R. v. Groves, 2015 ONSC 2590

COURT FILE NO.: CR-12-5077

DATE: 2015/06/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

WILLIAM GROVES

Respondent

Marie L. Dufort and Peter Napier, for the Crown

François Dulude, for the Respondent

HEARD: September 27, December 2-5, 2013; April 9, May 12, October 20, November 10-14, 17-21 and 24-25, 2014; written submissions from counsel in lieu of oral submissions completed on March 17, 2015; statement from accused on March 23, 2015.

PUBLICATION RESTRICTION NOTICE

Pursuant to sections 486.4(1) and 486.5 of the Criminal Code of Canada, any information arising out of the evidence presented to this Court in this matter that could identify any of the complainants or any of the witnesses, including those named in the charges and in the uncharged events placed in evidence before this Court, shall not be published in any document or broadcast or transmitted in any way. This decision complies with this restriction so that it can be published.

REASONS ON DANGEROUS OFFENDER APPLICATION

RAtushny J.

A. Overview

[1] On September 27, 2013 the accused pleaded guilty to twenty-one Criminal Code offences all involving girls under the age of sixteen years.

[2] The offences span a time period of more than three years from May 2008 to September 2011.

[3] The twenty-one offences include twelve counts of child internet luring (s. 172.1(2)), three counts of invitation to sexual touching (s. 152), one count of sexual interference (s. 151(a)), one count of possession of child pornography (s. 163.1(4)), one count of extortion (s. 346 (1.1)), two breaches of recognizance (s. 145(3)) and one breach of a section 161 Order of Prohibition (s. 161(4)).

[4] The offences name twelve victims and the facts entered in support of the pleas reveal an additional five victims. Most of these seventeen young girls were resident in Ontario with two resident in Scotland and one elsewhere in the United Kingdom. The twelve named victims of the Internet luring offences were girls between eleven and sixteen years of age. The three named victims of the invitation to sexual touching offences were girls between the ages of fourteen and sixteen years. The extortion was committed against a fifteen-year-old. The sexual interference victim was between fifteen and sixteen years of age.

[5] The Crown has applied pursuant to s. 753(1) of the Criminal Code of Canada to have the accused declared a dangerous offender. The requisite consent for this application to proceed was received from the Attorney General for Ontario and an assessment report dated June 28, 2014 from Dr. Derek Pallandi has been filed pursuant to s. 752.1.

B. Issues

[6] The issues on this sentencing are:

1. Whether the accused has been convicted of a “serious personal injury offence” as defined in s. 752 and set out in s. 753(1) of the Criminal Code;

2. If the accused has been convicted of a serious personal injury offence as defined, whether he “constitutes a threat to the life, safety or physical or mental well-being of other persons” as set out in s. 753(1) such that this Court is required to find him to be a dangerous offender; and

3. If the accused is found to be a dangerous offender, a determination of the appropriate sentence to be imposed under s. 753(4) and pursuant to considerations set out in s. 753(4.1).

C. The Facts of the Present Offences

1. The Police Investigation

[7] In early 2010 the Ottawa Police Service started investigating complaints of a sexual predator targeting young victims on the Internet by engaging them in highly sexualized conversations and asking them to perform sexual acts online. The original complaint was from a 12-year-old girl residing in the United Kingdom who had been online with the accused. He had exposed his penis to her. The National Child Exploitation and Coordination Centre and the Ottawa police received various similar complaints, however a suspect could not be identified as the complainants were identifying several names as culprits and no clear link could be made. It was not until September 2011 that these complaints were all tied together.

[8] In September 2011 the accused missed his sentencing hearing for an offence of possession of child pornography. The police investigated and found him hanging from a closet door in his residence. He had told a friend he was not going back to jail. They cut him down, sent him to the hospital and obtained and executed a search warrant on his residence on September 29, 2011.

[9] The search yielded a handwritten list of nine different email addresses, a password for a Fido account, handwritten directions and MapQuest directions to somewhere in the Toronto area, electronic devices, compact discs, email addresses and user names used by the accused on Facebook, MSN, Skype and Yahoo and two cellphones.

[10] The police investigation continued. Three of the email addresses discovered in the handwritten list in the accused’s residence were part of the initial unsolved complaints. A review of the evidence seized revealed that the accused had been online using at least sixteen different email addresses and eighteen different user names or aliases. Exhibit 4-1 charts those addresses and aliases.

[11] He had also been very active on his cell phone and while he told police he had thrown it into the Ottawa River, a production order was granted for all activity to and from its number in the eleven-month period before the execution of the search warrant. The police received 61,000 lines of data for the accused’s cellphone for this period, with one line equaling one text that was either an incoming text or an outgoing text on the accused’s cellphone.

[12] Mutual Legal Assistance Treaty (MLAT) requests were made by the Ottawa police for all of the accused’s chats on Facebook, MSN, and Skype since 2008, so as to try to identify any additional victims. The year 2008 was chosen based on one victim telling police she had started to chat with the accused in that year. An MLAT request was not made of Yahoo as it only preserves data for 21 days.

[13] The amount of data received in response to the MLAT requests was enormous. Exhibit 17, a sealed document, indicates all of the accused’s social networking contacts and as Detective Casselman testified, that exhibit represents only a snippet of all of the accused’s contacts since 2008 and probably not even half, as the police could only receive data that had not been deleted from the servers. In total, there were 2295 unique email addresses and 1460 of these had full first and last names attached to them. The names were predominantly female. For 1322 of the names, the police discovered a spreadsheet type of summary on one of the accused’s devices where it appeared he had been keeping track of each of the girls and who he was to them, including his alias, his age and if they had webcammed with him.

