Her Majesty the Queen v. Umar Akbar, 2014 ONSC 3700

COURT FILE NO.: 077/12

DATE: 20140619

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

UMAR AKBAR

J. Strasberg and M. Wilson, for the Crown

P. Tomlinson, for the Accused

HEARD: September 5, 6, 9-11, December 23, 2013, and May 2, 2014

REASONS ON DANGEROUS OFFENDER APPLICATION

GARTON J.:

introduction

[1] The offender, Umar Akbar, age 60, pleaded guilty on August 13, 2012, to sexually assaulting H.D. on March 8, 2011. The Crown has applied for an order pursuant to ss. 753(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, declaring Mr. Akbar to be a dangerous offender and for the imposition of a sentence in a penitentiary for an indeterminate period.

[2] Counsel for Mr. Akbar opposes the application. The position of the defence is that Mr. Akbar does not meet the criteria of either a dangerous or long-term offender. Defence counsel submits that a sentence of time served in pre-trial custody – approximately 3 years and 3 months – plus a period of probation, with a condition that Mr. Akbar take treatment for substance abuse, would be fit and proper in all the circumstances. In the alternative, counsel for Mr. Akbar submits that if this court declares Mr. Akbar to be a dangerous or long-term offender, the appropriate sentence would be a period of supervision with conditions for strict and comprehensive out-patient treatment.

[3] The Crown called the following witnesses at this hearing:

i) Dr. Angus McDonald, a forensic psychiatrist, who interviewed Mr. Akbar on two occasions following his arrest on the predicate offence for the purpose of determining his fitness to stand trial;

ii) Dr. Philip Klassen, a forensic psychiatrist, who interviewed Mr. Akbar for six hours over the course of three meetings. Dr. Klassen prepared a psychiatric assessment pursuant to s. 752.1 of the Criminal Code;

iii) Mark Nikolic, a probation and parole officer, who supervised Mr. Akbar during a conditional sentence and two probation orders;

iv) Winston Wong, a probation and parole officer, who supervised Mr. Akbar during a three-year probation order imposed on December 12, 2005.

v) Elizabeth Vitek, who is employed by Correctional Service Canada (“CSC”) as the Area Director of the Downtown Toronto Parole/Women’s Supervision Unit. Ms. Vitek explained the various treatment programs offered in the federal penitentiary system, parole elegibility and the supervision of offenders who are subject to long-term offender supervision orders (“LTSO’s”); and

vi) Rhonda Frank, a social worker employed by the Ministry of Community Safety and Correctional Services, and the Deputy Superintendent of Programs at the Maplehurst Correctional Complex in Milton. Ms. Frank explained the treatment programs available in the provincial reformatory system;

[4] The Crown also relies on probation and correctional records from the various institutions where Mr. Akbar has been incarcerated, and on an assessment prepared by Dr. Karen De Freitas in 2005. Dr. De Freitas, a forensic psychiatrist at the Whitby Mental Health Centre, prepared a report for Rivard J. prior to sentence being imposed on Mr. Akbar for a sexual assault committed in 2003.

[5] For the reasons that follow, I find that Mr. Akbar meets the criteria of a dangerous offender and that the appropriate disposition is a determinate sentence of five years, to be followed by an LTSO for a period of ten years.

THE PREDICATE OFFENCE: SEXUAL ASSAULT ON MARCH 8, 2011

[6] The facts agreed to by Mr. Akbar upon his entering a guilty plea to the sexual assault of H.D. are set out below.

[7] Mr. Akbar and H.D. were old acquaintances but had not seen each other for several years prior to the offence. They had never been involved in an intimate relationship.

[8] In February 2011, Mr. Akbar and H.D. met by chance on a street car in downtown Toronto. At the end of this encounter, H.D. gave Mr. Akbar her telephone number and told him to call her if he was in the west end of the city. H.D. had a boyfriend at the time – A.H. – who ended up witnessing the sexual assault.

[9] About a week later, Mr. Akbar called H.D. and asked if he could visit her. H.D. agreed and Mr. Akbar arrived at her home later the same day. They hung out, caught up on news, drank and listened to music. At the end of the night, Mr. Akbar left the apartment without incident.

[10] A few days later, Mr. Akbar again visited H.D. at her home. H.D.’s nephew was also present. At some point, Mr. Akbar took a photograph on his digital camera of H.D. sitting in a chair. They were all drinking and listening to music. Mr. Akbar became intoxicated and made an unwanted advance towards H.D. She rebuffed him. When Mr. Akbar bent over and kissed her on the cheek, she ordered him out of the apartment. Mr. Akbar left shortly thereafter.

[11] Mr. Akbar later telephoned and apologized to H.D. She accepted his apology.

[12] On March 7, 2011, at approximately 6:00 p.m., H.D. and A.H. were at H.D.’s home when Mr. Akbar called and asked for their help in moving out of his apartment. H.D. told him that both she and A.H. were willing to assist. Mr. Akbar also asked if he could come over and hang out with them. H.D. invited him over.

[13] Mr. Akbar arrived at H.D.’s place with a large bottle of Sambuca, which is an anise-flavoured liqueur. The three of them then visited, listened to music, and drank the Sambuca. Mr. Akbar wanted to control the music that was being played, which irritated H.D. and A.H.

[14] Around midnight, Mr. Akbar left the apartment, stating that he wanted to go to a bar as all the Sambuca had been consumed. H.D. and A.H. stayed home. About five minutes later, Mr. Akbar returned and said something about a woman calling for help. H.D. and A.H. could not hear anything. Mr. Akbar came back inside the apartment.

[15] A.H. and H.D., who was feeling drowsy, went to bed and locked the bedroom door. They allowed Mr. Akbar to stay the night. He was to sleep on the couch.

[16] H.D. did not ordinarily lock her bedroom door as there was a hanger device on the back of the door that prevented it from closing. However, on this date, A.H. removed the device and locked the door. He and H.D. got into bed and quickly fell asleep. H.D. was wearing a sweater, underwear and track pants.

[17] At approximately 3:30 a.m., A.H. woke up suddenly and saw a shadow over the side of the bed, next to where H.D. was sleeping. He then saw that Mr. Akbar had his head between H.D.’s legs. H.D. was naked from the waist down. A.H. sprang out of bed, grabbed Mr. Akbar and restrained him on the floor. The bedroom door was wide open, allowing light from the hallway to enter the room. H.D., who was startled by the commotion, woke up and realized that she was not wearing her underwear. She quickly covered herself. Mr. Akbar was ordered out of the apartment. H.D. called him a cab.

[18] When A.H. told H.D. what he had seen, H.D. felt repulsed and had a bath. They later called the police. H.D. had a second bath prior to the police arriving. An investigation was commenced and H.D. was taken to the hospital. She did not sustain any physical injury.

[19] On March 11, 2011, Mr. Akbar, who had gone to Halifax, called the Halifax Police Service to report an unrelated matter. The Halifax police arrested him at his mother’s home when the warrant for his arrest on the sexual assault charge came to light. Mr. Akbar was subsequently transported back to Toronto and, on March 14, 2011, consented to his detention.

[20] Mr. Akbar agreed that the above facts, which were read by the Crown following his guilty plea, were correct. Counsel for Mr. Akbar then elaborated on the substantial quantity of alcohol consumed by Mr. Akbar on the night in question. He stated that Mr. Akbar, whose nickname is apparently “Sambuca King”, had brought a 40-ounce bottle, as well as a thermos of Sambuca, to H.D.’s apartment. All the Sambuca was consumed between 7:00 p.m. and 1:00 a.m. Although H.D. and Mr. Harper consumed some of the liquor, Mr. Akbar drank most of it.

[21] Mr. Akbar acknowledged to Dr. Klassen that he had taken a photograph of H.D. during his second visit to her home. He stated that after he and H.D. reconnected (they had not previously had a sexual relationship), they had been in bed together but had not engaged in sexual activity due to his level of intoxication. He continued, “There was no sexual assault anyway.”

[22] Mr. Akbar told Dr. Klassen that A.H. was present on the evening of March 7 and that there had been some conflict over the choice of music being played. He denied that he left to go to a bar; rather, he knocked on a neighbour’s door after hearing a woman calling for help. After being told that all was well, he returned to H.D.’s apartment and began to watch television. He was intoxicated and could not recall what happened after that. He did recall tripping and falling onto H.D.’s legs but denied that he disrobed her. There was no sexual intent. He was not ordered out of the apartment and stated that he tripped on his way to the washroom. According to Dr. Klassen, Mr. Akbar appeared to acknowledge that he had earlier tried to get into bed with the victim.

[23] When asked if he had anything to say prior to this court imposing sentence, Mr. Akbar apologized for his behaviour and stated that he wished to tell H.D. how sorry he was for his actions. He added that at the time of the offence, he had a problem with prescription drugs. Although Mr. Akbar’s statements were not under oath, he appeared sincere and I accept his expression of remorse as genuine.

BACKGROUND OF OFFENDER

[24] Mr. Akbar is 60 years old and the second eldest of six siblings. He has a lengthy and varied criminal record. At the time of his arrest, he was dependent on the Ontario Disability Support Program (“ODSP”) due to a degenerative disc disease. He has been on ODSP since 1995, when he suffered a back injury while intoxicated. He suffers from asthma and uses an inhaler. Records from the Toronto Jail, dated January 11, 2013, note that Mr. Akbar has a heart condition. He was taken to the hospital on that day after complaining of chest pain.

[25] Dr. Klassen conducted fairly extensive interviews of Mr. Akbar about his personal history. He also had a lengthy telephone conversation with Mr. Akbar’s sister, Deborah Perkins, who is one year older than Mr. Akbar. Dr. Klassen described Ms. Perkins as quite articulate and a “thoughtful historian.” Although she has not seen Mr. Akbar for six years, they have maintained regular telephone contact. Ms. Perkins is married with children and lives in Montreal. She has a grade 12 education.

[26] Mr. Akbar was born in Halifax. His mother, Barbara Bowen, who currently resides in a nursing home in Nova Scotia, was a self-employed hair dresser and also worked at a fabric company. She has had two strokes. According to Mr. Akbar, the strokes have not affected her cognition, although Ms. Perkins suggested otherwise to Dr. Klassen.

[27] Mr. Akbar described his relationship with his mother as “great.” Ms. Perkins, on the other hand, stated that their mother does not have a particularly good relationship with any of her children, all of whom left home before the age of seventeen. Ms. Perkins stated that Mr. Akbar adored his mother, despite the fact that his mother rejected and continues to reject him – a state of affairs that Ms. Perkins described as “pitiful.”

[28] Mr. Akbar met his biological father on only one occasion, when he was 20 years old. His father died ten years ago. Mr. Akbar’s step-father, Gordon Bowen, is also deceased.

[29] Ms. Bowen was a single mother who left her children to be raised by their grandmother. Ms. Perkins stated that their grandmother was a wonderful person and their childhood was very happy in the early years. When Barbara Bowen married Gordon Bowen, the couple moved to Montreal, leaving the children in the grandmother’s care in Halifax. Unfortunately, their grandmother had a heart attack and the children were sent to Montreal to live with their parents. Ms. Perkins described this as a horrible situation, as neither their mother nor their step-father wanted them. Mr. Akbar was treated very badly, used as a scapegoat, and beaten by Gordon Bowen, who also sexually molested Ms. Perkins. According to Ms. Perkins, their mother permitted both the molestation and the beatings. As family life was so difficult, Mr. Akbar took his life outside the home and onto the street. In the area of Montreal where they were living, they were the only African-Canadian family.

[30] Ms. Perkins described Gordon Bowen as a terrible person. He beat their mother and the household was filled with violence. When Mr. Akbar was 13 or 14 years old, he returned to live with his grandmother, where there was very little discipline. He then tried to return to the family home in Montreal, but was not wanted. He was living on his own by the age of 15 or 16. By that time, Gordon Bowen had left the household but, according to Ms. Perkins, “my mother wasn’t any better.”

[31] Both Mr. Akbar and Ms. Perkins advised that their brother Eric is much like Gordon Bowen. Their brother Douglas is currently facing a dangerous offender hearing. Numerous relatives suffer from a mood disorder.

[32] Mr. Akbar told Dr. Klassen that from his teenage years into his twenties, he essentially lacked any guidance, spent a good deal of time in jail, and was easily led by his peers into committing crimes, such as joyriding. He took on dares in order to belong to a group. He was part of a gang when he was young. He denied bullying and stated that he himself was bullied because of his skin colour.

[33] At some point, Mr. Akbar became a Muslim and changed his name from Ian Dorrington to Umar Akbar. Dr. Klassen testified that Mr. Akbar’s conversion to a different belief system is consistent with his having emerged from a very difficult childhood with a certain degree of anger and defiance.

Education

[34] In terms of schooling, Ms. Perkins stated that Mr. Akbar was bright but did not fit in at school. He seemed hyperactive. He was seen by Dr. Weiss at the Montreal Children’s Hospital and was treated with medication. Ms. Perkins told Dr. Klassen that notwithstanding his lengthy history of juvenile detentions, Mr. Akbar’s juvenile and behavioural difficulties were actually not that serious. It appears that he was largely defiant, difficult to manage, and that he sometimes stole.

[35] Mr. Akbar told Dr. Klassen that he was a behaviour problem at “every school I went to” and that he could not concentrate. He missed weeks of schooling because of the beatings inflicted on him at home. He was first suspended from school in grade 4 and claimed to have been expelled from every school he attended thereafter, largely due to lack of effort and distraction. He added that the medication he was receiving caused him to fall asleep. He believes that he suffered from attention deficit hyperactivity disorder (“ADHD”). Nonetheless, he found school an escape from his home life.

[36] Mr. Akbar believes that he left school when he was in grade 8. He obtained his GED in 1980.

Employment history

[37] Mr. Akbar told Dr. Klassen that he worked on and off as a labourer at Peerless Clothing between 1969 or 1970 to 1973. He worked part-time at a restaurant for a short period but then returned to his job at the clothing factory. He eventually lost that job because of his heavy drug use, which often caused him to be late or absent. He recalled having worked briefly at a warehouse. He stated that he would work “here and there” until he could obtain employment insurance. He was often incarcerated.

[38] Mr. Akbar told Dr. Klassen that he sold drugs from the age of 12 or “pretty well most of my life.” This was his main source of income for many years. He was “horrible” in terms of handling money and typically overspent on alcohol and at bars. He described drinking as his “big downfall.”

Relationship history

[39] Dr. Klassen summarized Mr. Akbar’s relationship history at pp. 7-8 in his report. Mr. Akbar has been married once and has lived in five common-law unions. He has had numerous casual sexual relationships. He has five children but has had no involvement with any of them. He does not even know where they live. All his children are the products of short-term relationships rather than serious partners. He has never paid nor been asked to pay child support. Mr. Akbar told Dr. Klassen that, latterly, all his girl-friends have been “fly-by-nights” and that it was rare for him to be with a partner for more than a week.

[40] Ms. Perkins stated that many of Mr. Akbar’s partners suffered from addictions. His relationship with his first partner ended as he was far too controlling, and she was quite needy. The second partner was an alcoholic and unstable. The third partner was very passive and there was a good deal of violence in the relationship. Ms. Perkins was of the view that Mr. Akbar’s use of alcohol and crack cocaine was a significant issue in that relationship.

[41] Mr. Akbar did not have friends but rather tended to have acquaintances. When not drinking, he might attend a Mosque. It is at the Mosque where he met his current best friend, “Brother Abraham.”

Drug and alcohol use

[42] Mr. Akbar stated that his use of alcohol was problematic even when he was a teenager, as it caused him to miss school. As an adult, there were work and relationship issues due to alcohol overconsumption. He drove while impaired, but infrequently. There is a history of intoxication-related injury.

[43] Mr. Akbar told Dr. Klassen that he drank to fit in, and sometimes to cope with depression, stress and anger. He drank daily, particularly when he was homeless. He could easily drink 40 ounces of liquor per day. His longest period of abstinence was three years, beginning in 1988. He relapsed after reconciling with his common-law partner, Mona Lisa, as there was a good deal of jealousy in that relationship.

[44] Mr. Akbar acknowledged that he could be more aggressive while under the influence of alcohol, but stated that drinking did not render him more violent or sexual. He expressed the view that he could safely return to alcohol use and that he does not need alcohol-related treatment. He was unsure whether alcohol ever played a role in any of his offending behaviour.

[45] Ms. Perkins confirmed that Mr. Akbar has a problem with alcohol. She stated, however, that he presents better under the influence of alcohol than under the influence of crack cocaine, which renders him “quite nasty.”

[46] Mr. Akbar began to use cannabis at age 11 or 12, and generally used it daily. He also sold cannabis. He stated that cannabis played no role in his criminal behaviour. It made him feel calm. Latterly, he has experienced paranoia while under the influence of cannabis.

[47] Mr. Akbar reported using hallucinogens (LSD and mushrooms) when he was younger. As an adult, his use of these drugs has been very sporadic.

[48] Mr. Akbar began to use opiates in his teens. He has used them intravenously, but not since 1971. In recent years, he was prescribed 42 Percocet pills per week by his physician. He has never been on a methadone maintenance treatment program and stated that he would not want to take such treatment.

[49] Mr. Akbar used amphetamines in the late 1960’s but stopped using them in 1971.

[50] Mr. Akbar first used cocaine in its powder form. He explained that at the time, this was a “status” issue. He later transitioned to crack cocaine. During heavy periods of consumption, he would use up to two or three eight-balls per day, which were shared with others. He stated that cocaine made him “mellow.” He did not pay for the drug, as he allowed others to use his apartment as a place to consume it.

[51] Mr. Akbar stated that he was a heavy user of crack cocaine from the 1980’s into the 1990’s. During the five years prior to his incarceration, he was spending no more than $40 per month on cocaine. He acknowledged experiencing some psychiatric symptoms (paranoia, hallucinations) while under its influence.

THE OFFENDER’S CRIMINAL RECORD

[52] Mr. Akbar’s criminal record, which includes 30 prior convictions, dates back to 1970 when he was 16 years old. Prior sexual offences include a conviction in 1973 for indecent assault and a 1988 conviction for making an obscene picture. There are two prior sexual assault convictions – one in 2002, for an offence committed in 2000, and another in 2005, for an offence committed in 2003. The latter conviction is the last entry on Mr. Akbar’s record prior to his conviction for the predicate offence. The only penitentiary term that Mr. Akbar has served was a three-year sentence imposed for robbery in 1983. The record in its entirety is set out below:

May 29, 1970 Poss. of housebreaking instruments Susp. sent. for 18 mo. + prob.

May 31, 1972 Poss. of narcotic $50 fine

August 16, 1972 Failure to comply with recognizance 1 day

May 24, 1973 Indecent assault on female 1 day, $100 fine + 3 yrs. prob

April 25, 1974 (1) Poss. of stolen property over $200 2 yrs. less 1 day on each (2) Poss. of stolen property under $200 charge, concurrent (3) Break, enter and theft

Feb. 8, 1978 Common assault $50 fine

March 15, 1979 (1) Theft over $200 (1) 2 mos. + 3 years prob. (2) Robbery with violence (2) 8 mos., consecutive

Dec. 20, 1982 Resist or obstruct peace officer Time served (1 mo.)

