COURT FILE NO.: 0449-2013

DATE: 20150706

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL FAROUK

Jackie Garrity, for the Crown

Stephenie Heyens, for the Defendant

HEARD: April 27 to 30, May 1, May 11 to 15, 20, 21, June 4, 11, July 6, 2015

J. WILSON J.

REASONS FOR SENTENCE

Contents

The Dangerous Offender Application. 3

Statutory Framework for a Declaration of Dangerous Offender 3

Sentencing Regime for a Dangerous Offender 5

Some Facts about LTSO and Indeterminate Sentences. 6

Positions of the Crown and the Defence. 7

The Issues. 9

The Witnesses and an Overview of their Evidence. 9

Chronology of Significant Periods in Mr. Farouk’s Life. 14

The Predicate Offences. 14

Mr. Farouk’s Prior Criminal History. 15

Mr. Farouk’s Personal History until his Incarceration in July 2001. 16

Institutional History: 2006 to April 2010. 19

Mr. Farouk’s Release upon Warrant Expiry in April 2010 to his Arrest in June 2013. 23

Mr. Farouk’s 810.2 Supervision Order and Terms. 23

Deterioration and Return to Partying Lifestyle. 24

Dr. Klassen’s Diagnosis. 25

Does Mr. Farouk have a personality disorder?. 25

Problem of Overconfidence. 27

Substance Abuse. 27

Sexual History and Probable Preference for Sexual Coercion. 28

Summary of Mr. Farouk’s Actuarial Test Results. 30

PCLR.. 31

Static 99-R.. 31

SORAG.. 32

Stable 2007. 34

Conclusions for Risk of Reoffending based upon Actuarial Studies. 34

Declaration as a Dangerous Offender 35

The meaning of “a reasonable expectation” that a long term supervision order “will adequately protect the public” as those terms are used in s. 753(4.1) of the Criminal Code. 35

Meaning of “a reasonable expectation”. 38

The meaning of “evidence of treatability”. 38

Meaning of “a lesser measure will adequately protect the public”. 40

Treatability. 40

Evidence about Treatment Models Presently Available in the Federal System.. 40

Programs Available in the Community. 41

The Crown Position on Treatability. 42

The Defence Position on Treatability. 43

Evidence Relevant to Treatability: Institutional History. 44

Institutional Infractions. 44

Completion of High School 45

Participation in Treatment Programs. 45

Work History. 47

Treatability – Analysis. 48

The Actuarial Tests and Treatability. 48

The Diagnosis and Treatability. 49

Undertaking to Take Medication. 50

Mr. Farouk’s Attitude towards Treatment 51

Conclusions as to Treatability. 54

Is there a reasonable expectation that the public can be adequately protected by a period of incarceration followed by a LTSO?. 54

The Effect of Age on the Assessment of Risk and the Question of Age Desistance. 55

Supervision of LTSO: Consequences of breach of condition of LTSO v. indeterminate sentence and the issue of medication. 56

The Law as to Ability to Impose Conditions to take Medication as part of Treatment 57

Conclusions as to Protection of the Public. 59

Conclusions. 65

SCHEDULE “A”. 68

The Dangerous Offender Application

[1] In a trial before a jury, Mr. Farouk was convicted on May 26, 2014, attempting to choke for the purpose of committing a sexual assault, sexual assault and uttering threats to cause bodily harm.

[2] In this sentencing proceeding, the Crown seeks a declaration that Mr. Farouk is a dangerous offender, and takes the position that he should be subject to an indeterminate sentence.

[3] The defence concedes that Mr. Farouk meets the criteria of a dangerous offender, but argues that the appropriate sentence would be a penitentiary term followed by a ten year Long Term Supervision Order (“LTSO”).

[4] Mr. Farouk was 32 years old at the time of these most recent offences. He is now 34. He has a history of two prior convictions for sexual assaults upon prostitutes that occurred in October 2000, when he was 19 years old, and July 2001, at the age of 20. He was convicted in 2005, in a trial before a jury, of the charges arising out of the October 2000 incident: sexual assault with a weapon (an exacto knife), armed robbery and uttering threats to cause death or bodily harm. He was convicted on November 15, 2003, in a trial before a jury, of the charges arising out of the July 2001 incident: sexual assault, kidnapping and robbery. After serving a total of nine years in custody for these offences, he was released into the community in April 2010 at his warrant expiry date. He was compliant with the terms of the s. 810.2 supervision order for one year. He then slipped back to his partying lifestyle, which included drinking and taking drugs. He committed the predicate offences on May 25, 2013, three years after his release.