[14] Detective Michael Villeneuve gave expert opinion evidence on data recovery and analysis. His Report was filed as Exhibit 19. He had focused primarily on the accused’s two laptops found in his residence. His opinion was that the accused had an above average computer knowledge and comfort level and had taken measures to conceal his activities and to make analysis difficult. One of these measures was to frequently change the time on his computers. This was a technique Detective Villeneuve knew the accused had employed in 2008 when facing a charge of possession of child pornography. Another measure utilized by the accused was the installation of anti-computer forensic software on one of his computers in February and October 2010, June 2011 and September 11, 2011, shortly before he was arrested. There was also evidence of the deletion of over 100,000 files in April 2011, another 7600 files in July 2011 and over 15,000 files between September 11 and 13, 2011.

[15] The police investigation uncovered the names and contact information for seventeen victims and, subsequently, the content of their communications with the accused.

[16] Exhibit 5 summarizes the contacts between each of the seventeen victims and the accused. The chats were either over the Internet or by text messaging and were clearly sexual in nature. They are set out in Exhibit 1, a sealed exhibit, and in Exhibits 13-1 and 13-2. I summarize only a few representative features of the accused’s contacts with each of the victims.

2. The Accused’s Contacts with the 17 Victims

[17] For Victim #1 as referred to in Exhibit 5, the accused began grooming her, a 13-year-old, telling her she must have great hips and a hard tummy and asking her how far developed she was and responding with “wow you are 13 that’s wild wow,” that he was 32 and gave her his phone number. Victim #1 knew of the accused as “Brent”. Victim #1 is an uncharged victim.

[18] Victim #2 was 14 years of age. She knew of the accused as “Mathew”. A forensic analysis of the accused’s electronic devices and this victim’s computer revealed 1373 contacts between her and the accused between July and August 2011. The accused engaged in grooming behavior again. After she sent him a picture at his request he told her how beautiful she was and that he had fooled around with a girl who was 14 and met up with her and all their sex was “so wild so fun” but that he wouldn’t do it unless she wanted to. The investigating officer, Detective Tami Casselman, testified that the accused was very good, very sophisticated at what he was doing in that the pattern he followed was to work at making the young girls feel better about themselves and to gain their trust and respect so they felt comfortable revealing to him. There was talk of the accused travelling to meet Victim #2 and she expected a meet was going to occur, however it never happened. The accused pleaded guilty to the offence of luring in respect of Victim #2.

[19] The police discovered there were over 250 girls on this MSN account of the accused under the name of “Mathew”, all of them appearing to be young and one who was only 10 years of age.

[20] Victim #3 was 12 years of age. She knew of the accused as “Sean” on an MSN account and by texting his cell phone number. She sent him nude images of her breasts at his request. The texts indicate the accused knew she was a child. He called her home phone number. She was to meet him at a prearranged location but decided not to attend. The accused pleaded guilty to the offence of luring in respect of Victim #3.

[21] Victim #4 was 14 years of age. She clearly told the accused she was under 16 years of age. She knew of the accused as “matt5440” on Skype. The police described her as very smart but shy and that she chatted for attention and to get friends. The accused asked her to masturbate on Skype and insert a perfume bottle into her vagina, which she did. The accused frequently exposed his penis to her. She was nude during some contacts. The accused engaged in a lot of sexual talk with her, telling her “so amazing you are…you have great hips…love your nipples, mmmmm.” They talked about meeting to have sex. He arranged a meeting for May 17, 2011 and said he would pick her up on the side of the road when she got off the bus and take her in his car to his place for sex. She balked at going in his car and the meeting did not take place. The accused knew where she resided. In addition to the offence of luring, the accused pleaded guilty to the offence of invitation to sexual touching contrary to s. 152 in respect of Victim #4.

[22] Victim #5 was 14 years of age. She knew of the accused as “Sean” on Facebook. She met twice with the accused in person, at a mall. He had asked her where she lived and she had told him the general area. He asked her if she would want to hook up and have sex and she had replied that she didn’t know. The chats were decidedly sexual in nature. He suggested oral sex. Between March and June 2011 there were 94 cell phone contacts between her and the accused. The accused pleaded guilty to the offence of luring in respect of Victim #5.

[23] Victims #6 and #7 were 13 years of age. They knew of the accused as “Sean” on MSN. There were 189 contacts between the cell phone of Victim #6 and the accused’s cell phone and 405 contacts between the cell phone of Victim #7 and the accused’s cell. The accused knew where they attended school and that they were in grade 8. Victim #6 said the accused asked her to perform oral sex on him many times during their communications. They met twice with the accused and he gave them alcohol on both occasions. A third meeting was scheduled but the police were notified in advance of it and it did not occur. The accused pleaded guilty to the offence of luring for each of Victims #6 and #7.

[24] Victims #8 and #9 were 11 to 12 years of age and residents of Scotland. They knew of the accused as “Mathew” on MSN. The accused began by asking them what they were wearing and being so young, they didn’t know what was going on. He then asked them to chat webcam to webcam, which they did, and the accused exposed his penis to them. They were shocked and notified their parents who in turn notified the Scotland police. The accused pleaded guilty to the offence of luring in respect of Victim #8. Victim #9 is an uncharged victim.

[25] Victim #10 was 14 years of age. She knew of the accused as “Sean” who had communicated with her friend, Victim #5, and met him at a mall. After the mall meeting she and the accused texted each other a total of 82 times between June and August 2011. He wanted to meet with her again but this never occurred. Victim #10 is an uncharged victim.

[26] Victim #11 was between 15 and 16 years of age. She knew of the accused as “Mitchel” on MSN and “Thomas” on Facebook. She did not know the two were the same person. She understood Thomas was 15 years of age and that Mitchel was his 34 year-old-brother. In the one-year period between October 2010 and September 2011 there were a total of 2382 contacts between her and the accused. She was a very vulnerable victim. Her mother was ill and later died. Her home life was chaotic. The accused requested naked images from her but she never sent them to him. She did meet with the accused under his alias of Mathew on four occasions when he travelled away from Ottawa to her area after having contacted her in advance. They met three times at Taco Bell and she brought her sister with her. He gave her money for pizza. She was scared of him because he was so much older. On a fourth occasion, he drove her to his hotel room. She told him she didn’t want to have sex with him. He wanted her to take his penis out of his pants but she did not oblige. He then forced her to touch his penis. In addition to the offence of luring, the accused pleaded guilty to the offences of invitation to sexual touching (s. 152) and sexual interference (s. 151) in respect of Victim #11.