April 12, 1983 Robbery 3 years

January 16, 1985 Paroled

August 6, 1985 Assault 3 mos. + 3 yrs. prob.

August 9, 1985 Obstruct Justice 1 mo. + 3 yrs. prob.

Dec. 8, 1987 Drive “Over 80” $600 fine + 6 mo. driv. proh.

April 21, 1988 Making obscene picture (s. 159(1)(a)) 120 days

August 9, 1988 Assault 30 days + 3 yrs. prob.

May 5, 1988 Driving “Over 80” 1 mo.

Sept. 5, 1989 Escape lawful custody 1 mo.

Sept. 30, 1991 Assault 3 mos. + 2 yrs. prob.

July 8, 1993 (1) Impaired Driving 3 mos. on each charge, conc. (2) Attempt Obstruct Justice

Feb. 17, 1999 Assault Susp. sent. + 2 yrs. prob. + time served (12 days)

May 24, 2000 Assault with a weapon 1 day + time served (56 days) + s. 110 order for 5 yrs.

Feb. 1, 2001 Assault with a weapon 1 day + time served (63 days)

• s. 110 order for 10 yrs.

Nov. 14, 2001 Fail to comply with recognizance 30 days

Dec. 13, 2001 Fail to comply with prob. order Susp. sent. + 6 mos. prob.

June 6, 2002 Sexual assault 18 mo. conditional sent.

• time served (9 mo.)
• 3 yrs. prob. Note: varied on Crown appeal on Aug. 25/03 to 3 ½ months + s. 109 order

March 26, 2003 Assault 1 day + time served (52 days)

• 12 mos. prob. and s. 110 order for 5 yrs.

Dec. 12, 2005 (1) Assault causing bodily harm (1-2) Time served (21 mos.) + 3 yrs. prob. + s. 109 order (2) Sexual assault

CONVICTIONS FOR PRIOR SEXUAL OFFENCES

Indecent assault on female: May 24, 1973

[53] Mr. Akbar received a sentence of one day, a fine of $100, and a three-year probationary order with respect to this conviction. There was no documentation available regarding the facts of this offence.

[54] Mr. Akbar told Dr. Klassen that the incident took place in 1970, when he was 16 years old. He, another male, and two women were together and were “petting.” The complainant remained dressed and there was no penetration or oral-genital activity. Mr. Akbar told Dr. Klassen: “Next thing I knew [there was] police at my door.” The complainant was not a girlfriend but someone with whom he had previously partied. Her mother was concerned about her whereabouts and likely questioned her. Mr. Akbar was charged with “touching” the complainant. Neither alcohol nor drugs was involved. The complainant wanted sexual contact: “We were … fooling around.” She had told Mr. Akbar that she was 16 years old; she was actually only 14 but was well developed in terms of secondary sexual characteristics.

[55] Mr. Akbar told Dr. Klassen that he believed that he was charged in order to appease the complainant’s mother. He was found guilty after a trial.

Making obscene picture: April 21, 1988

[56] There was no information regarding the facts of this offence, for which Mr. Akbar received a sentence of 120 days. When asked by Dr. Klassen about this conviction, Mr. Akbar stated that he had taken pictures of his children in the bath. The photography shop called the police and he was charged. He denied ever having or attempting to have sexual relations with any children. He also stated that the photographs did not reveal the children’s genitals.

Sexual assault: April 5, 2002

[57] On April 5, 2002, Mr. Akbar was convicted of sexually assaulting G.R. He was sentenced on June 6, 2002. The offence date was November 9, 2000.

[58] In his reasons for judgment, Day J. described G.R. as developmentally handicapped. G.R., like the victim in the predicate offence, knew Mr. Akbar. Mr. Akbar had been helpful to G.R. by assisting her with household chores, shopping, sharing food and helping her find a place to live.

[59] On the day of the offence, G.R. had soiled her sweatpants, necessitating a change of clothing and a bath. Mr. Akbar assisted her in these matters and then told her to lie down on the bed. He began to apply lotion to her body and then attempted vaginal and anal intercourse. G.R. told him to stop. He persisted for a while but eventually stopped.

[60] Day J. concluded that a sentence of three years was appropriate. He credited Mr. Akbar with having served the equivalent of an 18-month sentence as a result of the nine months he had spent in pre-trial custody and imposed a further 18-month conditional sentence, plus three years’ probation.

[61] On August 25, 2003, the Court of Appeal allowed a Crown appeal from the conditional sentence. The court, in its endorsement, describes the offence as involving an attempt at intercourse on a developmentally handicapped woman. The court held that given the circumstances of the offence and Mr. Akbar’s lengthy criminal record, the conditional sentence was unreasonable. Since there was no delay by the Crown in proceeding with the appeal and since Mr. Akbar had not taken any steps to pursue his rehabilitation while on conditional sentence, the court found that it was not contrary to the interests of justice to impose a sentence of incarceration “at this time.” The court concluded: “We would not interfere with the original starting point of the trial judge in the circumstances. Accordingly, leave to appeal is granted and the sentence is varied to 3 ½ months incarceration from the date of surrender.”

[62] A report by the Ministry of Correctional Services, dated October 15, 2007, was prepared while Mr. Akbar was on probation and reporting to the Danforth Probation and Parole office. In that report, reference is made to comments by Mr. Akbar while he was serving the 3 ½ month custodial term. Mr. Akbar denied sexually assaulting G.R. and explained that he was simply rubbing medication for a rash on her buttocks and thighs. When he began to rub it on her genitalia, she complained that it hurt and asked him to stop, which he did. He denied attempting to have intercourse with G.R. or doing anything inappropriate.

[63] The report, under the heading “Current Assessment”, at page 6, states:

Despite lengthy criminal record, subject does not acknowledge the inappropriateness of his actions. He continues to deny his offence, blames victim and sees himself as a victim of the Criminal Justice System. Subject appears to have a pro-criminal attitude. This is supported by his continual pattern of reoffending and overall poor attitude towards his sentence/supervision.

[64] Mr. Akbar also denied to the author of the report any criminal responsibility for his 1973 indecent assault conviction. At page 8, the report states:

The subject was convicted of indecent assault in the past (1973) which he states didn’t occur. Rather, they were both teenagers and they did fool around (no intercourse) but her parent’s found out and pursued charges. He was also convicted of making obscene pictures in 1988. There are several assault convictions, property offences, impaired’s, robbery and an escape in this subject’s past. He has served federal time. He tried to control the interview and was quite manipulative. He stated that he has no intention of following probation conditions if the conditions don’t suit him. He states he already followed conditions when the sentence was conditional and he told me ‘straight up’ he wasn’t doing it again. When warned that breaches could bring him back into custody he stated that he didn’t care.

Assault bodily harm and sexual assault: December 2005

[65] Mr. Akbar pleaded guilty before Rivard J. on October 4, 2005 to assault causing bodily harm and the sexual assault of S.B. The offence dates were August 17 and 18, 2003. At that time, Mr. Akbar was still on probation for the sexual assault on G.R. and another assault conviction.

[66] As was the case in the predicate offence and the sexual assault on G.R., Mr. Akbar knew the victim S.B. They had initially met about 20 years earlier but became reacquainted in August 2003, after meeting again by happenstance. They became involved in a dating relationship.

[67] On August 17, 2003, which was S.B.’s 60th birthday, Mr. Akbar arranged a birthday dinner for her. They had been out bicycling that day before returning to Mr. Akbar’s apartment. Initially, the evening went well, with conversation during the preparation of dinner and during the meal.

[68] After cleaning up the dishes, S.B. decided to take a shower. When she came out of the bathroom, Mr. Akbar had turned on both televisions and was pacing around the apartment. He became unpleasant and was verbally abusive. As a result of his change in mood, S.B. decided to leave. However, Mr. Akbar would not let her go. He ordered her to stay and made her lie down on the bed with him. After a while, he fell asleep. At that point, S.B. got up, gathered her belongings and attempted to leave. Mr. Akbar woke up, became enraged at her for trying to leave and began to beat her, striking her in the head with his hands and fists.

[69] When S.B. reached for her cell phone, Mr. Akbar attempted to pry it from her hand. As he did so, S.B. felt something snap in her wrist. He then pulled her off the bed and threw her into the kitchen. When S.B. told him that the landlord could probably hear all the noise, Mr. Akbar stuffed a pillow in the vent and duct-taped it to muffle the sound. He then continued beating S.B. until she was nearly unconscious. He put her on the bed and forced intercourse on her. S.B. lost consciousness at this point.

[70] The following morning, S.B. awoke and again attempted to gather her belongings and leave. As she was looking for part of her cell phone, which had broken when he grabbed it earlier, Mr. Akbar awoke and accused S.B. of “snooping around.” He became quite upset.

[71] Mr. Akbar then noticed the bruises on S.B. and asked her what had happened. S.B. told him that he had caused the bruises. Mr. Akbar denied this and acted as though he had no idea how the injuries had been incurred. He asked S.B. to stay for breakfast. S.B., fearing further injury, complied. She was able to leave a short time later.

[72] S.B. received numerous blows to her head, arms and torso. The scaphoid bone in her wrist was broken. This injury caused severe pain and took several months to heal. S.B. was described as having “significant and livid bruising” all over her body, which also took some time to heal.

[73] Following Mr. Akbar’s guilty plea, Rivard J., with the consent of the defence, ordered a psychiatric assessment pursuant to s. 22 of the Mental Health Act, R.S.O. 1990, c. M.7. That assessment, which was prepared by Dr. De Freitas, is now an exhibit at this application.

[74] At the sentencing hearing on December 12, 2005, the Crown characterized Mr. Akbar’s refusal to return photographs that he had taken of the victim as “somewhat disturbing.”

[75] Prior to passing sentence, Rivard J. inquired of Mr. Akbar as to comments made by him to medical staff during the assessment process wherein he denied the conduct underlying the offences. Mr. Akbar confirmed to Rivard J. that he admitted the facts read in by the Crown at the time of his guilty plea.

[76] In his reasons for sentence, Rivard J. described S.B. as “disabled” and a vulnerable victim. After noting Mr. Akbar’s criminal record for violent offences and his persistence in that behaviour, Rivard J. stated, “[Mr. Akbar] obviously has a problem with alcohol and drugs as set out in the [assessment] report and as confirmed by some convictions in his record. I think it is doubtful, as a result of Mr. Akbar’s age, he can be rehabilitated and it appears he cannot be deterred from continuing to commit these offences.” He continued:

In the [assessment] report, Mr. Akbar is self-described as being manipulative. I think he describes himself well. He attempts to manipulate others. He attempted to manipulate this court by attempting to deny the conduct he engaged in. It is something that goes to his character or his lack of character, his lack of moral fibre, his lack of ability to comprehend that you do not go around assaulting people; you do not go around behaving the way he has behaved for years.

I view Mr. Akbar as a dangerous person, a person who is likely to reoffend. The report describes him as unco-operative, dismissive of the assessment process. The report indicates that, although he did not show evidence of a major mental disorder, he has a significant history of antisocial behaviour, demonstrates no remorse for his actions, no empathy for his victim and he is at high risk of reoffending in a violent way. He also has the likelihood of re-offending in sexual offences.

[77] Rivard J. stated that had it not been for the joint submission for time served – 21 months – he would have imposed a much lengthier sentence “for this despicable behaviour and for this individual who just doesn’t want to learn and doesn’t want to behave in a socially acceptable way.”

[78] At page 20 of his report, Dr. Klassen outlines Mr. Akbar’s version of events with respect to this offence. Mr. Akbar denied sexually assaulting S.B. but admitted that he threw her on the bed and removed the battery to her cell phone. He stated that both he and S.B. had consumed a small amount of alcohol.

OTHER CONVICTIONS ON MR. AKBAR’S CRIMINAL RECORD

[79] The following is a summary of the facts with respect to convictions on Mr. Akbar’s criminal record for non-sexual offences for which there is a synopsis of the allegations or about which Mr. Akbar has some recollection. Dr. Klassen sought Mr. Akbar’s input regarding all of his convictions.

Possession of house-breaking instruments: May 29, 1970

[80] Mr. Akbar told Dr. Klassen that he “got high one night on LSD” and decided to steal pants from a store with his cousin. He had a garbage bag and a screwdriver and was apprehended sitting on the roof of the shop. He committed this offence on a dare.

Possession of stolen property over $200, possession of stolen property under $200, and Break, enter and theft: April 25, 1974

[81] Mr. Akbar told Dr. Klassen that he had “no idea” what these convictions involved and stated that he was heavily into the use of MDMA, LSD, alcohol, and cannabis around this time. He did recall engaging in some break and enters with others while “high” and “on a dare.” He recalled stealing a coin collection and being apprehended while trying to sell the coins. He also stated that these convictions might involve his being arrested while driving a stolen vehicle that he knew was stolen.

Robbery with violence and theft over $200: March 15, 1979

[82] There was no synopsis available with respect to these offences. Mr. Akbar told Dr. Klassen that the incident took place at his home. He was about to take a bath when he heard a commotion. A friend had apparently been robbed and some money was missing. The friend then took a hammer and began, apparently in frustration, to destroy Mr. Akbar’s property. Mr. Akbar then beat him with the hammer. He did not, however, take any money from him. Mr. Akbar stated that he had been drinking but had not taken any drugs at the time.

Resist or obstruct peace officer: December 20, 1982

[83] Mr. Akbar presumed that he gave a false name to a police officer but could not really recall the substance of this conviction.

Robbery: April 12, 1983

[84] The synopsis indicates that on March 5, 1982, a woman that Mr. Akbar met offered to drive him home as he had no money for a taxi. He allegedly made sexual advances towards her and was told to leave the vehicle. There was a struggle, the woman screamed, and Mr. Akbar fled, taking her purse with him.

[85] Mr. Akbar’s version of events was that a young woman whom he had met in a bar gave him a ride after he had spent a good deal of money on her. She became lost while trying to drive him home and told him to get out of the car. She literally kicked him out of the vehicle. He fell into a slushy street and got angry. He grabbed her purse and removed $26 as he had spent $50 on her that evening. He later offered, both in person and over the telephone, to return the money but she nevertheless proceeded to charge him. Mr. Akbar told Dr. Klassen that this was “not even a robbery.”

Mr. Akbar received a three-year sentence for this offence.

Drive Over 80: December 8, 1987

[86] Mr. Akbar advised Dr. Klassen that he was drunk and fell asleep while driving his wife’s car. He struck the wall of an overpass.

Drive Over 80: May 5, 1988

[87] Mr. Akbar told Dr. Klassen that he was driving his wife’s car and did not have a driver’s licence at the time. He was caught driving the wrong way down a one-way street. He tried to flee the scene as he “wanted his freedom.”

Escape lawful custody: September 5, 1989

[88] Mr. Akbar told Dr. Klassen that he was taken to the Jewish General Hospital for management of symptoms that he acknowledged were somewhat exaggerated (asthma attack). He was not handcuffed and was therefore able to leave. His flight was impulsive and not planned.

Assault conviction: February 17, 1999

[89] The synopsis for this offence states that the victim, age 15, was the son of the woman that Mr. Akbar was engaged to marry and with whom he was living.

[90] On June 15, 1998, Mr. Akbar was at home with the victim, the victim’s 12-year-old sister and the sister’s friend. Mr. Akbar became involved in a verbal dispute with the victim’s sister in relation to house rules. He began to scream at her and threatened to ground her. The victim then intervened and told him that he had no right to discipline his sister as he was not their father.

[91] Mr. Akbar, who took exception to the victim’s interference, became very upset and told him that he better keep his mouth shut if he knew what was good for him. He then approached the victim and head-butted him on the forehead. The victim left the premise and contacted the police.

[92] Mr. Akbar told Dr. Klassen that the victim was much taller than Mr. Akbar and that he could not have head-butted him. He stated that he was not under the influence of any substances at the time.

Assault with a weapon: May 24, 2000

[93] The synopsis relating to this offence indicates that Mr. Akbar asked the victim if he could stay at the victim’s apartment for a while. The victim refused. Mr. Akbar left but later returned and began to bang on the victim’s door, demanding entry. When the victim opened the door, Mr. Akbar, who appeared to be intoxicated, brandished a knife. The victim, fearing for his life, slammed the door shut. Mr. Akbar then began to threaten the victim, yelling through the door that he was going to kill him. The victim called the police.

Assault conviction: March 26, 2003

[94] The synopsis for this offence indicates that the victim and Mr. Akbar had lived in a common-law relationship and that they had relocated to Toronto from Montreal in 1998. At the time of the assault, which took place on December 23, 2002, their relationship had ended and the victim was making arrangements to return Mr. Akbar’s property as he had moved out of the home. The victim received several telephone calls from Mr. Akbar, which she did not answer.

[95] At 8:15 p.m., as the victim was leaving her building, Mr. Akbar approached and insisted that she sit on a bench and talk to him. The victim refused to comply and made it clear that she did not want anything to do with him and that his frequent calls were not welcome. Mr. Akbar became angry, grabbed her by her coat and then slapped her across the face, striking her left cheek. The victim retreated, got on a streetcar and called the police. The victim did not suffer any injuries other than redness to her cheek.

[96] Mr. Akbar acknowledged to Dr. Klassen that he was angry. He stated that he had ended the relationship. The victim was upset and would not let him in. Someone called the police when he grabbed her coat or her arm to hold her in place.

FEDERAL INSTITUTIONAL RECORDS

Correctional Services Canada

[97] On April 12, 1983, Mr. Akbar received a three-year sentence for robbery, which is the only penitentiary term that he has served.

[98] Mr. Akbar was initially admitted to Dorchester Penitentiary in New Brunswick but was transferred in May 1983 to Springhill Institution in Nova Scotia. In December 1983, he was transferred to the Regional Reception Centre in Quebec. He later served time at Laval Institution.

Springhill Institution

[99] The CSC records indicate that Mr. Akbar was something of a trouble maker during his time at Springhill Institution. In June 1983, he instigated a racial dispute between inmates and was verbally abusive and threatening when officers attempted to place him in segregation. He told one officer, “You should pray I don’t get out of here because I am going to kill you.” He spat on another officer. Mr. Akbar received five days dissociation as a result of this incident.

[100] Later that same month, Mr. Akbar was given five days dissociation for flushing magazines and paper down the toilet in his cell. On June 23, 1983, the case management team recommended that he be transferred as a result of his threats to staff and his attempt to cause a racial disturbance in his unit. He was subsequently transferred to Dorchester Penitentiary.

Dorchester Penitentiary

[101] Mr. Akbar continued to cause problems at Dorchester Penitentiary. There were numerous requests from other inmates to have him removed from the range as he was threatening and divisive.

[102] A security report in September 1983 suggested that Mr. Akbar had a “shank” and was threatening inmates. Officers noted tension on the range. Mr. Akbar reportedly had received medication from the hospital for recreational as opposed to medicinal use. This allegation was confirmed and he was sentenced to three days dissociation for hoarding prescription drugs.