Statutory Framework for a Declaration of Dangerous Offender

[5] The offences forming the basis of the Crown’s application occurred after July 2, 2008, and therefore the amended dangerous offender provisions in s. 753(1) of the Criminal Code,R.S.C. 1985, c. C-46, s. 753; 1997, c. 178, s. 4; 2008, c. 6, s. 42 (the “Criminal Code”), apply to this application.

[6] The defence does not dispute that at the date of this sentencing hearing, the Crown has proven the elements of ss. 753(1)(b), as well as ss. 753(1)(a)(i) and (ii), beyond a reasonable doubt, and that Mr. Farouk is therefore appropriately designated as a dangerous offender.

[7] It is not disputed that s. 753(1.1) is engaged, such that it is presumed that Mr. Farouk is to be designated as a dangerous offender under s. 753(1)(a) or (b) based upon his past offences and the index offences. The offences of choking for the purpose of facilitating a sexual assault and sexual assault are primary designated offences for which it would be appropriate to impose a sentence of two years or more. Further, the two prior convictions in 2000 and 2001 are primary designated offences where Mr. Farouk was sentenced to at least two years’ imprisonment. Therefore, Mr. Farouk is presumed to meet the criteria as a dangerous offender, unless the contrary is proved on a balance of probabilities. Defence counsel does not dispute that the presumption applies and has not been rebutted.

[8] As Mr. Farouk is a sexual offender, s. 753(1)(b) of the Criminal Code applies. The Crown must prove beyond a reasonable doubt the following four elements stipulated in s. 753(1)(b) for Mr. Farouk to be declared a dangerous offender:

• The offender was convicted of a serious personal injury offence as defined in subparagraph (b) of the definition of a serious personal injury offence in s. 752 of the Criminal Code;

• The offender, by his conduct in sexual matters, has shown a failure to control his sexual impulses;

• The offender in the future is likely to show a similar failure; and

• The offender, through that future failure, is likely to cause injury, pain, or other evil to any person.

[9] The defence does not dispute that these four elements have been proved and that Mr. Farouk meets the criteria as a dangerous offender pursuant to s. 753(1)(b).

[10] In the alternative, the Crown also relies on ss. 753(1)(a)(i) and (ii) of the dangerous offender provisions of the Criminal Code. For these sections to apply, the Crown must prove beyond a reasonable doubt the following elements:

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,

(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 […]

[11] Once the Crown has proven beyond a reasonable doubt the elements of one of the dangerous offender provisions is met, I am mandated, in accordance with the use of the imperative “shall” in s. 753(1), to declare Mr. Farouk to be a dangerous offender.

[12] I therefore declare Mr. Farouk to be a dangerous offender, as the Crown has proved beyond a reasonable doubt that he meets the criteria of three of the four dangerous offender provisions, including ss. 753 (1)(a)(i) and (ii), and 753(1)(b), but not s. 753(1)(a)(iii).

Sentencing Regime for a Dangerous Offender

[13] Section 753(4) sets outs the available sentencing options once the declaration of a dangerous offender has been made:

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.

[14] Section 753(4.1) confirms that the court shall impose an indeterminate sentence unless it is satisfied by the evidence adduced at the hearing 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.” [Emphasis added]

[15] The defence acknowledges that a fixed sentence is not a viable option in this case, and seeks a fixed penitentiary sentence of between two and five years, followed by a 10 year LTSO.

[16] In summary, the Crown has the onus of proving beyond a reasonable doubt that Mr. Farouk meets the dangerous offender criteria: R. v. F.E.D., 2007 ONCA 246, 2007 ONCA at para. 52, 84 O.R. (3d) 721, leave to appeal to the S.C.C. refused, [2007] S.C.C.A. No. 568. The defence has conceded that the dangerous offender criteria are met, and there is no dispute that this onus has been met.

[17] Once the preliminary onus is met by the Crown, the issue before the court is whether, based on the whole of the evidence adduced at the dangerous offender hearing, there is a reasonable expectation that a lesser sentence than indeterminate detention in a penitentiary will adequately protect the public: s. 753(4.1).

[18] In determining whether that reasonable expectation exists, the court weighs and considers the evidence adduced, but neither party bears a legal burden of proof: R. v. F.E.D., supra at paras. 53-55; R. v. J.K.L., 2012 ONCA 245 at para. 75, [2012] O.J. No. 1716; R. v. Bebonang, 2012 ONSC 195 at paras. 76-77, [2015] O.J. No. 105.