[27] Victim #12 was between 14 and 15 years of age. She knew of the accused as “Brent” on Omegle (a chat site) and MSN. He told her he was 16 years of age after she said she was 15 and a student. He first asked for pictures of her face. She complied. He then asked for pictures of her breasts. She refused but the accused was persistent. He threated to tell everyone at her school and destroy her reputation if she didn’t send him the pictures of her that he wanted. She gave in. He then incessantly asked her for pictures of her vagina and again she eventually complied. She said his threats made her feel pressured and otherwise she would not have exposed herself on webcam to him. He sent her a picture of his erect penis even though she had said she did not want to see it. He told her he wanted actual sex with her. There was talk of a meeting but she never met with him. In addition to the offence of luring, the accused pleaded guilty to the offences of extortion (s. 346 (1.1)) and invitation to sexual touching (s. 152) in respect of Victim #12.

[28] Victim #13 communicated with the accused over three years. She started when she was 12 years of age in 2008, knowing the accused as “Mitchel” and “Sean” on MSN and Facebook but not realizing that they were the same person. She believed he was 17 or 18 years of age. She told him how old she was. There were 1235 contacts between them in the eleven-month period between October 23, 2010 and September 8, 2011. The online chatting began with regular small talk in the first six months and then went in another direction with the accused asking her if she was a virgin, if she had masturbated and if she would have sex with him. He often asked her for naked pictures of herself and told her that he wanted to have sex with her. He expressed an interest in meeting her. He wanted to send her pictures of his penis and she said no. He eventually sent a picture of his face to her so she could recognize him when he came to her town to meet her. She reacted to his age by asking him if his picture was a joke because he was so much older than she had understood him to be. She became frightened. He then texted her to tell her he was near her and she saw him wave at her. She told her friends he was dangerous. She was very upset and feared for her safety. She contacted police. The accused pleaded guilty to the offence of luring in respect of Victim #13.

[29] Victim #14 was 14 years of age. She knew of the accused as “Mitch” and “Wesley” on Skype, but not that they were the same person. She cried throughout her first interview with police and said the accused had “weirded her out”. Her Skype chats with the accused are included in Exhibit 13-1 and show the same pattern of sexualized communication from the accused. He asked her if she had a wild side. She replied, “nope, I’m way too young.” The accused’s responses at times were “mmmmm”. She said there had been no cell phone texting, no webcams used and no meeting with the accused. When he had asked her to go on webcam with him she declined. The accused pleaded guilty to the offence of luring in respect of Victim #14.

[30] Victim #15 was 15 years of age. She was discovered as a result of the police speaking with her friend, Victim #13. She knew of the accused as “Mitch” through his cell phone. In the two days of September 4 and 5, 2011, there were 152 contacts between her and the accused and she had told the accused of her age. On those dates, the accused was facing outstanding charges and had been released on a recognizance in 2008 including conditions not to communicate with persons under the age of 16 years and not to possess any electronic device capable of carrying images. He pleaded guilty to the offence of breaching that recognizance between May 23, 2008 and September 8, 2011, including in respect of Victim #15, and to a second breach on September 14, 2011.

[31] Victim #16 was 13 years of age. She knew of the accused as “Wesley” and “Sean” on MSN, Omegle and Facebook but did not know that they were the same person. She and the accused had 240 cellphone contacts amounting to daily contacts between late December 2010 and July 2011. She recalled Wesley as “very dirty” and “thinks with his pants” and that there often was sexual talk. She understood him to be 17 years of age. He told her he had had sex with a 14-year old when she had informed him that she was 14 rather than her real age of 13. He asked her to have sex with him and asked her to meet up with him and said they could just have sex in the bushes behind her school. She refused. The accused pleaded guilty to the offence of luring in respect of Victim #16.

[32] Victim #17 was a 12-year-old residing in the United Kingdom. She is an unnamed victim and there are no charges in respect of the accused’s conduct against her that began in May 2010. She knew of the accused as “Kevin” on MSN. He said he was a boy from her school. He managed to get her to chat with him webcam to webcam and broadcast himself masturbating to her.

[33] Arising out of his online and other activities with young girls between January 8 and August 18, 2011, the accused has also pleaded guilty to breaching a section 161 Prohibition Order made on April 3, 2007.

[34] Finally, the accused pleaded guilty to the offence of possession of child pornography (s. 163.1(4)) in the form of 439 images and 24 movies depicting sexual intercourse with very young children, oral sex with a toddler, naked girls in the “tween” age, sexual interactions between adults and children and bondage of the hands or feet of 9- and 10-year-olds.

D. The Accused

1. Personal Circumstances

[35] The accused is 52 years of age. He has two teenage children who reside with his ex-wife. He has had no contact with his children since 2007. His parents are deceased. He has four sisters and one brother and has had no contact with any of them since 2009. He reports no history of sexual maltreatment in his early life.

[36] He graduated from secondary school and in 1985 completed a two-year program in hotel and restaurant management. Subsequent to that he completed one year of an accounting course and a computer system analyst program in 1992.

[37] The accused held a succession of jobs in the food industry. While working at Red Lobster between 1991 and 1993 a sexual harassment claim was made against him by a female staff member and he was terminated. At Burger King he was described as a generally good employee although females at the jobsite found him to be somewhat “tactile” with them.

[38] He was employed as a bus operator with OC Transpo for fourteen years until he was suspended in 2004 in the context of his legal problems. He returned to the food industry and then worked with a property maintenance company until he was let go in September 2011.

[39] He has been held in protective custody throughout his detention and since his June 2012 sentence of 22 months’ incarceration for possession of child pornography. During the last almost 4 years of incarceration, he has not incurred any institutional misconducts.

[40] He reported his alcohol use as recreational and casual, punctuated by heavier use between 2010 and 2011. There is no evidence of street or prescription drug misuse.