[103] A Progress Report in October 1983 notes that the case management staff did not support Mr. Akbar’s request for Escorted Temporary Absences because of his numerous institutional infractions and negative attitude. That same month, he was placed in segregation and given 15 days dissociation for insulting staff members over the course of four days. Other inmates requested that Mr. Akbar be removed from their range because he was a “shit-disturber.”

Regional Reception Centre

[104] At Mr. Akbar’s request, he was transferred to the Regional Reception Centre in Quebec, where his behavioural difficulties continued. In January 1984, he was given two days dissociation for refusing to follow the commands of CSC staff.

Leclerc Institution

[105] Mr. Akbar continued to accumulate institutional infractions for his behaviour towards CSC staff after being transferred to Leclerc Institution. In April of 1984, he was sentenced to five days loss of privileges for his aggressive attitude towards staff. A community assessment completed that same month noted that Mr. Akbar’s behaviour was not markedly different from his behaviour in Dorchester and Springhill. In June of 1984, he was issued a warning with respect to his behaviour.

Laval Institution

[106] Mr. Akbar continued to be disruptive, aggressive and confrontational with CSC staff while serving his sentence at Laval Institution.

[107] In July 1985, Mr. Akbar was warned about his behaviour. In August, he was sentenced to two days of loss of privileges for holding up the closure of the range by refusing to close his cell door. In September, he was placed in segregation for having a brewing apparatus in his cell, which he had constructed from a plastic container taken from the kitchen. In October, he was given two days of loss of privileges for reporting late for work. In November, he was reported for not getting up for work. In December 1985, he was given five nights of “dead lock” for failing to get up for work.

FEDERAL PAROLE

[108] Mr. Akbar was granted both day parole and full parole with respect to his three-year sentence. Day parole was granted twice a month for a 48-hour period commencing in June 1984, which Mr. Akbar completed without incident.

[109] On January 16, 1985, Mr. Akbar was granted full parole. On April 11, 1985, his parole was suspended when he committed an assault. He was admitted to Laval Institution. On June 7, 1985, the Parole Board revoked his parole, based in part on “behaviour incompatible with parole conditions.” The Board’s decision was affirmed by the Appeal Committee.

[110] Mr. Akbar was released again on February 18, 1986, and remained on parole until the completion of his sentence on July 15, 1986.

PROVINCIAL INSTITUTIONAL RECORDS

[111] In addition to the three-year sentence imposed for robbery, Mr. Akbar has been sentenced to the equivalent of more than eight years in custody. This calculation includes enhanced credit given for time spent in pre-trial custody but does not take into account the periods of time that Mr. Akbar spent in pre-trial custody for offences that did not result in a finding of guilt.

[112] Mr. Akbar has incurred a number of misconducts while in provincial institutions, which the Crown summarized as follows in her factum.

[113] In June 1994, while in custody at the Toronto East Detention Centre, Mr. Akbar was placed in segregation for yelling at a corrections officer and approaching him in a threatening manner. In August 1994, Mr. Akbar was found to be argumentative and aggressive with other inmates. He was alleged to have assaulted his mentally challenged cell mate and there was a report that he had attempted to sell medication. A search of his cell resulted in the seizure of medication that was not his, as well as other contraband.

[114] On May 15, 2001, Mr. Akbar was removed from his cell at the Toronto Jail and relocated to another cell as a result of his belligerent attitude towards some staff members. Other inmates expressed relief at Mr. Akbar’s removal, describing him, among other things, as a troublemaker.

[115] On November 3, 2001, Mr. Akbar, while out of custody, called out to a female corrections officer while she was attending a coffee shop adjacent to the Toronto Jail. When the officer turned to face Mr. Akbar, he took a photograph of her.

[116] On August 16, 2002, while in custody at the Toronto East Detention Centre, Mr. Akbar asked a female parole officer to provide her full name and inquired about her motor vehicle. He then provided descriptions of both of the vehicles she had driven to work that week. The parole officer reported this incident to her supervisor as she was unsettled by the fact that Mr. Akbar knew this information.

[117] In November 2002, Mr. Akbar was removed from his cell at the Toronto East Detention Centre and placed in segregation after assaulting another inmate.

[118] On September 20 and 21, 2003, while in custody at the Central North Correctional Centre, Mr. Akbar engaged in inappropriate behaviour towards a female nurse. He asked her if he could have her phone number and take her on a date. The following day, the nurse found a note which read, “Hi Lorraine XO.” The nurse reported the incident to her supervisor.

[119] In the fall of 2003, while at the Central North Correctional Centre, Mr. Akbar was described as argumentative and aggressive with staff.

[120] On January 22, 2005, Mr. Akbar was placed in segregation for threatening other inmates at the Central North Correctional Centre. He was deemed unsuitable for an “open range” due to what staff described as his “manipulative tendencies.” On February 22, 2005, he was place in segregation over allegations that he had threatened to stab another inmate.

[121] On August 5, 2005, while in custody at the Toronto Jail, Mr. Akbar was alleged to have assaulted his cell mate.

[122] On April 29, 2010, while at the Toronto Jail, Mr. Akbar was placed in administrative hold as it was determined that he was “unable to cope on any [protective custody] unit.” On July 13, 2010, he was again placed in administrative hold as it was found that he “cannot function” with other inmates.

[123] On August 15, 2010, while in custody at the Toronto West Detention Centre, Mr. Akbar wrote “transfer me” and “help” in his blood on the wall and door of his cell. On September 1, 2010, while being transferred from one cell to another, he attacked a corrections officer and was sentenced to five days loss of privileges. He was already in segregation at the time.

[124] On October 12, 2010, while in custody at the Toronto Jail, Mr. Akbar delivered the following note to a female correctional officer: “Whenever I see you nearby I have to fight back the urge to just grab & hold of you and give you big kisses and squeeze you so tight!” Mr. Akbar was advised that the note was inappropriate and received a misconduct for his actions.

[125] On September 1, 2011, while in custody at the Maplehurst Correctional Centre, Mr. Akbar was sentenced to a five-day loss of privileges and five days of close confinement for threatening another inmate. On October 4, 2011, he was sentenced to one week of loss of privileges for being in possession of contraband after he was found hoarding medication in his cell. On November 20, 2011, he was sentenced to five days of close confinement for threatening to assault his cell mate. The occurrence report noted that Mr. Akbar used intimidating tactics every time he was required to share a cell with another inmate.

[126] Significantly, there have been no reported misconducts by Mr. Akbar since November 20, 2011, or for a period of over two-and-a-half years.

PROBATION SUPERVISION

[127] Mr. Akbar has been the subject of twelve probation orders, five of which were in Ontario. He was convicted of breach of probation in December 2001. As noted earlier, at the time that Mr. Akbar committed the sexual assault on S.B. in August 2003, he was the subject of two probation orders – one in connection with the sexual assault on G.R. and the other as a result of his conviction for assault on March 26, 2002.

[128] Mr. Akbar completed the three-year probationary term imposed by Rivard J. on December 12, 2005, without incident. There is more than a five-year gap between his release from custody on that day and his commission of the predicate offence on March 8, 2011, although Mr. Akbar spent six months of this “gap” period in custody with respect to offences for which he was ultimately discharged at a preliminary hearing. The gap, therefore, is actually four years and nine months.

[129] Two probation officers who supervised Mr. Akbar while he was on probation – Mark Nikolic and Winston Wong – testified at this hearing.

Testimony and Reports of Mark Nikolic

[130] Mr. Nikolic’s first period of supervising Mr. Akbar ran from June 2002 to August 2004. He also supervised Mr. Akbar from June to November of 2008.

First Period of Supervision

[131] On June 6, 2002, Mr. Akbar received an 18-month conditional sentence, plus three years’ probation for sexually assaulting G.R. He was also required to complete 80 hours of community service. As stated earlier, on August 25, 2003, the Court of Appeal allowed a Crown appeal from the conditional sentence and imposed 3 ½ months incarceration. Mr. Nikolic supervised Mr. Akbar during both the conditional sentence and the initial period of probation.

[132] Mr. Nikolic met Mr. Akbar for the first time on June 13, 2002, and reviewed with him the terms of the conditional sentence and probation orders.

[133] Mr. Nikolic described Mr. Akbar as reasonably compliant but somewhat erratic in his reporting – he would sometimes come late or attend at the office when Mr. Nikolic was not there. He did, however, keep Mr. Nikolic informed of his various addresses. As far as Mr. Nikolic was aware, Mr. Akbar was never homeless but moved from place to place quite frequently. He never seemed settled and was only intermittently employed. He reported as required to the Sex Offender Registry.

[134] Mr. Nikolic’s efforts to supervise Mr. Akbar were hampered by Mr. Akbar’s arrest on new charges. Mr. Akbar was arrested on July 12, 2002 and released on December 2, 2002, after the charges were dismissed. He was also in custody from February 5, 2003 to March 26, 2003, with respect to an assault charge, for which he received a sentence of one day plus time served (52 days) and 12 months’ probation. On September 4, 2003, Mr. Akbar was re-incarcerated as a result of the Crown’s successful sentence appeal. He was released on November 13, 2003, and resumed reporting to Mr. Nikolic pursuant to the probation order.

[135] In an assessment report dated July 8, 2003 [the Level of Service Inventory – Ontario Revision or “LSI-OR”], Mr. Nikolic noted that Mr. Akbar, while incarcerated, had been held in a range reserved for inmates with mental health issues. Although there was no indication that Mr. Akbar suffered from a mental illness, Mr. Nikolic was of the view that this matter required further scrutiny. He also expressed concern about Mr. Akbar’s lack of friends and supports within the community, although Mr. Akbar did attend mosque several times each day. Mr. Nikolic suggested that learning more about Mr. Akbar’s involvement in Islam could provide better insight into possible support systems.

[136] There were no terms requiring Mr. Akbar to take treatment for alcohol abuse and/or sexual offending. Mr. Nikolic testified, however, that even if there had been such a term, convincing Mr. Akbar about the importance of treatment would have been difficult, given his refusal to acknowledge his criminal behaviour. Mr. Akbar expressed bitterness about his involvement in the criminal justice system and felt that he had been unjustly persecuted.

[137] Mr. Nikolic testified that he avoided raising the “volatile” subject of the offence with Mr. Akbar because of Mr. Akbar’s adamant denial of criminal responsibility. Mr. Nikolic never saw any indication of remorse on Mr. Akbar’s part. He testified that he felt he “failed” Mr. Akbar as he was never able to get him to see that his behaviour was problematic. Mr. Akbar would not have been accepted into any treatment programs because of his denials that he had committed the offence. Mr. Nikolic testified that there are now group programs for deniers, but participants must still be engaged and prepared to see their offences in a new light. Had Mr. Akbar not been a denier, Mr. Nikolic would have encouraged him to participate in a sex offender treatment program.

[138] Mr. Nikolic had no recollection of referring Mr. Akbar for community service. However, on April 23, 2003, the duty probation officer, George Armstrong, noted that Mr. Akbar had called, reported that he had contacted his Community Service Supervisor at the Salvation Army, and stated that he would be commencing his community service as soon as possible. There appears to be no documentation as to whether or not Mr. Akbar completed his 80 hours of community service. I note that he was never charged with breaching that term of his probation.

[139] On January 20, 2004, Mr. Akbar was arrested for the sexual assault of S.B. on August 17 and 18, 2003, and remained in custody until December 12, 2005. Mr. Nikolic’s supervision of Mr. Akbar ended in August 2004, at which time supervision was transferred to Winston Wong. In a probation case note dated March 19, 2004, Mr. Nikolic commented that Mr. Akbar’s arrests and incarcerations made the process of referring him for counselling a “non-starter.”

Second Period of Supervision

[140] Mr. Nikolic also supervised Mr. Akbar for the last five months of the three-year probation order imposed by Rivard J. on December 12, 2005, following his convictions for sexually assaulting S.B. and causing her bodily harm.

[141] Mr. Nikolic first met with Mr. Akbar regarding this probation order on July 9, 2008, at which time Mr. Akbar denied having committed these offences. At a meeting on September 18, 2008, he told Mr. Nikolic that he planned to appeal the sentence, despite the fact that he had been convicted years earlier. Mr. Akbar’s last reporting date was on November 17, 2008, when he spoke to Mr. Nikolic on the telephone.

[142] One of the terms of probation required Mr. Akbar to take such counselling for alcohol abuse as may be recommended by his probation officer. Mr. Akbar was not in any counselling programs when Mr. Nikolic took over supervision of the case. He noted, however, that Mr. Akbar was experiencing a number of health problems that would have made any heavy drinking difficult for him. Mr. Nikolic never discussed alcohol counselling with Mr. Akbar or referred him to a treatment program.

[143] In terms of treatment programs for sexual offending, Mr. Nikolic explained that four months was insufficient time for him to arrange counselling on an individual basis, which was what Mr. Akbar would have required. Mr. Akbar was not a suitable candidate for group counselling as he would have been a disruptive influence.

[144] Mr. Akbar continued to deny any responsibility for these offences and portrayed himself as a victim. In his closing summary prepared on February 4, 2009, Mr. Nikolic concluded that there was a high probability that Mr. Akbar would re-offend, given his denials and lengthy criminal history. Other risk factors included his lack of stability and support in the community, and the absence of any treatment or counselling.

Testimony and Reports of Winston Wong

[145] Winston Wong supervised Mr. Akbar from the time of his release from custody on December 12, 2005, until May 12, 2008, a period of about two-and-a-half years. Mr. Wong described Mr. Akbar’s reporting as good: he only failed to report on two out of 36 reporting dates, and on those two occasions called to re-schedule the appointments.

[146] Mr. Wong testified that it was challenging to engage Mr. Akbar and keep track of events in his life because he was only required to report once a month, as opposed to reporting “as directed” by his probation officer. At one point, Mr. Akbar had no fixed address. He changed residences frequently and sometimes used the shelter system. He did not have stable employment but worked on and off with his brother in the renovation business. Mr. Akbar reported that he was active in the local mosque. He had some issues with his health.

[147] Mr. Wong described Mr. Akbar as polite and respectful during his meetings with him. From the outset, however, Mr. Akbar denied having committed the offences against S.B. He blamed the victim and refused to admit that he had a problem with alcohol. He maintained this position until the expiry of the probation order. He would not talk at all about the offences or those matters that brought him into conflict with the law. He never indicated that he wanted or needed help.

[148] Although Mr. Akbar was required to take treatment for alcohol abuse as may be recommended by his probation officer, Mr. Wong never made such a recommendation. He explained that he felt there was no point in recommending treatment, given Mr. Akbar’s insistence that he did not have a drinking problem: Mr. Akbar would have “gotten in the door” of a treatment program recommended by Mr. Wong, but would have been promptly discharged when he refused to admit to having a problem. In hindsight, Mr. Wong testified that he wished that he had insisted that Mr. Akbar had taken treatment.

[149] Mr. Wong testified that during the time that he was supervising Mr. Akbar, he was not aware of any group programs for offenders who deny that they have an alcohol problem. Such programs, however, are currently available.

[150] In the LSI-OR that Mr. Wong completed in October 2007, he classified Mr. Akbar as at a high risk to re-offend.

PSYCHIATRIC/PSYCHOLOGICAL EVIDENCE

Records from time spent in federal custody

[151] The only penitentiary sentence that Mr. Akbar has served was the three-year term imposed in 1983 for robbery. A psychiatric report dated August 24, 1983, diagnosed Mr. Akbar as having “character disorder with paranoid features in an inmate who is extremely anxious.” Mr. Akbar was apparently worried about being transferred to Dorchester Institution, which is a maximum security facility.

[152] In a progress report dated August 30, 1983, Mr. Akbar was noted as having had an earlier substance abuse problem but that it appeared to have abated. It was suggested that he could benefit from a type of confrontive therapy used at the Portage Program but Mr. Akbar refused to consider said treatment.

Records from the Ontario Shores Centre for Mental Health

[153] As stated earlier, following Mr. Akbar’s guilty plea on October 4, 2005, to sexually assaulting S.B., Rivard J. ordered a psychiatric assessment, which was conducted at the Ontario Shores Centre for Mental Health (“Ontario Shores”). Mr. Akbar arrived there on October 18, 2005, but was discharged early, on November 4, 2005, due to his behaviour. Dr. Karen De Freitas, a forensic psychiatrist, prepared the assessment report.

[154] In a Clinical Record dated October 18, 2005, it was noted that Mr. Akbar denied any history of psychiatric illness. He described his mood to an assessing clinician as “pissed” about having pleaded guilty and stated that he had only done so in return for a promise of “time served.” He denied having committed the offences.

[155] In a Social Work Record, Mr. Akbar is noted as describing himself as a “womanizer” and stated that he did not need to “force himself” on others. In a later interview, he described himself as a manipulative person. He also stated that he was in custody not because he was a “rapist” but because he had “fornicated.”

[156] The clinical notes from Ontario Shores contain examples of Mr. Akbar’s aggressive, confrontational and “limit-testing” behaviour with staff and other patients, as well as instances in which Mr. Akbar engaged in inappropriate and sexually suggestive acts. Mr. Akbar repeatedly denied responsibility for the offences to which he had pleaded guilty. For example, during an interview on October 18, 2005, he stated that S.B. had consented to sexual intercourse and that the police had forced her to lie about the incident because he was a black male having sex with a white female.

[157] Mr. Akbar was described as being “vulgar” during a neurological assessment consultation on October 19, 2005. He described in great detail his sexual relationship with S.B., recounted sexual comments allegedly uttered by her during intercourse, and at one point began “grinding up and down.” Mr. Akbar told the interviewer that “it was always consensual sex” with the victim.

[158] A clinical note dated October 26, 2005, describes an incident in which Mr. Akbar had a dispute with staff, during the course of which he stated, “Oh, believe me … you guys don’t ever want to see me get agitated…You couldn’t handle it.” He also threatened staff, stating, “I could murder everyone here if I wanted to … You couldn’t stop me.”

[159] Following Mr. Akbar’s discharge from Ontario Shores on November 4, 2005, staff located two pairs of women’s underwear in his room.

[160] In a Psychosocial Assessment and Discharge Summary, dated November 25, 2005, Ms. Nancy Burns summarized Mr. Akbar’s behaviour while at Ontario Shores as follows:

From the onset of his admission he presented as argumentative, demanding, intrusive and uncooperative. While he agreed to meet this writer to complete the psychosocial assessment, he responded to questions in a vague and evasive manner and was frequently sarcastic… He did not appear willing or able to accept responsibility for his actions. He frequently complained about being victimized by others, especially authority figures, throughout the course of his life.

[161] In the final note entered in Mr. Akbar’s clinical record, Dr. De Freitas explained the reasons for his early discharge from Ontario Shores:

Mr. Akbar was challenging to staff from the very beginning. He was quite demanding of staff and ward routine. He was not treated with any psychiatric medications as it was not felt that he required any at the time. Towards the end of his admission, he was noted to be inciting other patients into getting into altercations with each other. He would accept no responsibility for this behaviour and refused to stop this behaviour. He was also uncooperative with the assessment. He refused to speak to the psychologist or undergo any psychological testing, even though this was a crucial part of the presentence assessment. Based on his difficult behaviour with staff, his inciting of other patients and his refusal to cooperate with the assessment, he was discharged back to jail on November 4, 2005.