[19] I am required to impose a sentence of detention in a penitentiary for an indeterminate period unless I am satisfied by the evidence adduced during the hearing of the application, on a balance of probabilities, that there is a reasonable expectation that a lesser measure [in this case a penitentiary term followed by a ten year LTSO] will adequately protect the public against the commission by the offender of a serious personal injury offence.

[20] The primary issue in this proceeding is therefore whether an indeterminate sentence should be ordered, or whether a fixed sentence followed by a LTSO would adequately protect the public.

Some Facts about LTSO and Indeterminate Sentences

[21] Ms. Marlene Do Rego, an experienced parole officer from Correctional Service Canada, testified about process and programs available for a person such as Mr. Farouk, including explaining the difference between supervision available for those with an indeterminate sentence, compared to those under a LTSO. She explained the procedure and consequences if there was a breach of conditions, or if there was a concern that there may be a potential increase in risk, and what measures can be taken to protect the public under either a LTSO or an indeterminate sentence. Her evidence was fair, balanced and of significant assistance.

[22] Ms. Do Rego confirmed that if Mr. Farouk receives an indeterminate sentence, he would be technically eligible to apply for day parole four years from the date of his arrest for the predicate offence, in 2017. He is eligible for full parole seven years from the date of his arrest, in 2020. Every two years thereafter, there is a mandatory review of dangerous offenders by the National Parole Board for those who are subject to an indefinite sentence.

[23] Ms. Do Rego filed statistics provided by Correctional Service Canada and designed to help judges understand the implication of a dangerous offender designation. Statistics provided by Correctional Service Canada confirm that theoretical eligibility for release for dangerous offenders and reality are two radically different scenarios.

[24] Statistics compiled by Correctional Service Canada indicate that a dangerous offender on an indeterminate sentence serves an average of 11 years in custody before being released to the community. The average is in excess of 15 years in custody prior to release for dangerous sexual offenders. Release includes day parole, full parole, statutory release or warrant expiry date. Sexual offenders comprise 71% of those categorized as dangerous offenders.

[25] The most up to date statistics confirm that presently there are 600 dangerous offenders across Canada, and that as of April, 2014, 558 of the 600 are incarcerated, 40 are being supervised in the community and 2 are detained. Dangerous offenders granted full parole, as opposed to day passes, are at .95% (less than one percent).

[26] There have been 500 LTSO imposed since its introduction to the Criminal Code in 1997. Sexual offenders comprise 80% of this group.

[27] Since the 2008 amendments, there is no separate sentencing category of LTSO as all of these offenders are now declared to be dangerous offenders. Some of the offenders declared to be dangerous offenders may be sentenced to a penitentiary term followed by a LTSO if the conditions of s. 753(4.1) are met. All others receive an indeterminate sentence.

Positions of the Crown and the Defence

[28] The Crown argues that an indeterminate sentence is necessary to control Mr. Farouk due to his history of lying, manipulation, failure to accept responsibility, inability to function under structure limiting his freedom, lack of insight and remorse, and his problems with binge drinking and consumption of drugs and partying.

[29] Mr. Farouk is presently 34 years of age. The evidence of both Dr. Klassen and Dr. Looman confirmed that there is a radical reduction in risk in sexual offenders who have a history of offending against female strangers at the age of 50, down to approximately 10%, followed by a reduction of risk to virtually zero by the time the offenders reach age 60. This age-related reduction of risk does not apply to pedophiles, or to those who perpetrate domestic violence.

[30] It is the Crown’s position that Mr. Farouk has a personality disorder making him more resistant to treatment, combined with an alcohol use disorder, and that he has a sexual paraphilia preferring sexual coercion. Given this cluster of negative factors, if a penitentiary term is contemplated followed by a LTSO [which is not the Crown’s position], then Crown counsel suggests that an additional 16 year sentence followed by a ten year LTSO is required to adequately protect the public. This would ensure that Mr. Farouk is closely monitored to age 60, when the statistics and expert evidence confirm that the risk of recidivism of sexual assault against adult strangers is reduced to zero.

[31] Defence counsel argues that Mr. Farouk’s circumstances meet the test of s. 753(4.1), in that there is a reasonable expectation that a LTSO imposed under ss. 753(4)(b) or (c) will adequately protect the public against the commission by Mr. Farouk of a further serious personal injury offence.

[32] The defence concedes that Mr. Farouk is, and always will be, at moderate to high risk to reoffend based upon the actuarial test results under standard release conditions such as parole. The actuarial measures, apart from age, are static.

