long time frame here.

[194] Dr. Klassen testified that if K.O. is not released into the community, he should stop taking Lupron because there is no reason to be on Lupron while in prison. He is also concerned about the loss of bone density should he continue Lupron while in prison. Dr. Klassen testified that he has seen several thousand sex offenders at the federal, provincial and community level. He stated:

I could probably count on the fingers of two hands the number of persons that have taken Lupron…If this gentleman is willing to be on Lupron I think we need to have a safety net so that his tensions and frustrations that this drug brings can be managed, but at the same time also acknowledge that it is probable that this drug will have a very significant effect on his risk for re-offence and should be taken very seriously… he should be supported in it. It is a huge step for him to be on Lupron… my only concern is keeping him on it, but I think we have to acknowledge that if somebody is on Lupron they have taken, in my estimation, the single biggest risk reducing step that a person can take in sex offending…If this gentleman stays on Lupron, I would respectfully submit to you that a big chunk of the problem is taken care of.

[195] In his written report, Dr. Klassen stated that K.O. now appears to acknowledge some sexual behaviour issues although his self-report of his offending “is not optimal, and his self-report of triggers-antecedents: his offence cycle remains poor; I do not believe that we are better placed to anticipate and manage his sexual issues then we were before, save and except for the fact that he is on Lupron.”

[196] Dr. Klassen believes that K.O. might also benefit from stimulant treatment for his ADHD and might benefit from the use of anti-alcohol chemotherapy. He reported:

I might also add that we now believe that the SORAG probabilities of re-offence are overestimates, as the SORAG outcome data are older, and base rates of sexual recidivism have declined. We are awaiting publication of new SORAG probabilities, expected shortly.

It remains my opinion that this man suffers from sexual sadism. It remains my opinion that he will need external controls until approximately age 50 (including any of chemical castration or incarceration). We will likely need legal leverage for pharmacological sex-drive reduction, given his side-effect burden and his history of poor compliance in the community. His risk on release is undoubtedly better on Lupron but the question remains: how do we keep K.O. on Lupron until age at release serves to protect the community, a time frame of approximately 25 years?

[197] In response to questions by Mr. Smith, Dr. Klassen stated that the fact that K.O. is presently on Lupron “does change the landscape in terms of reasonable possibility of eventual control of the risk. As you know, the focus now is just how do we make sure that the leverage is there for this gentleman to stay on Lupron going forward…some kind of legal leverage.”

[198] Dr. Klassen was asked by the court about K.O.’s transition from a point of absolute denial of the sexual assault of Victim 3 to an admission of guilt of rape. Dr. Klassen stated:

Yes. I would respectfully submit even more than absolute denial, I mean K.O., for lack of a better way of putting it, seemingly concocted a fantastic story about his association with Victim 3 previously, a fabricated sort of explanation or alibi for his behaviour, and he does not hold to that at this point, but rather would appear to have moved significantly toward the description of events as per your finding.

[199] With respect to eventual control in the community and the risk that K.O. poses, Dr. Klassen testified:

Without wanting to offer a diagnosis I would reference the Commander of an army base in the Ontario area, that widely publicised trial, which again is very interesting to see something like that coming up in the 40’s for the first time, but as long as we’re employing group data, I have to live and die by the sword, and the group data says that risk goes down, in somewhat of a logarithmic fashion from the teens and twenties through the thirties and forties and that it is quite low at age 50 and absent by age 60.

The Dangerous Offender Regime

[200] Part XXIV of the Criminal Code, embraces the provisions relating to dangerous offenders and long term offenders. These provisions are triggered only when an offender has committed “a serious personal injury offence.” In the case of K.O., no one disputes that the kidnapping and sexual assault of Victim 3 while threatening to use a knife constituted a serious personal injury offence. Both counsel are also agreed that K.O. is subject to the legislation in the Criminal Code as it existed at the time of the offence in 2007, which is here reproduced:

753(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

i. a pattern of repetitive 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 failure in the future to restrain his or her behaviour

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, or

iii. any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

(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.

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.

(5) If the court does not find an offender to be a dangerous offender,

(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or

(b) the court may impose sentence for the offence for which the offender has been convicted.

753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), 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.

(2) Substantial risk - The court shall be satisfied that there is a substantial risk that the offender will reoffend if

(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

i. has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or

ii. by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence.

(3) If offender found to be long-term offender - Subject to subsection (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall

(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and

(b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.