[162] In her assessment, Dr. De Freitas diagnosed Mr. Akbar with Polysubstance Use Disorder. She also stated that it was likely that Mr. Akbar suffered from a Personality Disorder with Narcissistic and Antisocial Traits. She concluded that there was no evidence to suggest that Mr. Akbar suffered from a major mental disorder.

[163] Based on the results of the risk prediction instruments used to assess Mr. Akbar, the observations made of him at the facility, and the information provided by Mr. Akbar himself, Dr. De Freitas determined that he posed a high risk of both violent and sexual recidivism.

[164] Dr. De Freitas suggested that Mr. Akbar could potentially benefit from a substance abuse treatment program and a sexual offender program. However, she pointed out that if Mr. Akbar’s attitude, lack of motivation and unwillingness to participate in the assessment process continued, his chances of success in any such program would be “slim.”

Testimony and Reports of Dr. Angus McDonald

[165] Following his arrest for the predicate offence, that is, sexually assaulting H.D. on March 8, 2011, an order was made for an assessment of Mr. Akbar’s fitness to stand trial. Mr. Akbar himself insisted on seeing a psychiatrist and asked for the assessment, as he thought that he may be suffering from a mental illness.

[166] Pursuant to the order, Dr. McDonald, a staff psychiatrist at the Centre for Addiction and Mental Health (“CAMH”), interviewed Mr. Akbar on April 13 and 27, 2011. These interviews, each of which was about two hours in length, form the basis of Dr. McDonald’s reports, dated April 13 and May 9, 2011. The reports were made exhibits at this hearing. Dr. McDonald also testified as a Crown witness.

The April 13, 2011 Report

[167] In his April 13 report and during his testimony, Dr. McDonald indicated that he had minimal material to corroborate the information provided to him by Mr. Akbar, which was, in any case, substantially contradictory. Under the heading “Psychiatric History-Identification” at page 2 of the report, Dr. McDonald states:

Mr. Akbar is a 57 year-old man, born and raised in Nova Scotia who by his own account has had behavioural difficulties since early childhood and innumerable conflicts with the law. He was reluctant to acknowledge that he might have been guilty of any of the convictions on his record, although he was highly contradictory about this. He ultimately indicated having completed Grade 11 in school, or having only gotten as far as Grade 8, not completing the year. He further indicated having a reasonable academic history, while later stating that he had been in special education classes all his life. He was quite preoccupied with the idea of appealing any, or all of his past convictions and presented himself as a victim, rather than any kind of perpetrator.

[168] Dr. McDonald noted that Mr. Akbar was contradictory in the extreme with respect to his employment history. At page 3 of his report, he stated:

I have no confidence that any of the history he gave me about his work history may be realistic or verifiable. …

Perhaps more relevant than his work history, which is unverifiable and minimal, is his penitentiary records. None of these are available to me; however, he indicated having spent time in Dorchester, Springhill, LeClerc, Archembeau, LeValle, Waterloo, Bordeaux, and St. Vincent DePaul. He acknowledged having been in trouble in many of these institutions, if not all. When asked about conflicts with peers, or misconducts, he indicated that these were frequent. He even reported having been told that he might someday be a candidate for a dangerous offender application and stated with perplexity, ‘What are they talking about? … I never did anything serious.’

Despite having a number of convictions for sexual offences, as well as a number of sexual offences for which no conviction was registered, Mr. Akbar denied having any inappropriate sexual urges, or having ever committed an offence in this area of life. In fact, he stated with a degree of pride, ‘I love women and they love me … hundreds … I have no trouble getting sex.’

[169] Under the heading “Criminal History”, Dr. McDonald stated that Mr. Akbar denied any recollection of most of his criminal convictions and suggested that he was repeatedly falsely convicted “by malicious evil doers for reasons unclear. He repeatedly stated his intention to appeal virtually all of the convictions on his record, insisting that they were not valid and that his life had been seriously negatively impacted on by false charges.” Dr. McDonald testified that Mr. Akbar appeared angry and raised his voice when speaking about his wrongful convictions. He accused everyone in the criminal justice system, including his own lawyers, of treating him unfairly.

[170] Under the heading “Substance Abuse History” on page 4 of his report, Dr. McDonald stated:

Mr. Akbar apparently began using street drugs very early in life and indulged frequently and in large quantity. By his own account, there was nothing he didn’t try in the way of street drugs, but he did not seem to regard this as a particular problem. After repeatedly indicating incidents where alcohol contributed to his extensive arrest record, he insisted that he did not have a problem with alcohol: ‘I have a problem with depression, not alcohol.’ Yet he continued to elaborate that he drank heavily in response to depression and reiterated his frequent, if not regular claims of suicidal thoughts before summarizing with his stated intent to commit suicide if he were convicted of the charges outstanding at this time.

Despite his claims of having been in multiple penitentiaries for up to 6 years at a time, he denied that he was ever referred to a sex offender treatment program, insisting that he would have no need for this and would not consider cooperating because any convictions he had in this regard are false. He claimed at times to have been tricked into pleading guilty, thinking the outcome would be less severe than it turned out to be when he re-attended in court.

[171] Dr. McDonald found that although Mr. Akbar’s personal veracity was questionable, there was no evidence of any thought disorder, hallucinations, delusions or any overt psychotic symptoms. He did not appear to be suffering from a major mental illness. Dr. McDonald concluded that Mr. Akbar was fit to stand trial. He noted, however, that Mr. Akbar’s “level of insight appears extremely limited” and “his judgment can be extraordinarily poor at times” (page 4). Dr. McDonald also stated, “It is clear that he has problems with impulse control and judgment” (page 5).

[172] Under the heading, “Diagnosis”, Dr. McDonald stated his findings as follows:

1. Antisocial Personality Disorder;

2. Poly-substance abuse and alcoholism; and

3. Paraphilias, NOS [“not otherwise specified”].

The diagnosis for this man would appear to be that of a personality disorder [to a] rather extreme degree, as well as an aggravating history of poly-substance abuse, including very large amounts of virtually every drug known to man. Further, he consumes extremely heavy amounts of alcohol. Such use would obviously impact negatively on his already chronically poor judgment. Currently, this man does not seem to be a candidate for psychiatric treatment. He does not acknowledge any problem with his sexual behaviour, despite his established criminal record. The likelihood of any benefit from referral to a substance abuse program seems very remote.

The May 9, 2011 Report

[173] Following the interview on April 13, 2011, Dr. McDonald was able to contact Mr. Akbar’s 74 year-old mother in Nova Scotia. Although Dr. McDonald did not regard her as the best historian, she did provide him with some further information regarding her son.

[174] Dr. McDonald re-interviewed Mr. Akbar on April 27. Mr. Akbar was angrier and more sarcastic during this interview and accused Dr. McDonald of deliberately including wrong information in his first report. It was clear that as a result of that report, Mr. Akbar did not “like” Dr. McDonald, who acknowledged that the feeling was mutual. However, Dr. McDonald testified that he is trained to be objective and that any negative feelings that he may have had towards Mr. Akbar would have had minimal impact on his report or his conclusions.

[175] Mr. Akbar refused to provide Dr. McDonald with any further information regarding his background and was highly dismissive of the criminal justice system. He re-asserted that he had never received a fair trial and repeated his intention to appeal all his convictions.

[176] Dr. McDonald indicated that Mr. Akbar, when asked about any involvement in a sexual offenders treatment program while in custody, became quite indignant, “insisting again that all the ladies love him and he has unlimited access to willing sexual partners.” At page 6 of his report, Dr. McDonald states, “He sees himself as the victim, has an intense anger about those he feels have systematically abused him in the past, including by fabricating charges and evidence against him, and seemed to have difficulty containing his emotion when expressing his anger about his perceived victimization by others.”

[177] Dr. McDonald testified that the second interview confirmed his view that Mr. Akbar had no insight into his criminal behaviour. Although acknowledging that he had used “many drugs on many occasions and in almost every form available”, and despite the fact that the predicate offence occurred during a bout of heavy drinking, Mr. Akbar denied that he had a substance abuse problem and had no interest in taking any relevant treatment programs. In cross-examination, Dr. McDonald acknowledged that the information regarding “a bout of heavy drinking” in connection with the predicate offence came from Mr. Akbar himself.

[178] Dr. McDonald opined that psychiatric treatment was not likely to be effective in Mr. Akbar’s case.

[179] Dr. McDonald did not conduct any psychological testing of Mr. Akbar. However, at page 6 of his report, he states:

With respect to the specific issue of risk evaluation, one hardly needs much beyond [Mr. Akbar’s] criminal record and current attitudes to know that his risk of future problems with the law is likely considerable, perhaps inevitable.

[180] Under “Diagnosis” at page 7, Dr. McDonald concluded as follows:

As before, Mr. Akbar appears to have a severe antisocial personality disorder, almost certainly reaching the level of psychopathy. He has an aggravating problem of poly-substance abuse and alcoholism. He does not show any evidence of psychosis. This man also very likely has one or more problems under the category of paraphilias.

[181] I note that Dr. Klassen concluded that Mr. Akbar did not suffer from any paraphilias. Mr. Akbar’s phallometric test results were negative for sexual coercion, which indicates that violence is not sexually arousing to Mr. Akbar.

[182] Dr. McDonald confirmed in his second report that Mr. Akbar was fit to stand trial.

[183] In cross-examination, Dr. McDonald agreed that Mr. Akbar “did seem a bit histrionic” or may have had a tendency to exaggerate; for example, although he told Dr. McDonald that he had spent the last 30 years of his life in custody, his criminal record indicates that the correct number would be six or seven years; he referred to his having received a six-year sentence when, in fact, the longest sentence he has received is three years; and the list of jails in which he indicated he had served time is very long and perhaps not entirely accurate. Dr. McDonald could not recall whether Mr. Akbar pointed out to him that there was a five-year gap between his last criminal conviction and the commission of the predicate offence.

[184] In cross-examination, Dr. McDonald agreed that Mr. Akbar may have identified depression as his “real” or main problem (referring to page 4 of the April 13, 2011 report) because that is what causes him to drink. Mr. Akbar never attempted to minimize his consumption of alcohol and, in fact, admitted to consuming extremely large amounts of it.

[185] Dr. McDonald could not recall whether Mr. Akbar, in discussing the predicate offence, mentioned that he had walked by CAMH and thought about going in. He testified that he would have noted such a comment if Mr. Akbar had expressed a deep interest in taking treatment. His failure to record it (assuming that Mr. Akbar made the comment) may simply indicate that he did not take it seriously.

[186] Dr. McDonald testified that blood tests can be conducted to monitor whether an individual has ingested drugs and/or alcohol. He stated that Antabuse and Temposil are very seldom prescribed to alcoholics because of potentially serious side effects. In addition, studies have shown that taking Antabuse does not necessarily deter a heavy or experienced drinker from consuming alcohol.

Testimony and Assessment Report of Dr. Philip Klassen

[187] Dr. Klassen’s interviews of Mr. Akbar took place more than one-and-a-half years after those conducted by Dr. McDonald. Mr. Akbar’s interactions with Dr. Klassen were strikingly different from his interactions with Dr. McDonald in terms of his tone and attitude. Dr. Klassen testified that Mr. Akbar co-operated fully with the assessment process. He signed all the consent forms presented to him, answered all of Dr. Klassen’s questions over the course of six hours of interviews, and agreed to undergo phallometric testing. He also consented to have Dr. Klassen contact his former partners and girlfriends, as well as his sister, Ms. Perkins.

[188] Dr. Klassen described Mr. Akbar as somewhat of a raconteur. At times Mr. Akbar was “expansive” but he did not exhibit to Dr. Klassen the “defensive grandiosity” observed by Dr. McDonald or Dr. De Freitas. It is apparent that Dr. Klassen developed a good rapport with Mr. Akbar, whom he described as “vigorous, animated, forceful, intelligent, verbal … and very engaged in the process.” Mr. Akbar scored 100 on an IQ test, which Dr. Klassen viewed as surprisingly high, given his lack of formal education. His intelligence falls in the average to high average range.

[189] When Dr. Klassen asked Mr. Akbar to describe himself, Mr. Akbar stated, “I’m a mental and emotional wreck”, adding that he is “borderline crazy.” He stated that he is sure that he is ill, but does not know with what, and that he has never really received a diagnosis. Dr. Klassen did not get the impression that these comments were made by Mr. Akbar in a soul-searching or tormented way but were part of a general overview of why Mr. Akbar believed that he committed offences: he was, in essence, stating that “there must be something wrong with me.” When asked why he engaged in crime, Mr. Akbar responded that he was “easily led … trying to fit in with the wrong people.” He felt that he was not good enough for straight people, ascribing his break-and-enters and car thefts to low self-esteem. He tearfully told Dr. Klassen that he would like to apologize to the many people that he has hurt, including his parents and ex-girlfriends. He stated that he could not accept their goodness and that he mistrusted them.

[190] Dr. Klassen testified that he did not get the sense that Mr. Akbar’s apology was an attempt to manipulate. He noted, however, that in other parts of the interview, Mr. Akbar consistently denied and minimized his criminal behaviour. Dr. Klassen postulated that given what Mr. Akbar went through in his early years, including living in a dysfunctional family and being verbally and physical abused, he does not want to show vulnerability or a negative side to his character, and does not really want to open up. Thus, although Mr. Akbar expressed regret at the outset of the interview about the things he has done, he did not manifest that kind of remorse when it came to discussing particular victims and particular crimes. The exception was with respect to the predicate offence, where Mr. Akbar told the court prior to sentencing that he wished to apologize personally to H.R. and was sorry for what he had done.

Attention Deficit Hyperactivity Disorder

[191] Dr. Klassen noted that there is a good deal of information missing with respect to Mr. Akbar’s early behavioural difficulties that might shed light on the drivers of those difficulties. Child welfare records or juvenile criminal/custodial records may have been helpful in this regard. Dr. Klassen observed that both Mr. Akbar and Ms. Perkins indicated that he was seen by a female doctor, Dr. Weiss, at the Montreal Children’s Hospital when he was a child. Dr. Klassen noted that Dr. Gabriella Weiss has been one of Canada’s foremost experts in ADHD. Dr. Klassen concluded that given the fact that Mr. Akbar was seen by Dr. Weiss and treated with medication, it is likely that he was diagnosed with ADHD at that time. This diagnosis is consistent with Mr. Akbar’s behavioural difficulties at school and his impulsivity and behavioural difficulties as an adult. Mr. Akbar also likely struggled at school due to emotional problems flowing from family-of-origin issues.

[192] Dr. Klassen was of the view that Mr. Akbar may still suffer from ADHD.

Correctional Records

[193] Dr. Klassen testified that records from custodial institutions may be important from the perspective of treatment and manageability. He noted that Mr. Akbar’s time in federal custody was “quite stormy” and there were multiple conflicts with both the authorities and other inmates. He cautioned, however, that the federal records are 30 years old. Dr. Klassen would give more weight to Mr. Akbar’s more recent records, including his interactions with probation officers.

[194] Dr. Klassen noted that the provincial correctional records indicate that Mr. Akbar was disruptive, threatening, bullying and manipulative while in custody, which also describes his behaviour at Ontario Shores in 2005. While on probation, Mr. Akbar continued to maintain his innocence and minimize his responsibility. He has re-offended while on probation. However, Dr. Klassen also observed that although Mr. Akbar’s relationships with authority figures have often been conflicted, Dr. Klassen encountered no difficulties whatsoever with him during the interview process. Mr. Akbar was entirely co-operative.

[195] Dr. Klassen noted that according to Mr. Akbar’s reports, which were corroborated by his sister, he did not engage in serious antisocial behaviour as a child or adolescent, rather it was the persistence of his antisocial behaviour that gave rise to intervention. Dr. Klassen went on to observe that in some respects, this is similar to his adult history, especially with regard to his time in custody and on probation. Mr. Akbar’s criminal history has been marked more by persistence than serious violence, although there are obvious exceptions, such as the sexual assault on S.B. Mr. Akbar’s history of conduct-disordered behaviour would certainly be sufficient to meet the diagnostic criteria for this disorder, but he does not present with many conduct-disordered behaviours greater than those necessary to reach the diagnostic threshold – truancy, theft, defiance, and vandalism.

[196] In his report, at page 31, Dr. Klassen states that Mr. Akbar’s history of persistent defiance, autonomy drive, and rejection of authority, along with his substance abuse problems, are consistent with a childhood and adolescent history of trauma and ADHD, as are anger, self-esteem problems, and feelings of unworthiness, impulsivity and mistrust (likely contributing to the need for control).

Possibility that Mr. Akbar suffers from bipolar disorder

[197] At page 31 of his report, Dr. Klassen states that it is possible Mr. Akbar suffers from a bipolar disorder, given his reported periods of what appear to be significant depression and periods of particular activation. Dr. Klassen also noted that Mr. Akbar has a strong family history of mood disorder. He wrote: “I can’t entirely rule out the possibility that he suffers from bipolar disorder, but on balance I would ascribe his activation to personality factors, possible remaining symptoms of ADHD, and, at times, stimulant intoxication (given that he has a significant history of stimulant use, perhaps including in custody).”

[198] Dr. Klassen noted that Mr. Akbar was incarcerated in provincial institutions in Quebec during the mid-1980’s and 90’s. The provincial files from that period are written in French, which Dr. Klassen does not read. Hence, he only reviewed the files from 1994 to 2010, which were in English. Dr. Klassen testified that Mr. Akbar certainly demonstrated behaviour issues during that period. He continued:

I think the unexplained piece is, I mean, … today, the one thing that always haunts me in these kinds of situations is does a person have a major mental illness that I’m missing and that’s why I thought about bipolar disorder because, man, you don’t want to miss that. That’s very treatable, and there is some very unusual behaviour described in some of those early corrections reports in the 1990’s. I just, from him and his sister and from other sources, could not make a diagnosis of bipolar disorder, but I don’t have a great explanation for some of the odd behaviour described in custody, unless, perhaps, it is substance related.

[199] Dr. Klassen testified that one of the key features of making a diagnosis of bipolar disorder is that the episodes of acceleration and grandiosity are sustained. That feature appears to be missing in Mr. Akbar’s case. For example, the notes from Ontario Shores indicate that Mr. Akbar would have a few days or just a day or an hour of agitation, grandiosity, dismissiveness and sexual inappropriateness and then nothing remarkable for the next four or five days. He would sleep well, be pleasant and not cause any trouble. Thus, on balance, Dr. Klassen was of the view that Mr. Akbar does not have bipolar disorder. He re-iterated, however, that he would “hate to miss something like that”, that it is possible that it has been missed, and that he would gladly revisit the issue if any new information came to light.

Anger Management Issues

[200] Mr. Akbar acknowledged to Dr. Klassen that he has problems with his temper and indicated a willingness to take an anger management treatment program, which is something he has not previously taken. It does not appear that such a program has been offered or suggested to him in the past.

Phallometric Testing

[201] Dr. Klassen described Mr. Akbar as participating well in the phallometric testing. Mr. Akbar made no attempt to manipulate the results.