2. The Accused’s Criminal Record

[41] The accused has a criminal record consisting of five prior convictions. These convictions confirm his child-luring activities between May 2004 and August 2008 and when considered together with the present offences, extend those criminal activities to September 2011, a total period of more than seven years.

[42] His first four convictions in 2007 were for sexual interference and invitation to sexual touching offences committed against two thirteen year old girls in May 2004, for breaching the conditions of his undertaking within four months of his release on those charges in September 2004 and, when released again on a recognizance, for breaching the terms of his recognizance between August and October 2006.

[43] These 2007 convictions involved child-luring activities by the accused dating back to May 2004 and then again in September 2004 and between August and October 2006. All those activities were similar to his subsequent pattern of activities beginning in 2008 in respect of the 17 victims of the present offences.

[44] For the thirteen year old victims of his May 2004 offences, the accused had sought them out at a public library, started talking sexually to them, obtained their phone numbers, picked two of them up at their school and engaged them in sexual touching.

[45] With respect to his September 2004 breaches, the accused had been forbidden to contact any of the young girls he had had contact with at the public library. He ignored that condition and initiated sexualized Internet chats with them.

[46] With respect to his 2006 breaches, the accused had a bail condition not to use any computer except for work purposes at the OC Transpo office where he was then employed. In October 2006 he was observed in front of his computer talking to young girls who were visible on his screen on their webcams.

[47] In April 2007 the accused was given a 2 years less-one-day conditional jail sentence in respect of these 2004 and 2006 offences, followed by probation for three years. By the terms of his conditional sentence he was not to possess or access any electronic device including computers and cell phones that had the capacity to connect to the Internet.

[48] He breached his conditional jail sentence six times, in May, June and December 2007 and in January, March and August 2008. His breaches involved use of cell phones and computers while reporting to his conditional sentence supervisor that he had none of those devices. He was also found in possession of child pornography on his computer in March 2008. During his August 2008 breach he had been residing at a halfway house for almost four months and broke house rules by purchasing alcohol as well has being in possession of a computer contrary to his conditional sentence conditions.

[49] In September 2008 his conditional jail sentence was terminated and the accused served its unexpired portion in jail.

[50] On June 7, 2012, the accused was sentenced to 22 months in custody for his March 2008 offence of possession of child pornography.

3. The Accused’s Behaviour While Under Intensive Supervision of Probation Services and While Under Psychiatric Care

[51] Beginning in June 2007 when the accused was released from provincial custody and until October 2011, he was under almost constant probation supervision and had frequent psychiatric care attendances at the Royal Ottawa Hospital’s sexual behaviour clinic. His pattern did not vary in that he assured everyone he was complying with his court orders and benefitting from his psychiatric counseling, all the while breaching his court orders and re-offending with his child luring activities.

[52] Exhibit 21 is a graphic example in chart form of the accused’s continual reoffending while under psychiatric care. Some examples suffice.

[53] In October 2007, after the accused’s incarceration on outstanding charges, seven psychiatric appointments and his two convictions against thirteen-year-old girls, he created one of his offending Facebook accounts on the same day as one of his psychiatric appointments.

[54] In May, July and August 2008, after eight more psychiatric appointments and another brief period in custody, the accused engaged in offending Facebook chats until he was incarcerated in August 2008.

[55] After six months of incarceration in 2008-2009 and ten more psychiatric appointments, the accused engaged in offending Yahoo chats in 2010 and cleaned his computer of materials.

[56] Between June 2010 and September 2011 and after nine more psychiatric appointments, the accused engaged in offending chats under different aliases on Facebook and Yahoo, downloaded file names suggestive of child pornography and, just prior to his 2012 sentencing for possession of child pornography, engaged in further offending video internet chats and purged a large amount of data from his computer.

[57] His conduct while under intensive probation supervision was equally intractable. He assured everyone he was in compliance with court orders when the opposite was true. He reported to probation services that he was doing well. Again, a few examples suffice.

[58] In October 2007 just prior to creating a new offending Facebook account, he denied any use of electronics contrary to the terms of the conditional sentence order in a meeting with his probation supervisor.

[59] In June 2008 he assured his probation supervisor that all was well and to such an extent that she reported him as seeming to have “settled emotionally”. Within a week, he was found to be chatting on offending Facebook accounts under different aliases.

[60] Two weeks later in June 2008 he told his probation supervisor that he was “still building confidence” and that his job required physical activity and had been a “good stabilizer” for him. Four days before, he had been chatting online under one of his offending aliases.

[61] In July 2008 the accused was residing at a halfway house. He assured his probation supervisor that he did not own any electronic devices, however just two days earlier he had downloaded files with names suggestive of child pornography.

[62] In August 2008 the accused was still residing at the halfway house. He reported to his probation supervisor that he was abiding by his conditions of not possessing any electronic devices, however one day earlier and on the same day he had been chatting online under one of his offending aliases.

[63] One week later in August 2008 his probation supervisor confronted him about the two computers found in his room at the halfway house and he replied that they were DVD players and not laptop computers. However, the day before this meeting with his probation supervisor and making this statement about the DVD player, he had been chatting online on an offending Facebook account.

[64] This pattern of denying any offending behavior and continually engaging in offending behavior continued for the next three and one-half years into the fall of 2011. He commented to his probation supervisor that he saw “value in continuing treatment,” that he was in full compliance with his conditions and that there were “no changes and no concerns.” At the same time he continued to create and use offending email accounts under numerous aliases and to engage in sexual chats online with young girls under different aliases, notwithstanding his many assurances to his probation supervisor and his court attendances intersecting this timeframe.

[65] One day after the accused’s trial on possession of child pornography charges was scheduled to commence on April 27, 2011, the accused engaged in sexual chatting on an offending MSN account. While awaiting the preparation of a presentence report in respect of his conviction for possession of child pornography, he continued to chat on one of his offending Yahoo email accounts.