[201] In R. v. Johnson, 2003 SCC 46, 2 S.C.R. 357, the Supreme Court of Canada determined that although the criteria for dangerous offender status and long term offender status are the same, a sentencing judge retains the discretion not to declare an offender dangerous even if all the statutory criteria are met. The discretion of the sentencing judge must be exercised in accordance with relevant sentencing principles contained in the Criminal Code which require consideration of a less restrictive sanction where it would attain the same sentencing objectives than a more restrictive sanction seeks to attain. An indeterminate sentence should be imposed only if there do not exist less restrictive means such as a definite sentence or long term offender designation that could protect the public adequately from the threat of harm. The sentencing judge must consider whether the sentencing sanctions contained in the long-term offender provisions are sufficient to reduce the threat to an acceptable level, despite the fact that the statutory criteria pertaining to dangerous offender status have been met. If the threat can be reduced to an acceptable level through a definite period of detention or a definite period of detention followed by a long term supervision order then the judge cannot properly declare an offender to be dangerous and impose an indeterminate period of detention.

[202] There are four routes to a finding that an offender is a dangerous offender in s.753(1) of the Code. Three routes are set out in s. 753(1)(a): namely, repeated pattern of behaviour; persistent aggressive behaviour; and the brutal nature of the crime. A fourth route is captured in s. 753(1)(b) namely a sexual offence. Each route is disjunctive, and proof of any single criterion is sufficient to find that a person is a dangerous offender: R. v. Lewis (1984), 46 O.R. (2d) 289 (C.A.).

[203] Dealing with the first route requires a pattern of repetitive behaviour by the offender showing a failure to restrain his or her behaviour and a likelihood of causing death or injury, or inflicting severe psychological damage on other persons through a failure in the future to restrain his behaviour. The offence for which the offender has been convicted must form a part of the pattern. It may be noted that in terms of establishing a pattern, a prior incident is sufficient provided that the prior incident and the predicate offence display elements of similarity. As the number of prior incidents increases, the degree of similarity required decreases. The offender’s crimes must contain similarities with each other in order to create the pattern but there can still exist distinctive differences as long as the differences leave the key significant elements in place: R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 45 O.R. (2d) 705 (C.A.).

[204] The second component of the first route is that the pattern must reveal a likelihood that the offender will cause death, injury or severe psychological damage to others through failure to control his behaviour in the future. “Likelihood” has been interpreted as being something less than certainty or probability. An individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at paras. 97-100.

[205] The second route to a finding of dangerous offender status requires a pattern of persistent and aggressive behaviour with a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to others. “Persistent” has generally been held to be the same as “repetitive”: R. v. Naess, [2005] O.J. No. 936 (Sup. Ct.). The second component of the provision providing for “a substantial degree of indifference regarding the reasonably foreseeable consequences” requires evidence which demonstrates that the offender has a conscious but indifferent awareness of causing harm to others through the pattern conduct: R. v. George (1998), 1998 CanLII 5691 (BC CA), 109 B.C.A.C. 32 (C.A.).

[206] The third route to a finding of dangerous offender status requires an offence of such a brutal nature that the court is compelled to conclude that the offender’s behaviour is unlikely to be inhibited by normal standards of restraint. What is required to fulfill this provision is conduct which is “coarse, savage and cruel and which is capable of inflicting severe psychological damage.”: Langevin, at p. 11.

[207] The fourth route to a finding of dangerous offender status requires the commission of a sexual offence and that the offender has by his conduct shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil through failure in the future to control his sexual impulses.

[208] Mr. Smith, on behalf of K.O., does not dispute that K.O. meets the criteria for a finding of dangerous offender status using any of the four routes. Both Dr. Klassen and Dr. Federoff found that K.O. met the standard by any of the four routes. As well, because the definition of “long term offender” is subsumed by the definition of dangerous offender, K.O. without question fits the criteria required categorize him as a long term offender.

The Core Issue in This Case

[209] The only issue before this court is whether there is a reasonable possibility of eventually controlling the risk posed by K.O. by placing him in the community.

[210] In R. v. G.L., 2007 ONCA 548, 87 O.R. (3d) 683 at para. 70, the court stated:

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.

[211] In R. v. R.B., 2011 ONCA 328, O.J. No. 1871, the court stated:

A long term offender order is available only if there is a reasonable possibility that an offender's risk can be addressed and eventually controlled in the community - supervised during the currency of the LTO supervision order and unsupervised at the completion of the order. The statutory scheme contemplates a dangerous offender designation, and not a long-term offender order, where a sentencing judge is not satisfied that this criterion has been met.