[202] Mr. Akbar’s test for sexual coercion was negative. There was no evidence that violence is sexually arousing to Mr. Akbar.

[203] Dr. Klassen concluded that Mr. Akbar does not suffer from a paraphilic or sexual behaviour disorder. He opined that Mr. Akbar has engaged in aggressive, non-consensual, and self-serving sexual behaviour largely as a result of his personality – he has a history of problematic values and attitudes with respect to females, and a history of impulsive, egocentric behaviour. Dr. Klassen was of the view that Mr. Akbar is more impulsive than premeditated.

Antisocial Personality Disorder and Substance Abuse Disorder

[204] Dr. Klassen diagnosed Mr. Akbar as suffering from a severe personality disorder, specifically antisocial personality disorder with narcissistic personality traits, as well as a severe substance abuse problem. He also likely suffers from ADHD.

[205] Dr. Klassen explained “personality disorder” at page 32 in his report as follows:

Personality traits are characteristic ways of interacting with one’s environment. When personality traits are maladaptive and inflexible, and give rise to difficulties with social or occupational function, as a result of problems with affectivity, interpersonal relations, cognitive style, or impulse control, then personality disorders are said to exist. Personality disorders tend to become evident by late adolescence or early adulthood, and are generally sustained thereafter, albeit with some attenuation of more dramatic personality traits toward middle and late age. The course of the symptoms of a personality disorder may be exacerbated by psychosocial stress, an unstructured living situation, alcohol or substance abuse, and non-adherence with psychiatric or psychological treatment. The mainstay of psychiatric treatment for individuals suffering from a personality disorder, where this is possible, tends to fall within the psychological, rather than the pharmacological, domain albeit pharmacotherapy may at times be used in an adjuvant fashion, targeting comorbid emotional or behavioural difficulties.

[206] According to the DSM-IV-TR, an individual may be diagnosed as suffering from antisocial personality disorder when there is a pervasive pattern of disregard for, and violation of, the rights of others, as indicated by three or more of the following factors: [Dr. Klassen noted beside each factor whether Mr. Akbar met that particular criterion.]

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

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

• Impulsivity or a failure to plan ahead [met]

• Irritability and aggressiveness [not clearly met]

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

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

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

[207] Dr. Klassen testified that individuals with antisocial personality disorder are generally considered to be untreatable. The focus is, therefore, on modifying the individual’s behaviour as opposed to treating the disorder.

[208] Dr. Klassen testified that 80 percent of individuals with a personality disorder also have a substance abuse problem, which typically exacerbates their underlying problems with values, attitudes, and impulsivity. The combination of antisociality and substance abuse often results in a criminal record like that of Mr. Akbar in the sense that it contains a variety of different offences.

[209] Mr. Akbar told Dr. Klassen that in recent years, he has used alcohol more sporadically, albeit in a binge fashion. Dr. Klassen opined that Mr. Akbar likely meets the criteria for alcohol abuse disorder but may not meet the criteria for alcohol dependence. Mr. Akbar also meets the criteria for cocaine abuse disorder, currently in remission in a controlled setting. Although Mr. Akbar has a history of using numerous substances, including significant doses of prescribed opioids, it appears that his use of alcohol and cocaine have been the most problematic.

[210] Dr. Klassen testified that alcohol has likely played a significant role in Mr. Akbar’s aggressive behaviour. If Mr. Akbar were able to abstain from alcohol consumption, his risk of re-offending would be substantially reduced. Dr. Klassen noted that Mr. Akbar was under the influence of alcohol when he committed several different personal injury-type offences – the two robberies, an assault with a weapon and two sexual assaults, including the predicate offence. The sexual assault on H.D. took place after Mr. Akbar had consumed an extremely large amount of alcohol.

[211] In terms of Mr. Akbar’s level of aggression while under the influence of alcohol, Dr. Klassen agreed that although the sexual assault on H.D. may have caused her psychological trauma, she did not suffer any physical injury: “This would not be an offence that I would say would rank on the very high end of the spectrum in terms of objective severity of the sexual assault.”

[212] Dr. Klassen did not get the sense that Mr. Akbar felt he had a serious alcohol problem. At one point, Mr. Akbar indicated that he felt he could safely return to alcohol use, which Dr. Klassen found “somewhat worrisome.” When Dr. Klassen asked Mr. Akbar if he was amenable to taking treatment for alcohol abuse, Mr. Akbar stated “no.” He did not specifically canvas with Mr. Akbar whether he would be willing to take Antabuse.

[213] Dr. Klassen was unaware that Mr. Akbar has been attending both Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”) meetings while in pre-trial custody. Mr. Akbar acknowledged to the court that he had a problem with prescription drugs at the time that he sexually assaulted H.D.

[214] Dr. Klassen testified that Mr. Akbar displayed some narcissistic personality traits in that he exhibited a degree of grandiosity or cockiness, or a confidence in his own opinion. Such traits are very common in antisocial individuals and may militate against their wanting or accepting treatment. Dr. Klassen noted, however, that Mr. Akbar acknowledged that he has a problem with anger and has indicated a willingness to receive anger management treatment.

[215] Dr. Klassen testified that if Mr. Akbar were to receive a penitentiary term, he would likely be slated for treatment programs with respect to anger management, substance abuse and sex offending. The federal correctional system offers comprehensive and high-intensity treatment programs in all these areas. The programs, which take a relapse-prevention approach, involve 300 to 500 hours of treatment, as opposed to the provincial correctional system, where programs may offer only 80 hours of treatment.

[216] Dr. Klassen testified that the challenge in treating Mr. Akbar will be to get him to be less reflexively defensive about his behaviour – a characteristic stemming perhaps from the problematic relationship he had with his family and the fact that he was used as a scapegoat as a child. As a result, whenever Mr. Akbar has been questioned by authority figures, such as probation officers, correctional officers or the staff at Ontario Shores, he has immediately gotten very defensive and blamed the victim, stating that he was innocent, he was set up etc.

[217] In terms of potential treatment outcomes, Dr. Klassen stated:

You know, a lot of people start treatment with denial and minimization and some people wind up doing better and … ultimately are able to take more responsibility, and others don’t. I think really one of the key things also to look for in treatment (unfortunately we don’t really have that much of a treatment history of Mr. Akbar) is to look for just the quality of the relationship with people. … I would hope that at the very least, even if [Mr. Akbar] doesn’t incorporate the treatment concepts, that … you could get to a place where there is less anti-authority sentiment. I mean, that way you could have a better conversation because if he’s ever going to be monitored in the community, he’s going to need to be able to actually have a conversation with an authority figure that’s not hostile.

[218] Dr. Klassen testified that the early stages of treatment typically address denial and minimization by an offender of his criminal behaviour.

[219] Given the fact that Mr. Akbar has lived an anti-social lifestyle for such a long time, Dr. Klassen did not “get the sense that [he] is an ideal treatment candidate.” Mr. Akbar’s PCL-R score of 32 suggests “pretty entrenched anti-sociality” and is a negative prognostic factor in terms of treatment outcome. As a result, Dr. Klassen was of the view that decisions about release should not rely on anticipated treatment response but should be based on built-in external controls and aging.

Risk Assessment

i) The PCL-R

[220] Dr. Klassen scored Mr. Akbar at 32 out of a possible score of 40 on the PCL-R. This score places Mr. Akbar in approximately the 91st percentile – that is, out of 100 randomly selected offenders, 91 would have lower scores than Mr. Akbar. Dr. Klassen testified that he scored conservatively and that Mr. Akbar’s score could possibly be as high as 35 if additional materials had been made available.

[221] Dr. Klassen described 32 as a “high score” that suggests significant difficulties with criminality, community supervision and treatment responsiveness. Such a score puts Mr. Akbar in the category of “psychopath”, although Dr. Klassen avoids using that term as he regards it as somewhat inflammatory. Individuals who reach a level of psychopathy are unlikely to change on their own or with treatment. As a result, Mr. Akbar will need to be managed using external controls.

[222] Dr. Klassen explained that “external controls” can include a lot of different things. It can mean, for example, conducting urine tests rather than relying on Mr. Akbar’s word that he is not using cocaine or alcohol. It may include a requirement that he live in a community correctional facility rather than his own apartment. It may also include prescribing medications to reduce a sex-offender’s sex drive.

ii) The Sexual Offender Risk Appraisal Guide (SORAG)

[223] The SORAG is a 14-item assessment tool for the assessment of sexual or violent recidivism. Mr. Akbar’s score of 33 is very high, in part because he has a lot of crime on his record.

[224] A score of 33 places Mr. Akbar somewhere between the 98th and 99th percentile, with respect to the reference or standardization sample. As Dr. Klassen explained in his report:

Put another way, with respect to percentile scores, this gentleman has a higher score (and thus probability of recidivism) than 98 to 99 % of randomly selected individuals from the standardization sample. Similar-scoring individuals recidivated violently or sexually at rates of 100 % over 10 years opportunity in the community.

[225] Dr. Klassen pointed out one caveat regarding the SORAG; namely, that the standardization sample used was very small. There were fewer than ten people in the original group, but they all recidivated violently or sexually. He also pointed out that the SORAG, unlike the STATIC-99R, makes no adjustment for an anticipated age-at-release date of greater than 60.

iii) The STATIC-99R

[226] The STATIC-99R is a ten-item instrument that was created in Canada and is probably the most widely used sex-offender risk assessment tool in the world. It looks at a variety of factors, including personal, demographic, general criminal and sexualogical variables, types of victims, and the number of sexual and non-sexual convictions.

[227] Mr. Akbar scored 4 on the STATIC-99R, which Dr. Klassen described as a moderate to moderately high score. At a score of 4, Mr. Akbar is at approximately twice the risk for sexual offending of the “average” sex offender. A score of 4 places Mr. Akbar in the 80th percentile with respect to the standardization samples. Similar scoring individuals recidivated violently or sexually at a rate of approximately 40 percent over 10 years opportunity in the community; looking at sexual recidivism alone, they recidivated at rates of 25 to 30 percent over ten years in the community.

[228] Dr. Klassen attributed the “disconnect” between the SORAG and STATIC-99R in terms of both the percentile scores and probability estimates to three factors. First, different instruments, using differing reference or standardization samples, may generate different results. Secondly, the STATIC-99R uses convictions as the dependent variable, whereas the SORAG uses charges or convictions. Finally, as noted above, the STATIC-99R adjusts for an age-at-release-date of greater than 60, whereas the SORAG adjusts only for age 39 or over. Dr. Klassen suggests in his report that Mr. Akbar’s high score on the SORAG likely reflects his high risk for general violent recidivism, as opposed to sexual recidivism.

[229] Prior to turning 60 on January 1, 2014, Mr. Akbar’s score on the STATIC-99R would have been 6, which is a significantly higher score than 4. Dr. Klassen agreed that Mr. Akbar’s risk would not have declined overnight as a result of his sixtieth birthday. He went on to explain, however, the statistical significance of that age, in terms of group data:

What it means is all the people between 40 and 60, in comparison with all the offenders released after the age of 60 – like up to 80. There’s a significant difference in follow-up studies in those risk groups. … Of course, this is group data. I happily acknowledge that we don’t have a way of saying where Mr. Akbar falls within that group. I cannot tell you that. What I can say is, for example, the STATIC says that Mr. Akbar, after the age of 60, has a 40 percent probability of violent or sexual recidivism, let’s say, but I can’t tell you if he’s in the 40 percent or the 60 percent group. Nobody can. … We can only offer the probability.

[230] When asked to take into account his clinical evaluation of Mr. Akbar, along with the group data, Dr. Klassen stated:

[W]e have done studies looking at thousands of offenders, in fact, sometimes some of the graphs from those studies have been introduced as exhibits at DO proceedings that I’ve been involved in showing that risk declines with age. Now, what is unusual is that [Mr Akbar] committed a new sexual offence at the age of 57, because at that point, his risk would have been, according to the group norms, very low for a sexual offence against an adult female, so in that respect, [he] is unusual. … this is the first man in his 50’s of all the patients that I’ve seen, whether as part of a s. 753 proceeding or otherwise,… that was convicted of a new sexual offence against an adult female at that age.

[231] Crown counsel asked Dr. Klassen whether, in his opinion, Mr. Akbar was “burning out.” After indicating that he preferred to use the terminology “age-related decline and propensity for offending” rather than the term “burnout”, Dr. Klassen testified as follows:

[If] we had a line with a slope to it that showed average decline in risk for offending with age, that line is an average and some people are going to be above the line, a higher risk, and some people below the line, a lower risk. They’re all going to show some decline, but they don’t all sit on the line. So some people might have a risk that goes, over the years, from 80 percent to 60 percent to 40 percent and other people, on the same line, will go 20 percent to 10 percent to 5 percent. I don’t think Mr. Akbar is going to be immune from age-related decline and propensity for re-offence. Indeed, he has an eight year offence-free interval, which I think is probably reflective of some age-related decline and propensity. I think what is true is that Mr. Akbar is probably, risk-wise, from our tools, he’s above the average of that line and therefore, while he is declining, he’s got, for lack of a better way of putting it, I guess, a little farther to go.

Q. Okay, and given that he has this offence-free interval, granted some of the period of time he is incarcerated so I think there is about a five-year period really where he is out in the community, and then given that he commits another sexual offence at 57 and scores as he does on … the actuarial tests, can you comment on how that might affect where he is on that line and how long it might take before, you know, he would not be a danger?

A. It’s an excellent question. And I want to be very careful and conservative about trying to answer that. You know, for a lot of other folks, because sexually offending against an adult female is almost unheard of after 60, I would have said, “What are you talking about? This gentleman is almost 60. We don’t even need to go through this exercise.” I think in Mr. Akbar’s case, though, because there is a new sexual offence against an adult female at 57, what it tells me is, I think it’s still a live issue … I think he will, as I’ve indicated in the report, continue to show age-related decline and propensity, but whereas normally I would say, “you’ve got to be kidding. This gentleman is 60. We don’t need to think about offending against adult females in the community”, in this case, obviously, that’s not true and we do need to employ the tools and we need to employ risk management strategies. What it means to me is that, for whatever reason, this gentleman is more vigorous, more motivated, I suppose, to offend than the average 57-year-old person with a sex offence history. Again, sometimes you see that when people have a major mental illness. This is why I worry a little bit about the possibility of a major mental illness in the background, because that can convey a degree of vigor, mania, that you might not see in a non-manic person. So, I guess, to wrap it up, I would say I would still suspect this man to see age-related decline and propensity for offending, but for now, he needs to be managed as a person at significant risk of sexual re-offence for a period of time that takes us to the end of the ability of the tools to predict.

Q. Okay, which would be?

A. At the outside, 70 years of age. The number of offenders in the data sets beyond age 70 are so small that you really shouldn’t use these tools … The more data points you have, the more confident you can be in your data. … The number of sexual offenders against adult females in those data sets of these tools after age 70 are so tiny, you shouldn’t trust them and, indeed, the literature, for example, Karl Hanson, the author of the STATIC 99 says, “Don’t go there after age 70” and I would agree. We don’t have enough data. We don’t know enough about what happens because there just aren’t that many people. So, I limit my comments to the period of time between 60 and 70.

[232] Dr. Klassen testified that in Karl Hanson’s large data set of rapists, there were no rapists in the 60 to 70 age group.

iv) The VRAG

[233] Dr. Klassen noted that there is considerable overlap between the VRAG and the SORAG. However, the VRAG, unlike the SORAG, has been shown to predict risk of domestic, non-sexual violence. It was therefore an appropriate actuarial instrument to use in this case, as Mr. Akbar has a history of “domestic issues.”

[234] Mr. Akbar scored 17 on the VRAG, which places him at the 89th percentile. Individuals with similar scores recidivated violently at a rate of 64 percent over 10 years.

v) The HCR-20

[235] The HCR-20 is a structured tool that appraises overall risk of violent recidivism. It consists of 20 items, each of which may be scored 0, 1, or 2, thus rendering a total score on a continuum of 0 to 40 points. The HCR-20 does not have an age-at-release item.

[236] Mr. Akbar scored 33 on the HCR-20. While percentile scores are not available for the HCR-20, in a seven-and-a-half year follow-up of federal correctional offenders in Canada, individuals in this range recidivated violently at rates of 93 percent.

[237] Dr. Klassen concluded that Mr. Akbar appears to be at a moderate to moderately high risk of domestic violence, and a relatively high risk of general violent recidivism.

Caveats regarding Risk Appraisal

[238] Dr. Klassen testified that there are two caveats to bear in mind with respect to risk appraisal.

[239] The first caveat is that base rates of violence have declined in Canada over the past several decades. Accordingly, the probability estimates of the SORAG, VRAG, and HCR-20 likely represent overestimates, albeit modest overestimates, in terms of probability of violence and/or sexual recidivism. New probability-estimates with respect to the VRAG and SORAG are expected but have not as yet been released. The probability estimates of the STATIC-99R are likely more accurate, as these have been updated more recently.

[240] The second caveat is that, as mentioned above, there is some uncertainty regarding some items on these appraisal tools due to issues with the data set or size of the standardization sample.

[241] Dr. Klassen testified that even taking into account that the SORAG, VRAG, and HCR-20 are overestimates, Mr. Akbar would still be at a very substantial risk today to reoffend. Even at the age of 70, his risk to reoffend would be 40 percent at a minimum. After the age of 70, the risk would be very difficult to determine because of the small number of offenders in the data set beyond 70.

[242] Following his review of Mr. Akbar’s scores on the actuarial instruments, Dr. Klassen was questioned further with respect to age-related decline and propensity for offending. He again noted that the STATIC-99R takes into account certain age “bands”, such as 40 to 60 year-olds, and those over 60. Mr. Akbar is “right at 60” but is being compared to the whole group of 40 to 60 year-olds, and then the whole group of 60 plus. Dr. Klassen continued:

His risk in the immediate future is probably halfway between those two. It’s probably lower than the high numbers offered by the … SORAG and VRAG and the HCR, but it’s probably higher than the lower number offered by the STATIC because he’s only just turning 60, so he’s probably – you’d have to appreciate this is clinical, not empirical – but I’m saying he’s probably lower than 100, but higher than 40 in terms of his age … The over-60 group benefits from the low recidivism rates of the 70-year-olds and the 75-year-olds to lower it, and the under 60-group, ‘benefits’ from the higher recidivism rates of the 40-year-olds. He’s at 60 right now, so he’s probably less risk than the high scores and more risk than the low scores.

[243] Dr. Klassen testified that the fact that Mr. Akbar committed sexual assaults at the ages of 46, 49 and 57 is unusual and speculated that “maybe he will defy the statistics, so to speak, … not in terms of decline – I still think there will be decline – but maybe he is going to be an outlier in terms of … what actual level of risk he poses with age.” However, he continued, “At the end of the day, … it’s important for me not to speculate too much. We have the tools; they say what they say. Once I move away from the tools, things get kind of shaky.”