[66] In August 2011 at a meeting with his probation supervisor, he produced his telephone bill to show his supervisor that there was “no internet use logged.” Police subsequently discovered that in the days after this assurance to his supervisor he had been chatting online on one of his offending Internet accounts.

4. Psychiatric Evidence

[67] There are three psychiatric assessments of the accused.

[68] The first assessment was prepared in 2007 by Dr. Jonathan Gray for the accused’s 2007 sentencing proceedings for sexual interference and invitation to sexual touching. Notwithstanding the facts before the Court in support of the accused’s pleas, the accused indicated to Dr. Gray that he had no intention to meet the girls, that nothing was done at his initiative and he denied all sexual aspects. He blamed, amongst other things, the breakdown of his marriage for his actions.

[69] Dr. Gray concluded that the accused constituted a very low risk of re-offence and made no diagnosis nor found any evidence of pedophilia or a personality disorder. He recommended the accused attend the sexual behaviour clinic at the Royal Ottawa Hospital.

[70] The second assessment was prepared in 2011 by Dr. Paul Fedoroff for the accused’s 2012 sentencing proceedings for possession of child pornography. Dr. Fedoroff had been treating the accused at the Royal Ottawa Hospital’s sexual behavior clinic. The accused told him he had no sexual interest in children or child pornography, that he had no sexual problems, that he did not know there was any child pornography on his laptop and that, notwithstanding his pleas of guilty and having acknowledged the agreed statement of facts for his 2004 offences involving the two 13 years old girls, he was innocent of those allegations.

[71] Dr. Fedoroff characterized the accused’s conduct as consisting at best of a pattern of “persistently poor judgment for which the accused had been repeatedly cautioned.” Dr. Fedoroff referred to information that the accused had been fired from his last job because he had allegedly been buying alcohol for minors and was persistently involved with teenaged girls. Dr. Fedoroff said that while this raised the possibility that the accused suffered from hebephilia, a sexual attraction to peri-pubescent children, his possessing of child pornography increased the likelihood of a diagnosis of pedophilia.

[72] During this 2011 assessment, the accused indicated to Dr. Fedoroff that he was agreeable to returning to the sexual behaviour clinic as this had proven helpful in the past.

[73] The third assessment was prepared in 2014 by Dr. Derek Pallandi for this dangerous offender hearing. Dr. Pallandi also testified.

[74] Dr. Pallandi diagnosed the accused as a pedophile and assessed his risk of sexual recidivism as moderately high. He explained that pedophilia as a lifelong affliction that is not curable; however, interventions can be geared towards management of the offender, including psychological and pharmacological treatment. He said pharmacological treatment is more effective than psychological treatment.

[75] The accused told Dr. Pallandi that in his contacts with some of the young girls, he knew the limitations of “how far things would go with each victim” and their activities “were not forced upon them…it was nudity both ways…it was something they were comfortable with.” He also told Dr. Pallandi that “I never met anybody for a sexual purpose” and “I didn’t really stop it – conversation-wise…but I didn’t push it…”

[76] The accused commented, “I thought I would never get caught.”

[77] Dr. Pallandi noted that the accused tends to minimize the significance of his past activities and that his insight is questionable. He said, at p. 15 of his Report:

Mr. Groves’ insight into his circumstances and need for remediation can be characterized as limited. Despite specialized management and treatment he appears not to have profited in a fashion as to curb his behavior. He remains in denial and portrays himself as a victim.

There has developed an established pattern of behavior largely unencumbered by intervention. I am of the opinion that sexual deviancy is functionally at the core of his risk. His insight is limited and management has been unsuccessful to date.

[78] In terms of managing the accused’s risk, Dr. Pallandi said, again at p. 15:

As noted above, he has demonstrated an intractability of inappropriate sexual behavior, despite lower intensity legal sanction and control.

This, coupled with a formal sexual diagnosis compels a conclusion that much more stringent measures are required to contain and manage Mr. Groves’ risk safely and effectively. Certainly, a much stronger case can now be made for the implementation of sex drive reducing medication that would assist in control of his behavior in a fashion that can be externally verified independent of effort or motivation on Mr. Groves’ part.

[79] Dr. Pallandi listed the requisite elements that need to be in place at the time of the accused’s eventual release from custody. He said that of those required elements, the accused is amenable to alcohol treatment, a housing condition, to seek and maintain suitable employment and to attend for psychological sex offender treatment.

[80] The accused is not amenable, however, to sex drive reducing medication. Dr. Pallandi reported,

He is of the view that sex drive reducing medication is “not necessary at this point” citing his age and recent experiences coupled with his perception of having an enhanced victim understanding and empathy.

[81] Dr. Pallandi’s opinion with respect to managing the accused’s risk in the community is contained on pp. 15-16 of his Report as follows:

At the time of his eventual release from custody, if contemplation is given to Mr. Groves’ management in the community subject to an order, it is my opinion that the requisite elements for an enhanced strategy for managing Mr. Groves’ identified risk, would include:

• Long acting intramuscular sex drive reducing medication. Mr. Groves would have to consent to not only to its institution, but its continuation and monitoring for side effects;

• Substance abuse treatment;

• A residency stipulation – initially at a supervised Correctional Service of Canada facility;

• Contemplation of electronic monitoring;

• A complete and continued prohibition on accessing and using the Internet, in any form;

• A total proscription on contact with any child, in perpetuity.

Absent all of these elements being put into place concurrently, I cannot reasonably assert that Mr. Groves’ risk is assumable in the community at any near point in the future. (underlining added)

[82] Dr. Pallandi concluded his Report at p. 16 by saying:

Despite repeated failures that are readily evident to the court – I remain of the opinion that there is a reasonable possibility of eventual control of Mr. Groves’ behavior in the community; principally because he has not yet been subject to an enhanced/intensive stream of supervision and management such as that offered by the Correctional Service of Canada in the form of a Long Term Supervision Order. In this case, not only would the management plan be of an enhanced intensity, but the tolerance for transgressions would be very limited and the interventions decisive and of more significant consequence.