[212] Reasonable possibility of eventual control must be based on evidence, not a hope and a prayer: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.).

[213] In R. v. Goforth, 2007 SKCA 144, 302 Sask. R. 265, the Saskatchewan Court of Appeal dealt with a LTO order made on the basis of a psychiatrist’s opinion that because the offender had never taken any programs, it could not be concluded that there was no chance of any eventual control of the risk in the community. The trial judge relied on the psychiatric evidence and found that there was a possibility of eventual control in the community if the offender availed himself of treatment programs. The court of appeal overturned the holding and stated:

The line of analysis employed by Dr. Holden and the trial judge runs counter to a substantial body of appellate level case law. Section 753.1(1)(c) of the Code requires that, in order to warrant a long-term offender designation rather than a dangerous offender designation, there must be a reasonable possibility of eventual control in the community of the risk of reoffending posed by the offender. The authorities indicate 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.

[214] In R. v. Walford, [2007] O.J. No. 744 (Sup. Ct.) it was held that a reasonable possibility of eventual control in the community requires a degree of realism in the proposed plan:

Where evidence about the effect of future treatment on the offender's risk of re-offending is subject to contingencies, and the evidence is unclear about whether there is a reasonable possibility of the contingencies being satisfied, the court may conclude that such evidence is no more than an expression of hope that future treatment will be effective.

[215] The Goforth and Walford decisions are particularly germane to the opinion offered by Dr. Federoff that K.O. has not been given the benefit of individual and group therapy for sex offending, and affiliation with a program such as COSA. Dr. Federoff also testified that before he would rule out K.O. being designated a long term offender, he should have demonstrated failure in such programs. As was pointed out in Goforth, this line of reasoning runs counter to a substantial body of appellate case law which holds that the mere possibility that the offender might benefit from treatment is insufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of re-offending.

[216] Salient to this discussion is Dr. Klassen’s evidence that K.O. is dysfunctional. One of his personality disorders was that he is unrealistically self-assured, and that self-satisfaction is not associated with positive treatment outcomes. Dr. Federoff agrees with Dr. Klassen that K.O. has a personality disorder.

[217] More troublesome to me, however, is the conclusive opinion of Dr. Klassen and the “provisional” opinion of Dr. Federoff that K.O. is a sexual sadist. Having heard all the evidence on this point, I have no difficulty in concluding that K.O. is a sexual sadist. The concern with sexual sadism, and in particular as concerns K.O., is that his offences have progressed in violence over time. When we add K.O.’s well-documented history of addiction to alcohol, the prognosis for correcting his criminal behaviour deteriorates even more. K.O.’s scores on the SORAG and the STATIC-99R identify him as being in the 98th and 99th percentile to re-offend violently and this risk will continue until K.O. is in his forties and will not diminish significantly until he is in his fifties. Therein lies the dilemma for the court.

[218] K.O. has undertaken anti-androgen medication for the last 14 months. The medication has had a noticeable effect upon his body. He has gained a considerable amount of weight. He self-reports a diminished sex-drive, although no baseline testing was undertaken by Dr. Helen Ward to actually measure the degree of suppression in Mr. K.O.’s case. For the purposes of this decision, I will assume that K.O.’s sex-drive had been substantially suppressed as a result of the anti-androgen medication.

[219] The difficulty facing the court is that, on all the evidence, and in particular that of Dr. Klassen, it is clear that K.O. must continue to take this medication until he reaches the age of 50, roughly for another 25 years.

[220] K.O. has been in custody since his arrest on August 6, 2007. The norm at the time of his offence was to afford prisoners “two for one credit” when being held in custody. This was changed on February 22, 2010 when the Truth in Sentencing Act, S.C. 2009, c. 29 came into force. On that date, he had been in custody for 930 days. At a ratio of two for one, he should be afforded 1860 days of pre-sentence credit. Since the amendment of February 22, 2010 until today, he has been in custody a further period of 1130 days, which totals 2992 days, or roughly a total of 8.2 years of pre-sentence credit. He has effectively served the determinate sentence which would be imposed for a serious sexual assault. Even assuming that a further determinate period of, for example, three years, were imposed, followed by a long term offender designation for 10 years thereafter, K.O. would still be in his thirties when the long-term offender order expired. Sadly, it would expire when K.O. would still be at a very dangerous point in his life.