Criteria for Dangerous Offender/Long-term Offender Designation

[244] Dr. Klassen, at page 39 of his report, opined that given the density of Mr. Akbar’s criminal record, the persistence of his risk factors, and his failure to engage in any risk-mitigating strategies, Mr. Akbar, from a psychiatric perspective, has shown indifference to the reasonable foreseeable consequences of his behaviour. Mr. Akbar also meets, from a psychiatric perspective, the probability criteria for a dangerous offender. In his report, he states that Mr. Akbar “probably presents with a likelihood of future serious (violent and/or sexual) recidivism at this time.” He went on to state, however, that “given his age, and given the results of the actuarial instruments, it’s not clear to me that this gentleman presents with a likelihood of sexual recidivism alone.”

[245] Dr. Klassen explained that if offences such as sexual assault, domestic violence, and assault with a weapon are bundled together as a package, the actuarial instruments indicate that there is a likelihood that Mr. Akbar will reoffend over the next 10 years. However, the STATIC -99R indicates that the likelihood is about 40 percent with respect to any violent offence and 30 percent or so for a sexual offence. Thus, Dr. Klassen concluded that he “cannot say there is a likelihood of another sexual offence if we identified that category as separate from any of the personal injury offences that he might … commit in the future.” He continued:

Today, there is a probability, I suspect, but we know that in about four months, over the decade that follows, the STATIC will say that on average, over that decade, he is not likely to commit a new sexual offence.

Risk Management (treatment)

[246] Dr. Klassen explained that dynamic or criminogenic variables are those variables that are felt to be at least theoretically changeable and proximal antecedents to offending behaviour. Accordingly, these are the variables that tend to be targeted for treatment and/or supervision.

[247] According to Dr. Klassen, the dynamic variables that are most salient in Mr. Akbar’s case include:

• A significant antisocial character structure, albeit also informed by residua of trauma (e.g. emotional dysregulation) and hyperactivity (e.g. impulsivity);

• Lack of education, work, and social skills;

• Residential, geographic, and relationship instability;

• Lack of pro-social avocational interests;

• Problematic peer associations, including with intimate partners;

• Persistent defiance and anti-authority sentiment leading to difficulties with supervision; and

• Serious substance abuse problems and lack of insight and/or motivation to engage in self-change.

[248] Dr. Klassen reiterated that there is no known effective treatment for antisocial personality disorder. However, Mr. Akbar may benefit from structured and relatively intense anger management treatment. Studies have shown that outcomes correlate with the intensity and duration of such treatment.

[249] It was apparent to Dr. Klassen that Mr. Akbar needs significant and intensive substance-related treatment. He recommended that alcohol-related chemotherapy, including pharmacological agents that act as a deterrent to alcohol consumption, and/or reduce cravings should be considered. Antabuse is still available from compounding pharmacies. Dr. Klassen did not share Dr. McDonald’s concerns regarding the side effects of Antabuse, describing them as “a bit of a problem but not a huge problem.” Dr. Klassen testified that “the biggest problem is that people don’t want to take it because they want to drink.” He was of the view that it would be useful for Mr. Akbar to consider taking Antabuse, although he never specifically asked him if he would be willing to take the drug. If Mr. Akbar were in a community correctional centre (“CCC”) such as Keele Centre, his use of Antabuse could be closely monitored. Dr. Klassen acknowledged that Mr. Akbar could not be forced to take the drug.

[250] Dr. Klassen testified that Mr. Akbar should likely receive sex offender treatment programming. There would likely be considerable overlap between the sex offender treatment and the anger-related treatment, as both employ a relapse prevention approach.

[251] Dr. Klassen testified that Mr. Akbar may also benefit from psycho-educational treatment and pharmacological treatment with respect to residual ADHD. Although the use of medication should be approached with caution, studies have suggested that individuals with a history of ADHD who are prescribed stimulants, do better in psychosocial programming.

[252] Dr. Klassen was of the view that Mr. Akbar is in great need of stability, including relationship, geographic and residential stability. He needs a greater degree of structure to his day, and to avoid problematic peer associations, although in recent years he has largely been a loner in the community. Providing the necessary stability could be challenging, given Mr. Akbar’s nonconformist interpersonal dynamic.

[253] In cross-examination, it was suggested to Dr. Klassen that providing Mr. Akbar with stable housing might alleviate some of his issues. Dr. Klassen agreed that stable housing usually has a positive effect on mental health outcomes, but given Mr. Akbar’s many underlying issues, it would be a mistake to focus on housing this early on in treatment.

[254] With respect to an LTSO, Dr. Klassen testified that although Mr. Akbar is at a substantial risk to reoffend, there will likely be a significant decline in his propensity for violent or sexual recidivism over the next ten years for age-related reasons.

[255] Dr. Klassen noted that Mr. Akbar has not been subject to significant treatment interventions in the past. Although he had a problematic course in federal custody many years ago, he has not experienced the benefits of federal incarceration (treatment programming) or stringent community supervision for quite some time. Mr. Akbar’s relatively significant offence-free interval, latterly, is consistent with age-related decline in regard to likelihood of re-offence.

[256] Dr. Klassen concluded that “given the absence of intensive treatment, and the absence of intensive supervision (at least since his parole and mandatory supervision in the 1980’s), it’s not clear to me that I can reject the notion of ‘reasonable possibility of eventual control of the risk in the community’, albeit over the next number of years this gentleman’s course, on LTSO, could be quite tumultuous.”

[257] In his report at page 41, Dr. Klassen states:

I appreciate that this gentleman has already served a significant period of time in custody, and it’s not clear to me what length of fixed sentence he might receive in relation to his offending. From a purely psychiatric perspective, taking into account protection of the public, and also the issue of rehabilitation, this matter might be best served by a period of further federal incarceration (and thus treatment programming), followed by a Long Term Supervision Order.

[258] Dr. Klassen testified that the period of time that he had in mind was in the range of five to ten years imprisonment. He cautioned that given Mr. Akbar’s difficulties in the past with other inmates and authority figures, he could “end up doing a DO on the installment plan” if released into a CCC too soon.

PROGRAMMING IN FEDERAL AND PROVINCIAL INSTITUTIONS AND RESOURCES AVAILABLE IN THE COMMUNITY

[259] The Crown called evidence regarding the programs available in federal and provincial institutions, as well as the resources available to supervise offenders and manage risk in the community.

Testimony of Elizabeth Vitek

[260] Ms. Vitek, who is employed by CSC as the Area Director of the Downtown Toronto Parole/Women’s Supervision Unit, explained the various treatment programs in the federal penitentiary system, parole elegibility and the supervision of offenders who are subject to LTSO’s.

[261] Ms. Vitek reviewed the intake process and the steps taken to develop a correctional plan for an offender entering the penitentiary with a dangerous offender designation. The focus of the initial assessment, which is completed at Joyceville Institution over a three-month period, is to develop an individualized plan that will assist in the offender’s rehabilitation and reintegration back into the community.

[262] The federal penitentiary system offers programs to address the needs of offenders, including treatment for alcohol abuse and sexual offenders. These programs also attempt to reach out to offenders who deny their crimes or refuse to acknowledge alcohol abuse.

[263] Ms. Vitek described the programs as intense and lengthy – about five to six months in duration. A sentence of four to five years would be a realistic time frame in order for a co-operative offender to be properly assessed on in-take, complete three intensive programs, have final reports written and a release plan prepared. The minimum time required for an offender to complete three intensive programs would be two years.

[264] Parole eligibility for a dangerous offender serving a determinate sentence is as follows:

Supervised day parole after completion of one-sixth of the sentence;

Full parole after completion of one-third of the sentence;

Statutory release at two-thirds of the sentence; or

Warrant expiry after serving the full sentence.

[265] Parole eligibility for a dangerous offender serving an indeterminate sentence is as follows:

Full parole after seven years from the date of arrest; or

If denied parole at the seven-year mark, the offender’s elegibility for parole is considered thereafter every two years.

[266] Ms. Vitek testified that a dangerous offender who receives a five-year determinate sentence and who refuses to participate in any programs must still be released on the warrant expiry date. He would then be released into the community on an LTSO, essentially untreated. On the other hand, if an offender is declared a dangerous offender and given an indeterminate sentence, he is eligible for parole seven years after his arrest date. It would then be up to the Parole Board to determine if the offender has completed programming that has reduced his risk to re-offend. If it is determined that he has, then the offender might be granted parole. Ms. Vitek testified that the number of dangerous offenders who receive an indeterminate sentence and who are granted parole is very small. Of the few who are paroled, the average time served before being paroled is 12 years from the date of arrest.

[267] Ms. Vitek pointed out that the LTSO portion of a sentence declaring an offender a dangerous offender or long-term offender is managed or supervised by CSC, regardless of whether the determinate sentence is served in the penitentiary or the reformatory. When the jail portion of the sentence is served in the reformatory, it is difficult for CSC to follow the offender and do the necessary case preparation for the LTSO. This becomes even more problematic when the reformatory sentence is very short. In these situations, CSC’s ability to put in place a proper release plan is compromised.

Residential Conditions on a LTSO

[268] Ms. Vitek testified that a residential condition is usually part of a release plan for dangerous or long-term offenders. There are two types of residential facilities – CCC’s and Community Residential Facilities (“CRF’s”).

[269] There are three CCC’s in Ontario. The Keele Correctional Centre in Toronto has 40 beds. Two or three residents share a room in a communal-living type of situation. Staff members are on site 24 hours a day, seven days a week. Correctional officers are present during the day; a commissionaire is present at night.

[270] Ms. Vitek testified that although offenders are supervised fairly rigorously and may be subject to strict conditions, a CCC is not intended to create a jail-like setting; rather, the CCC is meant to be a short term measure that bridges the gap between jail and the offender living alone in the community.

[271] Residential conditions are reviewed every 180 days. Theoretically, an offender could reside at a CCC for 10 years. Ms. Vitek was aware of cases in which offenders have stayed at a CCC for as long as five years. However, she testified that this length of time speaks to the fact that those offenders were not ready to be released into the community because their risk was not yet manageable. In these situations, the CCC is, in effect, serving as a jail, which is not its intended purpose.

[272] Ms. Vitek testified that being placed in a CCC is the most rigorous form of release available in the community.

[273] CRF’s are privately run half-way houses that are on contract to Corrections Canada. They are minimum security and are not intended for offenders who are considered to be at high risk of re-offending. Unlike a CCC, a CRF can refuse to take an offender based on his charges.

Consequences of Breaching a Term of an LTSO

[274] Ms. Vitek explained that if a dangerous offender serving an indeterminate sentence is released by the Parole Board under an LTSO and then breaches a term of that order, he is re-incarcerated. By contrast, if a dangerous offender serving a determinate sentence breaches a term of his LTSO, he can be suspended and taken into custody for a period of up to 90 days. If an information under the Criminal Code is not laid within that time frame, the offender must be released back into the community under the LTSO before the expiration of 90 days.

[275] The maximum sentence under s. 753.3 (1) of the Code for failing to comply with a term of an LTSO is ten years.

[276] Ms. Vitek testified that the Parole Board would rarely, if ever, order an offender, as part of an LTSO, to take medication for a particular problem, such as alcohol abuse, since an offender cannot be forced to take drugs without his or her consent. However, the Board may order an offender to follow the recommendations of his or her psychiatrist or health care professional. If the psychiatrist recommends medication that the offender subsequently refuses to take, then the offender could be suspended for breaching his LTSO. Ms. Vitek was aware of cases in which offenders have been charged under s. 753.3 (1) in these circumstances.

Testimony of Rhonda Frank

[277] Rhonda Frank is employed by the Ministry of Community Safety and Correctional Services and currently acts as the Deputy Superintendent of Programs at the Maplehurst Correctional Complex in Milton. Ms. Frank explained the treatment programs available in the provincial reformatory system.

Programming and Treatment in a Standard Correctional Centre

[278] Ms. Frank testified that programs available in correctional centres are limited and participation is strictly voluntary. An inmate cannot be forced to engage in treatment or counselling. Unlike the federal system, refusal to participate in programming does not have a significant impact on parole decisions and would have no consequences in terms of the length of the custodial period ultimately served by the offender. Failure to engage in treatment or programming has no effect on an offender’s earned remission.

[279] In reviewing Mr. Akbar’s file, Ms. Frank found no record of his having requested treatment or his having taken any treatment programs.

[280] When an offender is sentenced to a reformatory term, an assessment is completed by a classification officer, who determines the appropriate facility where the offender should serve his or her sentence. There is no provincial equivalent to the comprehensive correctional plan created for offenders serving a sentence in a federal penitentiary.

[281] Ms. Frank testified that sexual offender treatment programming is difficult to facilitate in a standard provincial correctional setting because of security concerns for those convicted of sexual offences. In addition, programming is extremely limited and sometimes impossible to arrange for those in protective custody or segregation. I note that Mr. Akbar, for the most part, has been in protective custody while awaiting trial. He has also spent several months in segregation.

Specialized Treatment Facilities

[282] Ms. Frank testified that there are three provincial correctional facilities in Ontario that offer specialized treatment for offenders serving a reformatory sentence: Algoma Treatment Centre and Remand Facility (“Algoma”); the St. Lawrence Valley Correctional and Treatment Centre (“St. Lawrence Valley”); and the Ontario Correctional Institute (“OCI”). Ms. Frank explained the programs offered at these facilities and the requirements that an offender must meet in order to be accepted for treatment at each of them.

(i) Algoma Treatment Centre and Remand Facility

[283] Algoma is a medium security facility with a capacity for 200 offenders. The focus of the programming is treatment for addictions and the “Life Without Violence” program for repeat offenders. There are no intensive programs for sexual offenders, but there “may” be some “core” programs offered in that area.

[284] An inmate must initiate an application at the classification stage in order to be accepted to serve their sentence at Algoma. Thus, an offender must be willing and motivated to engage in treatment there. An offender must not have any misconducts for a three-month period prior to their application.

(ii) St. Lawrence Valley Correctional and Treatment Centre

[285] St. Lawrence Valley is a 100-bed facility that is accustomed to dealing with offenders who pose a high security risk.

[286] The focus at St. Lawrence Valley is on treating those who suffer from one or more recognized major mental illnesses, which Ms. Frank defined as “Axis I” diagnoses. An individual diagnosed with antisocial personality disorder would not, to her knowledge, meet the criteria for admission, unless it were combined with a mood disorder or some other condition, such as severe alcoholism that was affecting the offender’s ability to function on a daily basis.

[287] Ms. Frank testified that offenders suffering from severe mental health issues are given priority in terms of acceptance decisions. Unlike Algoma or OCI, an application to St. Lawrence Valley is initiated by the classification officer, not the offender.

[288] Ms. Frank testified that her review of Mr. Akbar’s records did not suggest that he suffered from a major mental health issue such that it would lead to an application to St. Lawrence Valley.

(iii) Ontario Correctional Institute

[289] OCI is a 300-bed, “dorm setting” where offenders may take a number of different treatment programs, including those specific to sex offenders. Programs for sexual offending, substance abuse, and anger management may be taken concurrently rather than sequentially.

[290] An application to OCI must be initiated by the offender at the classification stage. An offender cannot be ordered to make an application. When the sentencing judge has recommended that an offender serve his sentence at OCI, the classification officer will review the issue but the judge’s recommendation does not guarantee the offender’s acceptance into that facility.

[291] In order to be considered for OCI, an offender must have been sentenced to at least 16 months’ imprisonment and be willing to waive or defer parole. A term of two years less one day is the optimal length of sentence, especially if the offender has a number of problems to address.

[292] In order to be accepted at OCI, offenders must demonstrate that they are motivated to engage in treatment and be able to function well in a dormitory setting, where they will be required to participate in group programs with other inmates. Since some treatment programs require “self-study”, an offender must acknowledge his issues and be committed to addressing them in order to successfully complete a program. Refusal to acknowledge guilt for prior offences, refusal to acknowledge the need for treatment, such as for alcoholism, a lack of motivation to engage in treatment, a lack of insight into the effects of one’s offending and a history of conflict while in a custodial setting are all factors that militate against acceptance at OCI.

[293] An offender who is accepted at OCI and then refuses to participate in the treatment programs will be reclassified and transferred to another institution. There are no consequences for such an offender in terms of the ultimate length of sentence that he must serve. Approximately 18 per cent of offenders who are accepted to serve their sentence at OCI are removed from the facility at the intake stage.

THE APPLICABLE DANGEROUS OFFENDER AND LONG-TERM OFFENDER PROVISIONS

[294] The Crown seeks to have Mr. Akbar declared a dangerous offender under s. 753(1)(a)(i) and (ii), and s. 753(1)(b) of the Criminal Code, which state as follows:

753. (1) – On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

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

(i) a pattern of repetitive 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, [or]

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, … [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.

[295] Once the s. 753 statutory elements have been proved, the court must make the “dangerous offender” designation. However, it is not mandatory to impose an indeterminate sentence. Section 753(4) gives the court remedial discretion as to the appropriate sentence, but that discretion is constrained by s. 753(4.1). Sections 753(4) and 753(4.1) read as follows:

753(4) – If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of imprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph 4(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[296] Under s. 753 (5), if the court does not find an offender to be a dangerous offender, the court may treat the application as an application to find the offender to be a long-term offender under s. 753.1. Sections 753 (5) and s. 753.1(1), (2), and (3) state:

753(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) 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 … s.271 (sexual assault),… 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 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 must be a minimum punishment of imprisonment for a term of two years; and

(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

REQUIREMENTS FOR A DANGEROUS OFFENDER DESIGNATION

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

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

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

[300] Crown counsel submits that Mr. Akbar’s criminal antecedents, particularly with respect to sexual offences, demonstrates “a pattern of repetitive behaviour” within the meaning of s. 753(1)(a)(i), “a pattern of persistent aggressive behaviour” within the meaning of s. 753(1)(a)(ii) of the Code, and a history of failing to control his … sexual impulses within the meaning of s. 753(1)(b).

[301] A pattern of behaviour is something more than a mere history of criminal activity. To constitute a pattern, there must be something that connects prior incidents together in a manner that justifies considering them as a whole. Similarity can supply the requisite degree of connections. Generally, the fewer the incidents in the past, the greater their similarity must be to amount to a pattern. Similarity can be found in the types of offences or in their circumstances: R. v. Smyth, [2007] O.J. No. 1946 (S.C.J.), at para. 63.

[302] The predicate offence represents Mr. Akbar’s fourth conviction for a sexual offence. Although the level of violence used and the means of committing the sexual offences vary, there is a similarity or pattern in the sense that Mr. Akbar knew all of the victims and built up a level of trust on their part before he sexually assaulted them.

[303] The victim of the indecent assault committed by Mr. Akbar in 1970 was an acquaintance or girlfriend. G.R., whom Mr. Akbar sexually assaulted in 2000, was developmentally handicapped. Mr. Akbar befriended her and built up her trust by helping her with household chores, shopping etc. The sexual assault took place after G.R. soiled herself and had taken a bath. Mr. Akbar took advantage of the situation and attempted to have intercourse with her.

[304] In 2003, while on probation for the sexual assault on G.R., Mr. Akbar sexually assaulted S.B., whom Rivard J. described as disabled and vulnerable. Having met 20 years earlier, Mr. Akbar and S.B. became reacquainted and began to date. One night, following dinner and after S.B. had taken a shower, Mr. Akbar, for no apparent reason, beat S.B. until she was nearly unconscious and then forced intercourse on her.