[33] The defence does not dispute that if a LTSO is ordered, Mr. Farouk will need initially to be subject to strict conditions in the community to reduce any risk that he poses.

[34] It is the defence position that Mr. Farouk has positive features including that he is of normal intelligence; as Dr. Klassen said in his testimony, “he is a reasonably bright guy.” While incarcerated, he functioned well in treatment and received very positive reports of progress made in the High Intensity Sex Offender Program as well as the Medium Intensity Program. He completed his high school with good marks while incarcerated, and had a positive work history while at Bath Institution. He performed well once released under the minimal supervision offered by a s. 810.2 order.

[35] All of Mr. Farouk’s offences have taken place while he is under the influence of alcohol and drugs (marijuana and cocaine). He is a binge drinker, and alcohol is a gateway to consumption of drugs, such as cocaine. He has never received any treatment focusing on substance abuse. Everyone is agreed that Mr. Farouk needs treatment for this problem, and that taking Antabuse and regular testing for drugs would significantly reduce Mr. Farouk’s risk to reoffend. Mr. Farouk testified that he is willing to take Antabuse if prescribed and that he is committed to refraining from consumption of alcohol and drugs.

[36] Mr. Farouk has testified that he is willing to take anti-androgen medication to reduce his sex-drive upon the recommendation of his psychiatrist, both in the institution prior to his release and in the community once released.

[37] The Crown challenges the evidence of Mr. Farouk’s willingness to take drug treatment to reduce his risk as not sincere and suggests that it is an attempt to manipulate this sentencing process.

[38] As well, Mr. Farouk has a probable paraphilia of preferring coercive sexual relations that has not been specifically targeted in treatment. With appropriate treatment, it is the defence position that Mr. Farouk’s risk in this respect can be controlled in the community.

[39] There are some modest disputed issues between the Crown and the defence that have an impact upon Mr. Farouk’s treatability.

[40] The defence contends that conditions should be imposed upon Mr. Farouk until the age of 50 to ensure that the public is adequately protected.

[41] Mr. Farouk has already served two years in custody. The defence suggests that an additional sentence of two to five years, followed by a 10 year LTSO, followed by a two year 810.2 supervision order, would take Mr. Farouk to age 50, when his risk of reoffending due to his age and lessons learned would be drastically reduced. In other words, the defence takes the position that these measures meet the test in s. 753(4.1) of 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 a serious personal injury offence.”

[42] Mr. Farouk was released in 2010 after 9 years of incarceration on his warrant expiry date. After the end of the one year 810.2 order, Mr. Farouk had no supervision, no structure and no maintenance treatment. Mr. Farouk was compliant and cooperative when he was on an 810.2 supervision order, and began to slide back to his partying lifestyle after that order expired. He has a loving family, but they are unable to adequately provide structure and supervision.

[43] Although Mr.Farouk has failed to respect various terms of bail while living with his family, it is the position of the defence that if he is released into the community gradually, with strict conditions, continued treatment and taking sex-drive reducing medication and Antabuse if prescribed, the evidence discloses that Mr. Farouk can be a productive member of society whose risk to others will be reduced to an acceptable level.

The Issues

[44] The following factual and legal issues have been raised in this proceeding:

• Does Mr. Farouk have a general personality disorder with anti-social and narcissistic features or does he have some traits of a general personality disorder, as well as anti-social and narcissistic personality disorder?

• Does Mr. Farouk have a probable preference for sexual coercion?

• What is Mr. Farouk’s appropriate PCLR score, and how does that score affect the assessment of risk?

• Does Mr. Farouk’s testimony that he is willing to take Antabuse and anti-androgen medication affect the assessment of risk?

• What is the meaning of the post-2008 legal test in s. 753(4.1) of the Criminal Code of “a reasonable expectation” that a LTSO would “adequately protect the public”?

• What is the meaning of “evidence of treatability” for the purpose of this hearing?

• Does the evidence in this case, considered as a whole meet these legal tests stipulated in s. 753(4.1) of the Criminal Code?

The Witnesses and an Overview of their Evidence

[45] The Crown called many witnesses in this sentencing who had had contact with Mr. Farouk prior to, during and after his incarceration. As well, the Crown filed 21 volumes of documents outlining Mr. Farouk’s lengthy institutional and criminal history.