Further, the relatively less severe victim impact that Mr. Groves’ behavior has engendered to date, would support that such a strategy could reasonably be employed without undue risk to public safety.

E. Victim Impact Evidence

[83] Detective Casselman testified that some of the victims did not wish to provide the Court with their victim impact statements. She said they were too affected by the accused’s sexual offences against them and did not want to have to revisit those events preferring, instead, to move on with their lives.

[84] Victim #4 did provide a statement, as did her mother. Her daughter had been 14 years old at the time. Victim #4 said she looks at herself and sees someone who is not worth anything. She has attempted suicide multiple times and has had to be hospitalized and medicated. She has extremely low self-esteem. She is now 18 years of age. Her family confirms the severe psychological trauma she has endured and continues to endure to this day and that her school and personal life have been turned completely upside down, all as a result of the accused’s actions against her. Her mother wrote that the accused took her daughter’s innocence and her childhood and this is something her daughter will have to deal with her entire life. She said the accused has changed her family forever and they are left to pick up the pieces.

[85] The mother of Victim #13 wrote about the impact of the accused’s actions against her daughter. She said her daughter refused to provide a statement to the Court because she is exhausted thinking about what happened to her. Her mother says their entire family has been affected. She said her daughter had not been very secure about herself and her experience with the accused has set her back even more. She spoke of wanting to do the right thing by providing a statement to the Court but at the same time just wanting to be able to forget about what happened, to bury it as a bad memory. She said she is angry, upset and heartbroken that her daughter had to go through this.

[86] The mother of Victim #16 also provided a statement. Victim #16 was 13 years of age at the time. She spoke of the accused’s luring activities having had serious devastating effects on her daughter and on her family. Her daughter has tried to take her life. She has taken illicit drugs and her schooling has gone downhill. Her mother wrote:

The man that [preyed] on my little girl has destroyed her whole future. I am crushed watching her life spiral downhill like it has and as hard as I try to get my [daughter] back, I know I never will, she has been damaged by all the stress of all this…[she] doesn’t trust anyone at all now, even the people that love her, she has no self-esteem and has used drugs and alcohol to cope.

[87] The mother of Victim #1 also provided a statement. She said she has watched her daughter “struggle with low self-esteem, depression, anxiety and post-traumatic stress disorder. I receive frequent texts from her telling me she can’t breathe and has a feeling something bad is going to happen.” She spoke of the accused’s actions having had a devastating impact on not only her daughter but on her whole family and on herself as a widow. She said, “as a mother I work hard to keep my children safe, self-assured, valued and loved. But most of all safe, that’s the foundation, the baseline, the bottom line to achieve everything else…But when Groves invaded our home through his internet contact with my daughter, he changed all that.” She said the accused’s impact on their sense of security and ability to feel safe in their own home has proven very difficult, if not impossible, to rebuild.

F. Analysis

1. First Issue: Serious Personal Injury Offence

[88] Because the Crown has applied to have the accused declared a dangerous offender under s. 753(1) of the Criminal Code, the first issue in terms of the present offences is whether the accused has been convicted of a serious personal injury offence as defined in s. 752.

[89] Section 752 states,

“serious personal injury offence” means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,

and for which the offender may be sentencing to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

[90] I conclude the accused has been convicted of a serious personal injury offence as defined in s. 752(a)(i) and (ii) in respect of most of his 21 offences. Section 752(b) is not applicable because the accused has not been charged or convicted of those named offences.

[91] The three offences of invitation to sexual touching, the offence of sexual interference and the offence of extortion are all clearly indictable offences that involve “the use or attempted use of violence against the victims” (s.752(a)(i)) and “conduct endangering or likely to endanger the life or safety of the victims or inflicting or likely to inflict severe psychological damage upon them and their families” (s.752(a)(ii)).

[92] The twelve luring offences involve these same elements, with the accused actively and persistently grooming the victims so as to involve them in his sexual offences. His luring activities against these young girls were, as stated in s. 172.1 of the Criminal Code, “for the purpose of facilitating the commission of an offence,” namely a sexual offence. They are clearly, in my view, within the concept of “harm based violence” as explained in R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at paras. 42-44 and 51.

[93] I have no difficulty concluding that these seventeen offences are acts of violence by the accused against each of the victims under s. 752(a)(i) and, at the very minimum, that they constitute conduct inflicting or likely to inflict severe psychological damage upon the victims and their families under s. 752(a)(ii).

[94] The only offences not falling within the parameters of the definition of serious personal injury offence under s. 752(a) are the possession of child pornography offence where the maximum sentence is five years and the three breaches where the maximum sentence is two years.

[95] I find, therefore, that the first issue of whether the accused has been convicted of a personal injury offence is answered, beyond a reasonable doubt, in the affirmative in respect of seventeen of his offences as detailed above, namely the offences of invitation to sexual touching, sexual interference, extortion and child luring.

2. Second Issue: whether the conditions in section 753(1)(a) have been met so that the Court is required to find the accused to be a dangerous offender

[96] Section 753(1)(a)(i) says this Court “shall” find the accused to be a dangerous offender if it is satisfied that any of offences for which he has been convicted is a serious personal injury offence as described in s. 752(a), namely, the seventeen serious personal injury offences set out above, 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…has been convicted forms a part, showing a failure to restrain his…behaviour and a likelihood of …inflicting severe psychological damage on other persons through failure in the future to restrain his …behaviour.” (s. 753(1)(a)(i))

[97] I conclude the evidence establishes beyond a reasonable doubt that these conditions in s. 753(1)(a)(i) have been met.

[98] That evidence speaks for itself. It includes the accused’s repeated, persistent and intractable behavior over more than the last seven years as demonstrated by his criminal record, the present 21 offences involving seventeen young victims and multiple aliases; his continued criminal behaviour while under probation supervision, psychiatric treatment and court orders; his continued denial of any wrongdoing to his probation supervisors, his treating psychiatrists and to the Court; his conditional sentence breaches; the assessment report from Dr. Pallandi diagnosing the accused as a pedophile who presents a moderately high risk of sexual recidivism in the future; and the victim impact evidence, all as reviewed before.