[305] In the predicate offence, the victim, H.D., and Mr. Akbar were old acquaintances but had not seen each other for several years. After meeting by happenstance, Mr. Akbar visited H.D. several times at her apartment. On the last occasion, he brought over liquor and shared it with her and her boyfriend. H.D. allowed Mr. Akbar to sleep on the couch in the living room. Mr. Akbar took advantage of H.D.’s hospitality and trust by gaining entry to the bedroom and sexually assaulting her as she slept. The fact that Mr. Akbar was prepared to run the risk of waking up H.D.’s boyfriend, who was sleeping beside her, speaks to his inability to restrain his behaviour or control his sexual impulses, as he had failed to do on three earlier occasions that resulted in convictions for sexual offences.

[306] There is a gap in Mr. Akbar’s criminal record between the time that he was released on probation for the sexual assault on S.B. and his commission of the sexual assault on H.D. On December 12, 2005, Rivard J. sentenced Mr. Akbar to time served (21 months) plus probation for 3 years for sexually assaulting G.R. On March 8, 2011, which was five years and three months later, Mr. Akbar sexually assaulted H.D. Mr. Akbar spent six months of this “gap” period in custody. The resulting gap is therefore four years and nine months. Although this is a significant period of time, which Dr. Klassen viewed as consistent with age-related decline, Mr. Akbar ultimately reoffended when he sexually assaulted H.D. – his third sexual assault in eight years, if his time in custody is not included in the calculation. Dr. Klassen viewed this number of convictions within that time frame as significant in terms of Mr. Akbar’s present risk to re-offend.

[307] Mr. Akbar’s criminal record includes many convictions for breaching court orders, which is a further indication of his inability to restrain his behaviour when required to do so. His record includes the following entries: fail to comply with a recognizance (1972 and 2001); resist or obstruct peace officer (1982); obstruct justice (1985); escape lawful custody (1989); attempt obstruct justice (1993); and fail to comply with probation (2001). In addition, Mr. Akbar was on probation for the sexual assault of G.R. when he committed the sexual assault on S.B. in 2003.

[308] Mr. Akbar’s criminal record also includes many offences involving violence to others, including slapping his ex-common-law wife when she refused to sit and talk to him and head-butting a 15-year-old boy. The synopsis from an occurrence in May 2000 indicates that Mr. Akbar, while intoxicated, brandished a knife and threatened to kill the victim after the victim refused to let him stay at his apartment. Mr. Akbar’s convictions for offences involving violence include the following: assault (1978, 1985, 1988, 1991, 1999, and 2003); robbery with violence (1979); robbery (1983); and assault with a weapon (2000 and 2001).

[309] Other than his general expression of remorse to Dr. Klassen for having caused harm to others, and his statement to the court in which he apologized for his assault on H.D., Mr. Akbar has consistently refused to acknowledge or accept responsibility for his offending behaviour. He has denied sexually offending against women; rather, he has claimed that women love him and that he has had no problem finding willing partners. Mr. Akbar often portrayed himself as the victim and blamed everyone else, including the victim, his lawyer and “the system” for his circumstances. He has shown little insight into his criminal behaviour and substantial indifference to the effect that that behaviour has had on his victims.

[310] In summary, I am satisfied beyond a reasonable doubt that

(i) there has been a pattern of repetitive behaviour by Mr. Akbar, of which the sexual assault on H.D is a part, showing a failure by him to restrain his behaviour;

(ii) there has been a pattern of persistent aggressive behaviour by Mr. Akbar, of which the sexual assault on H.D. is a part, showing Mr. Akbar to have a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour; and

(iii) Mr. Akbar’s sexual assaults on H.D., S.B. and G.R. demonstrate a failure to control his sexual impulses.

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

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

[312] In terms of the standard of proof with respect to the “likelihood” test, I would also refer to R. v. Knight (1975), 1975 CanLII 1424 (ON SC), 27 C.C.C. (2d) 343 (Ont. H.C.), at p. 356, where Morden J., in considering a dangerous offender application, stated:

I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future – this, in the nature of things would be impossible in practically every case – but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct.

[313] According to Dr. Klassen, Mr. Akbar, from both a clinical and actuarial perspective, is currently at a very substantial risk to reoffend. Dr. Klassen testified that from a purely psychiatric perspective, Mr. Akbar meets the probability criteria for dangerous offender status, although that may no longer be the case over the next number of years.

[314] Dr. Klassen diagnosed Mr. Akbar as suffering from a severe personality disorder, specifically antisocial personality disorder with narcissistic traits, as well as a severe substance abuse problem. Individuals with antisocial personality disorder are generally considered to be untreatable; hence, the focus is on modifying the offender’s behaviour as opposed to treating the disorder. Mr. Akbar’s PCL-R score of 32 suggests “pretty entrenched anti-sociality” and is a negative prognostic factor in terms of treatment outcome.

[315] Mr. Akbar has minimized or outright denied much of his criminal conduct, which heightens concerns over the risk he would pose to the community. Failure to take responsibility for wrongdoing has been held to be an aggravating risk factor in terms of treatability. In R. v. B. (D.V.), 2010 ONCA 291, 100 O.R. (3d) 736; leave to appeal denied, [2011] S.C.C.A. No. 207, the court drew a direct factual link between treatability and the offender’s denial of wrongdoing.

[316] Mr. Akbar’s actuarial scores are high. Even on the STATIC-99R, which adjusts for an anticipated age-at-release date greater than 60, Mr. Akbar is a moderate to moderately high risk to reoffend sexually. His score on the STATIC-99R puts him in a category of offenders who are approximately twice the risk for sexual offending than the “average” sex offender. Similarly scoring individuals recidivated violently or sexually at a rate of approximately 40 percent over 10 years’ opportunity in the community.

[317] Mr. Akbar’s SORAG score was higher than 98 to 99 percent of randomly selected individuals from the standardization sample, which was admittedly a very small sample. Similar-scoring individuals recidivated violently or sexually at a rate of 100 percent over ten years of opportunity in the community. Mr. Akbar’s VRAG score, which predicts risk of domestic non-sexual violence, placed him at the 89th percentile. Individuals with similar scores recidivated violently at a rate of 64 percent over ten years. Mr. Akbar scored 33 on the HCR-20, which appraises overall risk of violent recidivism. In a seven-and-a-half year follow up of federal offenders in Canada, those with scores in this range recidivated violently at a rate of 93 percent.

[318] Dr. Klassen testified that even though Mr. Akbar’s scores on the SORAG, VRAG and HCR-20 are probably overestimates of risk, Mr. Akbar is still at a very substantial risk to reoffend. Taking into account that Mr. Akbar just turned 60, Dr. Klassen opined that his risk in the immediate future is probably somewhere in between the higher scores on the SORAG, VRAG and HCR-20 and the lower score on the STATIC-99R.

[319] Dr. Klassen was not challenged in cross-examination with respect to his scoring or his diagnoses.

[320] Mr. Akbar’s past history points to his re-offending violently. Defence counsel pointed out that Mr. Akbar did not employ violence in committing the predicate offence. There was, however, no need for him to use violence as he attacked H.D. while she was sleeping.

[321] Taking into account the expert testimony of Dr. Klassen, Mr. Akbar’s serious criminal conduct over the years, his minimization and denial of that conduct, and the fact that he has never engaged in any treatment programs, I find there is a “likelihood” of Mr. Akbar causing harm to others in the manner described in ss. 753(1)(a) and (b).

[322] I conclude that the Crown has established beyond a reasonable doubt that Mr. Akbar meets the test for a dangerous offender designation. The requisite “threat to the life, safety or physical or mental well-being of other persons” pursuant to s. 753(1)(a) has been proved. The essential element of the s. 753(1)(b) test, that is, the “likelihood of causing injury, pain or other evil to other persons through failure in the future to control his … sexual impulses” has also been established.

POTENTIAL SENTENCES THAT MAY BE IMPOSED ON A DANGEROUS OFFENDER

[323] Pursuant to s. 753(4), a court that has found an offender to be a dangerous offender shall (a) impose an indeterminate period of detention in a penitentiary; (b) impose a sentence for the offence for which the offender has been convicted, which must be at least two years’ imprisonment, and order that the offender be subject to long-term supervision for a period not exceeding 10 years; or (c) impose a sentence for the offence for which the offender has been convicted.

[324] Pursuant to s. 753(4.1), the court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence that there is a reasonable expectation that a lesser measure under paragraph 4(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[325] The key issue in determining whether a lesser sentence than indeterminate detention should be imposed is whether that sentence “will adequately protect the public.” As noted by Code J. in Gibson, at para. 56, “There is some degree of over-lap between this requirement and the test for a long-term offender supervision order under s. 753.1(1)(c), namely, whether ‘there is a reasonable possibility of eventual control of the risk in the community.’” Code J. further noted that the courts have held that these kinds of remedial sentencing provisions do not impose a burden of proof on either party. Rather, as stated by Simmons J.A. in R. v. F.E.D., 2007 ONCA 246, 84 O.R. (3d) 721, at para. 50; leave to appeal denied, [2007] S.C.C.A. No. 568, it is an issue for the sentencing judge concerning whether to exercise his or her discretion based on the whole of the evidence. If the sentencing judge is uncertain as to whether there is a reasonable possibility of eventual control of the risk, the sentencing judge should refuse to exercise the discretion not to declare the offender dangerous based on the long-term offender provisions.

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

… [T]he 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.

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

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

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

[329] In accordance with these definitions, courts have consistently concluded that a reasonable plan is not one that is speculative or hypothetical. Much more than speculation, an expression of hope or a remote possibility is required to satisfy the court that the offender’s risk to re-offend could be managed in the community: R. v. Grayer, 2007 ONCA 13, 215 C.C.C. (3d) 505, at para. 67; and R. v. I.J.B., 2010 ONCA 387, [2010] O.J. No. 2209 at para. 14. See also R. v. Goforth, 2007 SKCA 144, 302 Sask.R. 265 at para. 54, where the court held that a “reasonable possibility”, of necessity, must involve something more than hope or empty conjecture:

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

WHETHER THERE IS A REASONABLE EXPECTATION THAT A LESSER MEASURE THAN AN INDETERMINATE SENTENCE WILL PROTECT THE PUBLIC IN THIS CASE

[330] In the present case, the factors to be considered in determining whether there is a reasonable expectation that a lesser sentence than indeterminate detention would adequately protect the public include the effects of age-related decline and the effectiveness of external controls that may be put in place. Mr. Akbar’s responses to supervision while in and out of custody, his motivation for treatment, the prospects for success of such treatment and whether it will reduce his risk of re-offending to an acceptable level are also relevant factors.

Age-related decline and propensity for offending

[331] Crown counsel submits that Dr. Klassen’s testimony that Mr. Akbar’s risk over the next ten years may be reduced as a result of age-related decline should be given little or no weight as it is predominately based on actuarial statistics and amounts to a mere possibility. The Court of Appeal has disapproved of the approach of relying solely on statistical evidence unconnected to the offender in assessing future risk. In R. v. Poutsoungas, (1989) 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.), at 390; leave to appeal denied, [1992] 1 S.C.R. x, the court stated that it is a “large step” to go from a statistical tendency to a conclusion that a particular offender’s future will follow such a course. The court went on to note that “if the young person ‘burn-out’ theory standing alone were a valid basis for avoiding an indeterminate term, such a sentence would have very little scope for operation.” The offender in Poutsoungas was 23 years old. See also R. v. Edwards, 2008 ONCA 414, 237 O.A.C. 40, at para. 11; R. v. Herbert, 2006 CanLII 6449 (ON CA), [2006] O.J. No. 829, 207 O.A.C. 337, at para. 8; and R. v. Nicholas, 2010 ONSC 2929, [2010] O.J. No. 2364.

[332] Dr. Klassen testified that given Mr. Akbar’s current age – 60 – there will likely be a significant decline in his propensity for violent or sexual recidivism over the next ten years for age-related reasons. Dr. Klassen did not rely solely on actuarial statistics unconnected to Mr. Akbar in coming to this conclusion. In his view, the four-year-and-nine-month gap between the time that Mr. Akbar was released on probation with respect to the sexual assault on S.B. and his commission of the predicate offence is reflective of age-related decline. In other words, the effects of age-related decline are already underway in Mr. Akbar’s case. Dr. Klassen quantified the decline as “significant.”

[333] Dr. Klassen acknowledged that the fact that Mr. Akbar committed a new sexual offence at the age of 57 is unusual. His risk at that age for a sexual assault on an adult female, according to group norms, would have been very low. In fact, Dr. Klassen had never before encountered a patient who had been convicted of such an offence in his fifties. However, Dr. Klassen went on to testify that Mr. Akbar’s reoffending at age 57 does not mean he is immune from age-related decline. It simply means that his risk is somewhat above average for that age and hence he has “a little farther to go.” His offending at age 57 “makes him one of the last stragglers in terms of a sexual assault against an adult female.”

[334] Dr. Klassen testified that Mr. Akbar will continue to experience age-related decline but for now, “he needs to be managed as a person at significant risk of sexual re-offence for a period of time that takes us to the end of the ability of the tools to predict”, which is the age of 70. After age 70, the number of sexual offenders who offend against adult females is so small that the actuarial tools are not reliable. Dr. Klassen observed that in Karl Hanson’s large data set of rapists, there were no rapists in the 60-to-70 age group.

[335] In my view, Dr. Klassen’s testimony regarding age-related decline as it applies to this 60 year-old offender’s risk for re-offence amounts to more than mere speculation and is a proper factor for consideration in the context of all of the evidence in determining whether and/or when that risk can be reduced to an acceptable level.

Substance abuse

[336] Dr. Klassen diagnosed Mr. Akbar as having a serious alcohol abuse disorder, although he may not meet the criteria for alcohol dependence. Mr. Akbar reported that he drank in order to fit in with his peers and sometimes to cope with depression, stress, and anger. He drank daily, particularly when he was homeless. In recent years, he has used alcohol more sporadically or in a binge fashion. His longest period of abstinence was three years, commencing in 1988.

[337] There can be little doubt that alcohol has played a significant role in Mr. Akbar’s offending behaviour. According to Dr. Klassen, if Mr. Akbar were able to abstain from alcohol consumption, his risk of reoffending would be substantially reduced. I note that Mr. Akbar had consumed an extremely large amount of alcohol when he committed the predicate offence.

[338] It was Dr. Klassen’s impression that Mr. Akbar did not feel he had a serious alcohol problem: at one point he told Dr. Klassen that he felt he could safely return to alcohol use, which Dr. Klassen found somewhat worrisome. He also told Dr. Klassen that he was not amenable to taking treatment for alcohol abuse.

[339] Mr. Akbar’s failure to recognize that he has an alcohol problem and his negative response in terms of willingness to take treatment do not bode well for the success of that treatment. At the same time, Mr. Akbar made a number of comments to Dr. Klassen that indicate that he is very much aware that he has a problem with alcohol and that alcohol has had negative effects on his life. He described drinking as his “big downfall.” He stated that his use of alcohol was problematic even when he was a teenager, as it caused him to miss school. As an adult, his overconsumption of alcohol caused issues in terms of his work and his personal relationships. He acknowledged that he was more aggressive when under the influence of alcohol.

[340] Similarly, when Mr. Akbar was interviewed by Dr. McDonald, he readily acknowledged that alcohol had contributed to his extensive criminal record, although he also denied having a drinking problem and stated that he had no interest in taking a treatment program. Mr. Akbar told Dr. McDonald that he drank heavily in response to depression.

[341] Mr. Akbar also denied to Winton Wong, his probation officer from December 2005 to May 2008, that he had a problem with alcohol. As a result, Mr. Wong never referred him to a treatment program, even though one of the terms of Mr. Akbar’s probation order was that he take such treatment for alcohol abuse as may be recommended by his probation officer. Mr. Wong explained that he felt there was no point in making such a recommendation, given Mr. Akbar’s denial that he had a problem with alcohol. In hindsight, however, Mr. Wong wished that he had insisted that Mr. Akbar take treatment. Both Mr. Wong and Mr. Nikolic testified that there are now group programs for offenders who are “deniers.” Dr. Klassen testified that the early stages of treatment typically address denial.

[342] The fact that Mr. Akbar has been regularly attending AA and NA meetings while in pre-trial custody is some indication that he now recognizes he has a substance abuse problem and is prepared to take at least some steps to address it. (Dr. Klassen was unaware that Mr. Akbar has been attending these meetings.) Mr. Akbar also acknowledged to this court that at the time of the predicate offence, he had a problem with prescription drugs.

[343] Dr. Klassen testified that Mr. Akbar requires significant and intensive substance-related treatment – the kind of treatment available in the federal penitentiary system. Mr. Akbar has never been ordered to take or been subject to such treatment interventions in the past. His attendances at AA and NA meetings and his acknowledgement that he has a problem with prescription drugs are positive signs in terms of his willingness to engage in and benefit from such treatment. However, I also bear in mind Dr. Klassen’s evidence that given Mr. Akbar’s level of psychopathy and his diagnosis of antisocial personality disorder, there is a need to manage Mr. Akbar’s risk through external controls rather than relying solely on treatment.

[344] The external controls that would be appropriate in this case include a requirement that upon his release, Mr. Akbar reside at a CCC rather than his own residence and that regular urine tests be conducted for the presence of alcohol and drugs. A requirement that Mr. Akbar have a stable place of residence is particularly important, given his statement that he is more inclined to drink when he is homeless.

[345] Dr. Klassen also recommended that Mr. Akbar take Antabuse and/or other pharmacological agents that reduce cravings. Dr. Klassen, in contrast to Dr. McDonald, did not perceive the side effects of Antabuse to be particularly problematic. Unfortunately, Dr. Klassen did not specifically inquire of Mr. Akbar whether he would be willing to take Antabuse or some similar type of medication.

[346] The Parole Board can order mandatory drug treatment as a condition of an LTSO but, as the court held in R. v. R.B., 2011 ONCA 328, 280 O.A.C. 329, such an order does not mean that the offender would or could be physically forced to take such medication. However, if the offender does not consent to take the medication under the terms of the order, that could then amount to a breach of the condition under s. 753.3(1) unless the offender “had a reasonable excuse for refusing to take the prescribed medication.” (at para. 13).

[347] Ms. Vitek testified that the Parole Board rarely orders an offender, as part of an LTSO, to take medication for a particular problem, such as alcohol abuse, since the offender cannot be forced to take drugs without his or her consent. The Board may, however, order an offender to follow the recommendations of his or her psychiatrist or health care professional. If the psychiatrist recommends medication that the offender subsequently refuses to take, then the offender could be suspended for breaching his LTSO. Ms. Vitek was aware of cases in which offenders have been charged under s. 753.3(1) in these circumstances.