[221] There has been a considerable amount of evidence to demonstrate that K.O. is completely non-complaint with court orders. Notwithstanding constant expressions of willingness to improve, K.O. constantly disappoints. He has a history of lying, manipulation and self-deception. Given his personality disorder, his addiction to alcohol, his history of non-compliance with court orders and the fact that he is a sexual sadist gives the court no comfort that he would continue to take anti-androgen therapy or counselling or refrain from drinking at the conclusion of a long‑term supervision order. In other words, at the conclusion of the 10 year supervision order, there is nothing in the evidence to suggest that K.O. would become a law abiding citizen. The evidence suggests the opposite.

[222] K.O. has a natural predisposition to violent sexual assault. The risk to society is evident. His professed plan to return and live with his mother upon eventual release affords the court no comfort whatsoever. Notwithstanding K.O.’s statements to Dr. Shields that he came from a loving and supportive family, the record reveals that he has been in conflict with his mother from a very early age. She has been unable to control his behaviour at critical points in his life. Moreover, K.O.’s father would depart to Africa frequently, leaving his mother to cope with their children with the constant intervention of social service agencies.

[223] K.O. did not testify on the dangerous offender hearing. All we know is what he has told Dr. Klassen and Dr. Federoff. In my opinion, K.O. is a practised liar. The most significant shift that has occurred is his recent admission to Dr. Klassen, wherein he did in fact rape Victim 3, although he did not admit to the more gruesome details of the rape. I have no doubt that the details of the rape occurred exactly as Victim 3 recounted. I have already commented and will repeat that I find it disturbing that not only did K.O. deny the sexual assault of Victim 3 but at trial offered a richly detailed account of what occurred on the night of July 31, 2007. This causes me great concern, for it is one thing to be capable of lying, it is quite another to be capable of manufacturing a tapestry of lies. K.O. is capable of the latter and cannot be trusted to tell the truth. Thus, even had he testified during the hearing, and told the court that he intended to take counselling, stop drinking and continue anti-androgen therapy until he was no longer a threat to society, the court would have had to reject such testimony because it is belied by K.O.’s utterly lamentable history. In R. v. D.A.M., 2011 ONCA 717, O.J. No. 5028 at para. 4, the court stated:

…given the appellant's admitted lengthy pattern of deceitfulness and manipulation of his victims, caregivers and parole supervisors, there was serious reason to doubt whether he would take Lupron as a condition of his eventual release into the community.

[224] In K.O.’s case, there is serious reason to doubt that he would continue to take Lupron following the expiration of a long-term supervision order. While K.O. has demonstrated that he is willing and capable of taking Lupron, I must conclude that his personality is such that it is more likely that he is engaging in impression management rather than a fundamental personality change. Given the very high stakes that this hearing involves, the court would be foolish to gamble on K.O.’s potential danger to the community should he be released without conditions prior to age 50.

[225] In conclusion, I find that K.O. is a dangerous serial rapist who has demonstrated a contempt toward court imposed conditions. There is no reason to believe he would be amenable to conditions while living in the community. Even if he were, since he poses a serious threat to women until he is about age 50, the only way society can be protected is by designating K.O. to be a dangerous offender. I am satisfied beyond any doubt that K.O. is dangerous and one of those relatively small number of offenders who pose a continuing threat to the physical and mental wellbeing of potential victims: Lyons and R. v. Neve, 1999 ABCA 206, 237 A.R. 201.

[226] In the result, on counts one and two in the indictment, K.O. will be sentenced to an indefinite term in penitentiary. I would ask the National Parole Board to take note of the fact that K.O. is willing, and able, to take Lupron to suppress his sexual sadism, which might prove to be significant factor in considering release at some appropriate time in the future. He shall be credited with 8.2 years of time served.

[227] In accordance with the provisions of s. 109 of the Criminal Code, K.O. shall be prohibited from possessing weapons for the remainder of his life.

[228] In accordance with the provisions of s. 490.013 of the Code, K.O. shall be required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for the remainder of his life.

[229] There is no necessity for an order to take a sample of his D.N.A., as such an order was made by Justice Lajoie in 2006.

C.D.A. McKinnon J.

Released: March 27, 2013

COURT FILE NO.: 07-19962

DATE: 2013/03/27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

K.O.

deCISION RESPECTING AN APPLICATION BY THE ATTORNEY GENERAL FOR ONTARIO TO HAVE K.O. DECLARED A DANGEROUS OFFENDER

C. McKinnon J.

Released: March 27, 2013