[99] This is an abundance of evidence that these seventeen serious personal injury offences considered together with the accused’s 2004 and 2006 offences and his behavior while under supervision, treatment and court orders establish a pattern of repetitive behaviour by the accused over at least seven years, compelling the conclusion that the accused constitutes a threat to the safety and physical and mental wellbeing of other persons. His pattern has been one of repetitive offending sexual behaviour while lying to his probation supervisors and the Court. The victim impact evidence is graphic illustration of his inflicting psychological damage on young girls. He has deliberately failed to restrain his behaviour in the past and there is certainly a likelihood that this damage will continue should he fail to restrain his behaviour in the future.

[100] I am satisfied, referring to the wording of s. 753(1)(a)(i), therefore, that the accused constitutes a threat to the safety and physical and mental wellbeing of other persons based on this evidence that establishes a pattern of repetitive behaviour by him and shows he has failed to restrain his behaviour and there is a likelihood of his inflicting severe psychological damage on other persons through failure in the future to restrain his behaviour.

[101] On the basis of the same evidence as reviewed before, I conclude that the evidence establishes beyond a reasonable doubt that the conditions set out in s. 753(1)(a)(ii) have also been met.

[102] Again, the evidence speaks for itself. I am satisfied, referring to the wording of s. 753(1)(a)(ii), that the accused constitutes a threat to the safety and physical and mental wellbeing of other persons based on this evidence that establishes a pattern of persistent aggressive behaviour by him and shows a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour. His persistence, aggressiveness and indifference is highlighted by his denial of any wrongdoing to his probation supervisors, his psychiatrists and the Court, all the while engaging in sexual wrongdoing for which he had already been sanctioned.

[103] The accused’s unlawful actions over the years can be characterized in a number of ways, all serving to aggravate his sentence. He carefully planned his onslaught on young girls over the Internet. He knew their ages. He knew what he was doing was unlawful. He chose to use numerous aliases and numerous email accounts. He had above average computer knowledge. He tried to cover his tracks by changing the time on his computer, utilizing anti-computer forensic software and deleting large amounts of data. He was manipulative in the extreme with his victims and with his medical and probation supervisors including the Court. In terminating the accused’s conditional sentence after six separate breaches, Justice Rutherford of this Court referred to the accused’s “web of deception”. The accused knew how to deceive and implemented his web of deception notwithstanding court orders prohibiting him from contacting young girls or accessing the Internet. He obsessively dedicated his time to propositioning young girls for sexual acts over the Internet, not only considering the number of contacts with each victim, and for some of them it amounted to thousands of contacts, but also considering the content of some of his chats in terms of his repeated and unyielding requests for sexual acts. His sexual deviancy preoccupied him. He became socially isolated. His deviant behaviour escalated over the years. With the aid of the Internet he became a worldwide sexual predator of young girls. He groomed them by gaining their trust and respect, making them comfortable and then satisfying his sexual deviancy. Many of them were too young to understand what was going on or even, in the beginning, to be suspicious.

[104] I find, therefore, that the second issue is also answered beyond a reasonable doubt in the affirmative and this Court is required by s. 753(1)(a) to find the accused to be a dangerous offender.

[105] I find the accused to be a dangerous offender, therefore, under each of subsections 753(1)(a)(i) and (ii).

[106] Section 753(1)(b) is not applicable as none of the offences are serious personal injury offences under s. 752(b) as explained before.

[107] Section 753(1.1) is also not applicable. In 2007 the accused was sentenced to two years less one day for sexual interference and sexual touching and not to a sentence of at least two years or more for each conviction, as is required for this section to be operative.

3. Third Issue: the Appropriate Sentence pursuant to sections 753(4) and 753(4.1)

[108] Under s. 753(4) there are three sentencing options for a person found to be a dangerous offender: an indeterminate sentence of detention in a penitentiary; a determinate sentence of detention of at least two years in a penitentiary followed by a long term supervision order of no more than 10 years; and another sentence.

[109] Pursuant to s. 753(4.1), however, there is a presumption in favour of an indeterminate sentence of detention for an offender found to be a dangerous offender unless the court “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) [a determinate sentence of at least two years followed by a long-term supervision order of a maximum of 10 years] or (4)(c) [another sentence] will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” (s. 753(4.1))

[110] The next evidentiary consideration is, therefore, mandated by s. 753(4.1) and it is to determine whether the evidence on this application satisfies this Court that there is a reasonable expectation that a sentence less than an indeterminate sentence of detention will adequately protect the public against the commission by the accused of a serious personal injury offence (underlining added).

[111] This evidentiary threshold for the consideration of a lesser sentence than an indeterminate sentence of detention has not been referred to by either counsel on this application or by Dr. Pallandi, all of whom have only made reference to a consideration of whether there is a “reasonable possibility of eventual control of the risk in the community.”

[112] While I recognize that “reasonable possibility of eventual control of the risk in the community” is one of the conditions that must be satisfied before an offender can be found to be a long-term offender under s. 753.1(1), because of the operation of s. 753 and the finding that the accused is a dangerous offender, s. 753.1 has been rendered inapplicable. Section 753(5) also makes this clear in stating that if the court does not find the offender to be a dangerous offender, the court may turn to the application of s. 753.1 in considering whether the offender ought to be found to be a long-term offender.

[113] This is all to say that the consideration under s. 753.1(1)(c) of “reasonable possibility of eventual control of the risk in the community” is not applicable where, as for the accused, the offender has been found to be a dangerous offender. The only consideration is that mandated by s. 753(4.1), namely, whether there is a reasonable expectation that a lesser sentence than indeterminate detention will adequately protect the public against the commission by the accused of a serious personal injury offence.

[114] Again, on this issue the evidence on this application speaks for itself as summarized before. In my view there is no evidentiary basis for a conclusion of there being a “reasonable expectation” that a sentence less than an indeterminate sentence of incarceration in a penitentiary will “adequately protect the public against the commission by the accused of a serious personal injury offence.”