[46] Dr. Phillip Klassen, a forensic psychiatrist, conducted an assessment of Mr. Farouk on behalf of the Crown and wrote a comprehensive report dated December 5, 2014. He reviewed Mr. Farouk’s history in detail, and summarized the various risk assessment tests performed both previously and by him during the assessment. He met with Mr. Farouk on four occasions for a total period of about six hours. Dr. Klassen is a well-respected and very experienced forensic psychiatrist who has testified in over 150 dangerous and long-term offender proceedings.

[47] Dr. Klassen’s professional experience is primarily teaching medical students at the University of Toronto, administration and the practice of forensic psychiatry, with risk assessments comprising a large part of this aspect of his work. As well, he has extensive experience in both assessing and treating sex offenders, having served as the Head of the Sexual Behaviours Clinic Treatment Program at the Centre for Addiction and Mental Health from 2004 to 2009.

[48] It was clear that he had a good rapport with Mr. Farouk, and it appears that Mr. Farouk generally was candid and honest in the information he shared with Dr. Klassen, although not with respect to the predicate offences. When Mr. Farouk testified, he confirmed that he trusted Dr. Klassen.

[49] Dr. Klassen was fair in the evidence he gave, and did not pronounce on the ultimate question that I must determine as to whether a fixed sentence and LTSO will adequately protect the public. He confirmed that Mr. Farouk met the criteria in the dangerous offender provisions and that his opinion, based upon the actuarial tests, is that presently Mr. Farouk is at a high risk to reoffend. The defence does not challenge this aspect of Dr. Klassen’s evidence.

[50] Dr. Klassen testified about the challenges that Mr. Farouk would face in the community. He confirmed his opinion that Mr. Farouk has a personality disorder with anti-social and narcissistic features. He was firm as to the validity of his revised PCLR score of 25.5 to 26.5. He originally scored Mr. Farouk a 29.5 but acknowledged in both evidence-in-chief and in cross-examination that the score could be adjusted based on his downward sliders to 25.5 to 26.5, which places Mr. Farouk in the moderate category based upon the PCLR risk assessment. He confirmed that if Mr. Farouk took Antabuse and anti-androgen medication, that his risk of offending would dramatically decrease. He further testified as to the dramatic reduction of sexual offending by age 50 regardless of treatment, and the virtual elimination of sexual offending against adult strangers by age 60.

[51] He confirmed, in the final paragraph of his report, that with respect to community supervision, Mr. Farouk needs to be “contained” to approximately age 50 at which point “perpetration of sexual assault upon adult female strangers declines very significantly.” He discussed the need for external controls upon Mr. Farouk, such as incarceration, taking sex-drive reducing medication and a residency requirement in the community. Dr. Klassen also confirmed the need for Mr. Farouk to improve and develop his internal controls through treatment, but confirmed that there is no quick fix to Mr. Farouk’s problems and that the best approach was longitudinal and multifaceted. His evidence in general was balanced and fair.

[52] Dr. Goger, a forensic psychiatrist was potentially retained for the defence. He reviewed Dr. Klassen’s report and the materials provided by the Crown, and met with Mr. Farouk. He did not file a report, and did not testify or participate in the proceeding.

[53] The defence called Dr. Jan Looman as a defence witness. He has a doctorate in psychology and has worked for years in the correctional system with the treatment of sex offenders. He has been instrumental in designing the treatment programs used for sex offenders across Canada. He is not presently involved in the new treatment programs that I will describe later in these reasons.

[54] Dr. Looman was the head of the High Intensity Sex Offender Treatment Program that Mr. Farouk participated in from September 2007 to May 2008. He closely supervised Anita Cumbleton, a master’s level psychologist who performed the assessment of Mr. Farouk prior to treatment, and was his group leader for the seven-month program. Dr. Looman reviewed, approved and co-signed the reports and assessments prepared by Anita Cumbleton.

[55] Dr. Looman conducted a file review before testifying, but does not specifically remember Mr. Farouk when he was in the High Intensity Sex Offender Program.

[56] Dr. Looman has spent his lengthy career in the design of treatment programs and the treatment of sex offenders. His approach in assessments is with the objective of treatment in mind, rather than testifying in a proceeding such as this. Dr. Looman has extensive experience in working with and treating sex offenders, but limited experience in conducting risk assessments for the purpose of dangerous offender proceedings. He testified about the differences in approach between forensic psychiatrists and forensic psychologists. He provided information about programs available in the prison at the time of Mr. Farouk’s incarceration. He also testified about programs and supervision presently available in the community for offenders such as Mr. Farouk. He was of the view that Mr. Farouk needs structure, supervision conditions and treatment, but not that he needed to be incarcerated indefinitely. He was a credible and forthright witness.