[348] A conviction under s. 753.3(1) carries a maximum penalty of ten years. It has been noted that sentences imposed for a conviction under s. 753.3(1) are often in the range of only days or months: see, for example, R. v. Charbonneau, [2007] O.J. No. 3609, at para. 194; aff’d 2012 ONCA 282, [2012] O.J. No. 1865. However, breaches of conditions that are central to the management of the offender in the community – such as the treatment plan recommended by the offender’s psychiatrist – are always serious and should invite substantially longer sentences than breaches of probation orders. The dominant purpose of sentencing for breaches of LTSO’s is the protection of society, and rehabilitation should play only a small role: see R. v. W. (H.P.), 2003 ABCA 131, 327 A.R. 170.

[349] I also note that the consequences of a conviction under s. 753.3(1) may have far more serious ramifications for an offender who, like Mr. Akbar, has been designated a dangerous offender. I refer in this regard to s. 753.01, which provides a mechanism by which the Crown may apply for an order for a sentence of indeterminate detention in addition to any other sentence that may be imposed for a s. 753.3(1) breach, without having to reprove the dangerous offender designation. Furthermore, pursuant to s. 753.01(5), if the Crown applies for an indeterminate sentence, the court shall impose that sentence unless it is satisfied that there is a reasonable expectation that a sentence for the s. 753.3(1) breach, with or without a new period of long-term supervision, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. Thus, s. 753.01 provides a strong incentive for a dangerous offender on an LTSO not to breach any terms of the order as such a breach would place him in serious jeopardy of receiving a sentence of indeterminate detention.

[350] It is highly probable that a psychiatrist would recommend that Mr. Akbar take Antabuse or some similar type of medication upon his release on an LTSO, given the fact that Mr. Akbar’s abuse of alcohol has played such a central role in his offending. If such a term were included in an LTSO, as well as a condition that he abstain from the consumption of alcohol and drugs and submit to random urine testing, Mr. Akbar, by virtue of the potential punishments pursuant to ss. 753.3(1) and 753.01, would have an extremely strong incentive to comply with the order.

Anger management treatment programs

[351] Denial does not appear to be an impediment in terms of Mr. Akbar benefitting from anger management treatment. Mr. Akbar freely acknowledged to Dr. Klassen that he has a problem controlling his temper and stated that he is willing to take an anger management treatment program. Mr. Akbar has not had the benefit of any such treatment programs in the past.

[352] Dr. Klassen testified that if Mr. Akbar received a penitentiary term, he would likely be slated for an anger management treatment program, as well as programs dealing with substance abuse and sex offending. Dr. Klassen described these programs, which take a relapse-prevention approach, as comprehensive and high-intensity. Unlike the programs in the provincial system, which offer only 80 hours of treatment, the federal programs involve 300 to 500 hours. Dr. Klassen opined that Mr. Akbar may benefit from such a structured and intense anger management treatment program. Studies show that outcomes correlate with the intensity and duration of such treatment.

Sex offender treatment programs

[353] Mr. Akbar’s denial and minimization of his sexual offending are aggravating risk factors with respect to his treatment prospects although, as Dr. Klassen pointed out, denial would be addressed during the initial phase of any sex offender treatment program.

[354] Mr. Akbar pleaded guilty to the predicate offence and apologized in open court for his actions, expressing the sentiment that he wished H.D. were present so that he could personally apologize to her. This attitude is a far cry from the attitude Mr. Akbar exhibited during his interviews with Dr. McDonald over three years ago, and with Dr. Klassen one-and-a-half years ago with respect to his sexual offending. Mr. Akbar has had a history of blaming his victims and portraying himself as the victim of false accusations.

[355] As already noted, it seems that substance abuse has played the most significant role in Mr. Akbar’s sexual offending behaviour. If Mr. Akbar were to abstain from the consumption of alcohol and drugs with the support of the external controls already discussed, his risk of sexual reoffending would be substantially reduced, regardless of the outcome of any sex offender treatment program that Mr. Akbar might take.

[356] Although Dr. Klassen recommended that Mr. Akbar take a sex offender treatment program, he did not specifically recommend that he be given anti-androgen medication if he were released into the community on an LTSO. Mr. Akbar’s phallometric test results were negative for sexual coercion, indicating that he is not sexually aroused by violence. Mr. Akbar does not suffer from a paraphilic or sexual behaviour disorder. His offending is more impulsive than premeditated.

[357] Dr. Klassen testified that Mr. Akbar’s diagnosis of ADHD is consistent with his behavioural difficulties at school and his impulsivity and behavioural difficulties as an adult. According to Dr. Klassen, Mr. Akbar suffers from residual ADHD and may benefit from psycho-educational treatment and pharmacological treatment for that condition. Although the use of medication should be approached with caution, individuals with a history of ADHD who are prescribed stimulants do better in psycho-social programming.

[358] Certainly the issue of treating Mr. Akbar for residual ADHD should be explored further. There is nothing to suggest that Mr. Akbar would be averse to taking medication for ADHD. He took medication for that condition as a child. Mr. Akbar has also expressed concern in the recent past about the state of his mental health. It was at his insistence that he see a psychiatrist when he was first charged with the predicate offence, which led to Dr. McDonald’s assessments and reports. Mr. Akbar also told Dr. Klassen that he was sure he was ill but did not know with what.

Responses to supervision while in and out of custody

[359] Crown counsel submits that the probability of Mr. Akbar residing without incident in a residential setting, such as a CCC, is slight, given his history of aggressive behaviour towards other inmates and correctional staff. The Crown relies in this regard on the records of both the federal and provincial institutions where Mr. Akbar has been incarcerated.

[360] I do not place a great deal of weight on events described in the federal records, as those events took place almost thirty years ago. The provincial records are of greater concern as they are more recent and record a number of incidents where Mr. Akbar has been disruptive, threatening, and manipulative while in custody. This also describes his behaviour during his brief time at Ontario Shores in 2005. I note, however, that there have been no reported misconducts by Mr. Akbar since November 20, 2011, or for the last two-and-a-half years that he has been in custody. The only incident recorded during that time period was on January 11, 2013, and it had nothing to do with misconduct or aggressive behaviour on the part of Mr. Akbar. It simply noted that he was taken to the hospital after complaining of chest pain. The health care unit at the jail was aware that he has a heart condition.

[361] Mr. Akbar’s behaviour during his stay at Ontario Shores, which was almost nine years ago, was extremely problematic. He was highly uncooperative during the preparation of the psychiatric assessment. He was vague, evasive and sarcastic in answering questions, and refused to speak to the psychologist or undergo any psychological testing.

[362] Mr. Akbar’s attitude while at Ontario Shores is in sharp contrast to his attitude during his more recent interactions with Dr. Klassen. Mr. Akbar was completely cooperative, answered all of Dr. Klassen’s questions, signed all the consent forms requested of him, and agreed to undergo phallometric testing. This sea-change in attitude is a positive sign that Mr. Akbar may be able to converse with authority figures in a less hostile manner than he has in the past. Dr. Klassen testified that this is essential if Mr. Akbar is to be successfully monitored in the community. Dr. Klassen himself was able to develop a very good rapport with Mr. Akbar.

[363] Mr. Akbar’s responses to supervision while out of custody have already been reviewed, including his various breaches of court orders and the fact that he sexually assaulted S.B. in 2003 while on probation for the sexual assault of G.R. However, Mr. Akbar did not breach his three-year probationary term commencing in December 2005, which constitutes part of the four-year-and-nine-month gap before Mr. Akbar committed the predicate offence. There are other gaps in Mr. Akbar’s criminal record; for example, there is a five-and-a-half-year gap between his conviction for impaired driving and attempt obstruct justice in 1993 and his conviction for assault in 1999. Mr. Akbar was not being supervised or subject to any probation orders during most of that period.

[364] Mr. Akbar was reasonably compliant in reporting to Mr. Nikolic and reported as required to the Sex Offender Registry. He always kept Mr. Nikolic informed of his whereabouts, despite frequent changes of address. More stability in terms of housing would obviously be a positive factor in Mr. Akbar’s life.

[365] It is not known for certain whether Mr. Akbar completed the 80 hours of community service that was ordered pursuant to the 2002 probation order: there is no documentation regarding this matter and Mr. Nikolic had no recollection of making the requisite referral. However, it is clear that Mr. Akbar took some initiative to comply with this term of his probation, as he advised the probation office in April 2003 that he had contacted the Salvation Army and would be commencing community service as soon as possible. Mr. Akbar was never charged with breaching this term of his probation.

[366] While being supervised by Mr. Wong, Mr. Akbar missed only two out of 36 reporting dates and, on both occasions, called to reschedule the appointments. He was sometimes homeless during this period. Mr. Akbar was polite and respectful towards Mr. Wong, although he continued to refuse to take responsibility for his criminal behaviour – a common theme in Mr. Akbar’s interactions with authority figures.

[367] Mr. Wong felt somewhat hampered in his supervision of Mr. Akbar because Mr. Akbar was only required to report to him once a month. Mr. Wong was of the view that he may have been better able to engage with Mr. Akbar and keep a closer eye on his activities if Mr. Akbar had had to report more frequently. Despite the lack of close supervision, Mr. Akbar was not convicted of any criminal offences during this period of probation. Dr. Klassen noted that Mr. Akbar has not had the benefit of stringent community supervision for quite some time.

Conclusion as to whether there is a reasonable expectation that a lesser measure than an indeterminate sentence will protect the public

[368] Having considered all of the evidence and the submissions of counsel, I am satisfied that there is a reasonable expectation that a lesser measure than an indeterminate sentence will protect the public. In my view, the goal of public protection can be achieved in this case by the imposition of a sentence of five years, followed by an LTSO for a period of ten years. The determinate portion of this sentence will take Mr. Akbar into his mid-sixties. By that time, age-related decline, which, according to Dr. Klassen, is already underway, will continue to reduce Mr. Akbar’s risk of re-offence. After his release into the community, that risk will continue to decline over the next ten years. The risk can also be managed during that period by the imposition of strict terms of supervision. When the LTSO expires, Mr. Akbar will be 75 years old. By that time, Mr. Akbar’s risk of reoffence will likely be well within acceptable limits, if not extremely low: Dr. Klassen described the likely decline in Mr. Akbar’s propensity for violent or sexual recidivism over the next ten years for age-related reasons as “significant.”

[369] In terms of treatment programs, I recognize that Mr. Akbar’s level of psychopathy and diagnosis of antisocial personality disorder dictate that his risk must be managed through external controls rather than relying solely on treatment. That said, there are some positive signs that Mr. Akbar is currently more amenable to treatment than he has been in the past. He is willing to take an anger management treatment program. He has been attending AA and NA meetings. He has displayed some remorse for the predicate offence. Treatment for ADHD may address Mr. Akbar’s impulsive behaviour. As noted by Dr. Klassen, Mr. Akbar’s offending is more impulsive than premeditated.

[370] The lack of reported misconducts while in custody over the last two-and-a-half years indicates that Mr. Akbar’s previous aggression towards other inmates and correctional staff may have subsided, making it more likely that he could reside in a CCC such as the Keele Centre without the problematic behaviour he has demonstrated in the past. His interactions with Mr. Nikolic and Mr. Wong were cordial and, although he refused to take responsibility for his criminal behaviour and denied that he needed treatment for substance abuse, he did complete his last period of probation “conviction free.”

[371] There is a strong incentive for Mr. Akbar, as a designated dangerous offender, to abide by the terms of an LTSO by virtue of the fact that a breach of one of those terms, such as a condition that he not consume alcohol, agree to random urine testing or follow his psychiatrist’s recommendation that he take Antabuse, would place him in serious jeopardy of receiving an indeterminate sentence by virtue of s. 753.01 of the Code. According to Dr. Klassen, as alcohol abuse has played a central role in Mr. Akbar’s offending behaviour, his risk of recidivism would be substantially reduced with the use and enforcement of these external controls.

[372] It was Dr. Klassen’s opinion, which I accept, that Mr. Akbar is more likely to benefit from the comprehensive and high-intensity treatment programs offered by the federal correctional system than from the less intense programs available in the provincial correctional system. The federal programs with respect to anger management, sexual offending and substance abuse each involve 300 to 500 hours of treatment, as opposed to the provincial programs, which may consist of only 80 hours.

[373] In addition, there is no provincial equivalent to the comprehensive correctional plan created for offenders serving a penitentiary term. Participation in provincial programs is strictly voluntary and, unlike the federal programs, refusal to participate does not have a significant impact on parole decisions. Sex offender treatment programs are difficult to facilitate in a standard correctional setting because of security concerns. Such programming is sometimes impossible for inmates who, like Mr. Akbar, are in protective custody.

[374] It is apparent from Ms. Frank’s testimony that neither the Algoma Treatment Centre nor the St. Lawrence Valley would be an appropriate facility to address Mr. Akbar’s particular treatment needs. Algoma does not offer an intensive sex offender treatment program; the focus at St. Lawrence Valley is on treating inmates who suffer from a major mental illness. Mr. Akbar’s diagnosis of antisocial personality disorder and severe substance abuse disorder would not meet that criterion.

[375] OCI offers programs for sex offending, substance abuse and anger management. However, an application to OCI must be initiated by the offender himself at the classification stage. Although, as noted earlier, there are some indications that Mr. Akbar may be more amenable to treatment than he has been in the past, it is unlikely at this stage that he would initiate on his own an application for a substance abuse or sex offender treatment program.

[376] A recommendation by the court that Mr. Akbar serve his sentence at OCI would not guarantee his acceptance into that facility. Mr. Akbar’s refusal to acknowledge guilt for prior offences, his refusal to acknowledge the need for sex offender treatment or treatment for alcohol abuse, and his history of conflict while in a custodial setting are all factors that would militate against his acceptance at OCI. If he were accepted and then refused to participate in the treatment programs, he would be transferred to another institution, with no consequences in terms of the ultimate length of sentence he must serve. His failure to engage in treatment would have no effect on his earned remission. He would be released from custody in less than two years, and would commence his LTSO without having completed any of the treatment programs recommended by Dr. Klassen.

[377] Dr. Klassen cautioned that if Mr. Akbar were released into a CCC too soon, he could “end up doing a DO on the installment plan.” I agree that that could well be the result if Mr. Akbar were sentenced to a reformatory term. Dr. Klassen was of the view that from a psychiatric perspective, taking into account the protection of the public and Mr. Akbar’s rehabilitation, a sentence in the range of five to ten years, followed by an LSTO, would be appropriate. That amount of time would allow Mr. Akbar to benefit from federal treatment programs. According to Ms. Vitek, four to five years is a realistic time frame for the completion of three intensive treatment programs.

[378] In determining the appropriate determinate sentence in this case, I have taken into account that the primary purpose of the dangerous offender regime is the protection of the public. As stated in R. v. Edwards, 2008 ONCA 414, [2008] O.J. No. 2055, at para. 19:

The dangerous offender/long-term offender sentencing regime is a “specialized measure” targeted at offenders who clearly pose a threat to the security of our communities: R. v. Payne (2001), 2001 CanLII 28422 (ON SC), 41 C.R. (5th) 156 at para. 83 (Ont. S.C.J.). In R. v. Lyons at 328, the Supreme Court affirmed that the primary purpose of the dangerous offender sentence regime is the protection of the public. The view expressed in Lyons was described more fully in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 at para. 19:

In Lyons, La Forest J. explained that preventive detention under the dangerous offender regime goes beyond what is justified on a “just desserts” rationale based on the reasoning that in a given case, the nature of the crime and the circumstances of the offender call for the elevation of the goal of protection of the public over the other purposes of sentencing. La Forest J. confirmed, at p. 339, that the legislation was designed “to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration” [Emphasis added.]

Thus, in sentencing the appellant, the trial judge’s paramount concern must have been to design a sentence that complied with the goal of public protection; this concern was elevated above the concern captured within the “totality” principle.

[379] Counsel for Mr. Akbar submits that the appropriate sentence would be one of time served in pre-trial custody – approximately three years and three months – plus a period of supervision. The imposition of such a sentence would, in my view, totally fail to meet the goal of public protection as Mr. Akbar is currently a very substantial risk to reoffend. In all of the circumstances, a determinate sentence of five years is required. When an offender such as Mr. Akbar poses a future danger to the public, a court is justified in not giving full credit for time served: see R. v. Cadilha, 2005 BCSC 1879, [2005] B.C.J. No. 3042; and R. v. Jack, 1998 CanLII 14979 (BC CA), [1998] B.C. J. No. 458.

[380] In summary, I find that the goal of public protection can be achieved by the imposition of a five-year sentence, followed by an LTSO for a period of ten years. A five-year determinate sentence is appropriate, bearing in mind that while Mr. Akbar is serving that sentence, his risk will continue to decline as a result of the aging process. A five-year sentence will also allow sufficient time for Mr. Akbar to complete the intensive treatment programs recommended by Dr. Klassen before he is released from custody and commences the LTSO under strict conditions. By the time the LTSO expires, Mr. Akbar will be 75 years old. Based on all of the evidence, it is reasonable to conclude that Mr. Akbar’s risk of reoffence at that stage would be low or at least well within acceptable limits.

DISPOSITION

[381] Mr. Akbar meets the criteria of a dangerous offender. The sentence imposed is a determinate sentence of five years, to be followed by an LTSO for a period of ten years.

RECOMMENDATIONS RE THE LONG-TERM SUPERVISION ORDER

[382] The Criminal Code does not confer on the court the jurisdiction to set the terms with respect to an LTSO. Since the order will not come into effect for some time, the Parole Board is in the best position to decide what conditions would be most appropriate. The Board will have access to information concerning Mr. Akbar’s rehabilitative progress during the course of his incarceration and his physical and mental health at that time. However, bearing in mind the expert testimony of Dr. Klassen, I would strongly recommend that the following terms be imposed:

i) that Mr. Akbar abstain from the consumption of alcohol;

ii) that Mr. Akbar not have in his possession and not consume any drug other than what may be prescribed by his physician;

iii) that Mr. Akbar comply with random urine tests for the presence of drugs or alcohol;

iv) that Mr. Akbar participate in psychiatric and/or psychological counselling and that he follow any treatment plan that is recommended by those professionals, including treatment for substance abuse and sex offender and anger management treatment programs;

v) that Mr. Akbar take whatever medication may be prescribed for him by a qualified medical doctor treating him for substance abuse;

vi) that Mr. Akbar sign release forms to allow his parole officer to communicate with his treatment providers; and

vii) that Mr. Akbar reside in accommodation that his parole officer deems suitable.

[383] Dr. Klassen expressed concern about the possibility that Mr. Akbar may suffer from bipolar disorder, although he was not able to make that diagnosis based on the material before him. Bipolar disorder is a clinical diagnosis made on the basis of accounts from the sufferer and their family members and the observations of others as to whether there is a pattern of sustained episodes of acceleration and grandiosity. Bipolar disorder is a major mental illness that is highly treatable. In light of Dr. Klassen’s testimony, I would urge those who are involved in assessing and treating Mr. Akbar to be aware of this possible diagnosis and to remain alert for behaviour patterns that may confirm it.

GARTON J.

Released: June 19, 2014

COURT FILE NO.: 077/12

DATE: 20140619

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

UMAR AKBAR

reasons on dangerous offendEr application

GARTON J.

Released: June 19, 2014