[115] I make this finding primarily based on Dr. Pallandi’s assessment report in the context of all of the evidence of the application. His report has accurately considered and reflected that evidence. I accord Dr. Pallandi’s opinions substantial weight and specifically regarding his diagnosis of pedophilia, his assessment that the accused has questionable and limited insight, and his comment on the intractability of the accused’s long standing inappropriate sexual behaviour that has not been able to be successfully managed to date, all of which led him to assess the accused as being a moderately high risk for recidivism in the future.

[116] And, as clearly stated by Dr. Pallandi in his report at p. 16, if the accused were to be released and successfully managed in the community, all the necessary elements listed by Dr. Pallandi need to be put in place concurrently and including, most importantly, long acting intramuscular sex drive reducing medication. The accused needs to consent to this medication. The accused has indicated he would not consent at this time.

[117] Dr. Pallandi does conclude, again at p. 16 as referred to before, that there is a “reasonable possibility of eventual control of Mr. Groves’ behaviour in the community” principally after he has had intensive supervision and management by the Correctional Service of Canada in the form of a long-term supervision order.

[118] While this is no longer the applicable legislative consideration where there has been a dangerous offender finding, Dr. Pallandi’s opinion in this regard merits factoring into a consideration of the presently applicable threshold test of whether there is a reasonable expectation that a lesser sentence than an indeterminate sentence will adequately protect the public against the commission by the accused of a serious personal injury offence. As commented upon in R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 36, the possibility of successful treatment is of limited application in determining whether a person is a dangerous offender but it is significant in choosing the appropriate sentence.

[119] I have concluded that Dr. Pallandi’s opinion regarding the efficacy of a long-term supervision order does not allow for a conclusion that there is a reasonable expectation that such a sentence would adequately protect the public from the accused’s dangerousness.

[120] This is because, as Dr. Pallandi has made clear, the accused is of a moderately high risk to reoffend. For the accused to be able to be successfully managed in the community under a long-term supervision order he would need to take for his lifetime, concurrently with all the other necessary elements governing his release as listed in Dr. Pallandi’s report, long acting intramuscular sex drive reducing medication. This medication is a critical control element over the accused in the community, Dr. Pallandi states; however, the accused is not amenable to it at the present time. There is no assurance he would ever be continuously amenable to taking it for his lifetime.

[121] With reference to the other elements of a release plan that would need to be put in place concurrently, electronic monitoring in this Internet age would provide minimal control over the accused in his residence given his computer expertise and past behaviour. For the same reasons, a complete prohibition on accessing and using the Internet would be exceedingly difficult to monitor. Neither is there any evidence that the accused is motivated to comply with release conditions, particularly in light of his past flaunting of release and court conditions.

[122] While I do acknowledge the accused’s pleas of guilt as an acceptance of responsibility for his offences and, perhaps, also as a signal that he is becoming motivated to change his offending behaviours, this circumstance of his pleas does not amount at this time to sufficient evidence of there being a “reasonable expectation” that a lesser sentence than an indeterminate sentence would provide adequate protection from his recidivism.

[123] The accused is a dangerous offender. He requires strict controls during his lifetime to be able to protect the public from his dangerousness. If, after serving a determinate sentence, he were to be released in the community under a long-term supervision order with conditions that he comply with treatment as recommended by his treating psychiatrists regarding taking sex drive reducing medication together with all the other necessary release elements referred to by Dr. Pallandi, and if he did not comply with any of those conditions at any time, the severest sanction for his non-compliance would be a charge of breach that supervision order: R. v. Charbonneau, 2007 O.J. No. 3609 (SCJ), at paras. 190 and 194. This would not adequately protect the public. As his conditional sentence supervisor testified, on several occasions during her monitoring the accused’s conditional sentence when she could see that he was deteriorating, her hands were tied because a breach could not be substantiated.

[124] I conclude it would amount to mere hope and speculation at this point in time to regard the possibility of successful management of the accused’s dangerousness in the community as a “reasonable expectation.” Those words require an evidence-based conclusion. There is no evidence before me to contribute to such a conclusion.

[125] In all of the accused’s circumstances it may well be that at some future time he will be able to be released by the Parole Board of Canada into the community. However, given the total absence of evidence that a lesser sentence would adequately protect the public, I conclude that a release by the Parole Board should only occur while the accused is subject to an indeterminate sentence of detention. The Parole Board may determine that strict parole conditions mirroring all of the release elements referred to by Dr. Pallandi are appropriate. While the appropriate release conditions are to be left to the Parole Board, those conditions need to be paired with an indeterminate sentence of detention to be able to protect the public from the accused’s dangerousness during his lifetime. In this way any non-compliance with parole conditions and specifically, any non-compliance with a treatment regime would place the accused back into detention.

[126] As stated in R. v. R.M., 2007 ONCA 872, 228 C.C.C. (3d) 148, at paras. 125 and 127, the Parole Board will have considerable advantage in making a release decision in the future for the accused. It will be able to evaluate his progress in the institution and whether he has developed true insight into his condition. While there is no evidence at the present time of a reasonable expectation of successful management of the accused on release, I do not rule this out as a future possibility. And as emphasized in Steele v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385, at paras. 67, 71, 79 and 83, the Parole Board has an obligation to ensure that dangerous offenders are not “warehoused”.

[127] I impose on the accused, therefore, a sentence of detention in a penitentiary for an indeterminate period.

[128] Pursuant to s. 760, I order that a copy of all reports and testimony given by psychiatrists and other experts, the transcript of the sentencing hearing and these Reasons be forwarded to the Correctional Service of Canada for information.

Justice L. Ratushny

Released: June 8, 2015

COURT FILE NO.: CR-12-5077

DATE: 2015/06/08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

WILLIAM GROVES

Respondent

REASONS FOR JUDGMENT

Ratushny J.

Released: June 8, 2015