[57] There is a modest dispute about Mr. Farouk’s score on the Hare Psychopathy Checklist – Revised test (the “PCLR”). The defence relies on a lower assessment compiled by Ms. Anita Cumbleton and Dr. Looman. Dr. Looman and Ms. Cumbleton gave Mr. Farouk a score of 19 in 2007, a score which they acknowledged needed some adjustments upwards to take into account his present status. The Crown relies on a higher score, as assessed by Dr. Klassen, of 29.5. In his evidence, Dr. Klassen acknowledged potential adjustments downwards from the score of 29.5 outlined in his report, to 25.5 to 26.5.

[58] In his testimony, Dr. Looman adopted the PCLR score of Anita Cumbleton completed in November 2007, but confirmed based upon the passage of time and available new information, that the present score should be adjusted upwards such that it is closer to Dr. Klassen’s adjusted score of 25.5 to 26.5.

[59] The parties dispute whether Mr. Farouk meets the diagnosis of a personality disorder. Dr. Klassen testified that Mr. Farouk has a general personality disorder with anti-social and narcissistic traits. Dr. Looman testified that he has some of the traits of a general personality disorder, and definitely has some problematic anti-social and narcissistic traits, but that he does not meet threshold for a diagnosis of a personality disorder.

[60] There is also an issue whether Mr. Farouk has a preference or paraphilia for sexual coercion. Dr. Klassen testified that he probably had this sexual paraphilia whereas Dr. Looman expressed doubt on this issue based upon his history of non-coercive relationships with other women.

[61] It was clear and refreshing that both experts had high regard for each other. However, Dr. Klassen was less optimistic than Dr. Looman about Mr. Farouk’s capacities in the community given his reoffending after participating in two programs for sex offenders, his unrealistic attitude, his duplicity and his cluster of diagnostic problems.

[62] Dr. Looman was more optimistic and confirmed that Mr. Farouk needs treatment and structure both while he is incarcerated and upon his release. He testified that Mr. Farouk made gains while in treatment prior to his release. What was missing when Mr. Farouk was released in 2010 was the necessary structure and supervision. Mr. Farouk did not use the skills he learned in treatment, and slipped back into his partying lifestyle.

[63] Dr. Looman was clear in his view that Mr. Farouk did not require indefinite incarceration to adequately reduce his risk to the community. It was his view that Mr. Farouk needs a period of incarceration with continued treatment and when released into the community, he requires monitoring and structure on a graduated basis, beginning with a highly structured environment and modified over time based upon compliance.

[64] There was much overlap and consistency in the testimony of Dr. Klassen and Dr. Looman, although there were some modest differences of opinion as outlined above.

[65] My only concern in the evidence of Dr. Klassen, is that he did not consider in any detail the measures that are available to supervise and monitor compliance under a LTSO, as well as the significant consequences to an offender if there is a breach, compared to the conditions of release for Mr. Farouk in 2010. In his evidence, Dr. Looman focused on available community supervision combined with treatment underpinning his opinion that Mr. Farouk needs monitoring, not indefinite incarceration.

[66] The Crown called various witnesses from Correctional Service Canada who had been involved in conducting assessments, treatment or supervision of Mr. Farouk during his federal incarceration from the time of sentencing in 2005 until his release in 2010. The general tenor of their evidence was optimistic: Mr. Farouk was motivated and participated well in programs offered. I will review the substance of their evidence later in these reasons.

[67] Having the benefit of hearing evidence from all of the individuals that worked with Mr. Farouk during his four and a half years of incarceration prior to his release in April 2010 was very helpful in providing context and humanity to the 21 volumes of documents filed.

[68] I also heard evidence from Mr. Farouk’s ex-wife, Shazeela Yacoob. What I found telling in her evidence was that clearly she had loved Mr. Farouk early in their relationship. She reported no sexual abnormalities or preference for coercive sexual relations, neither in her discussions with Dr. Woodside in advance of his report completed in 2005, nor in her evidence at this hearing. I accept that during their relationship of two plus years, there was one incident where Mr. Farouk, in frustration and in front of others, hit her on the back of the head while they were in a car. There were no other allegations of domestic violence. Clearly the relationship was complicated, as Mr. Farouk, 19 years old when the relationship began, was not emotionally mature enough to be a responsible father and husband. The offences in 2000 and 2001 occurred when Mr. Farouk was married to Ms. Yacoob.

[69] The defence called evidence from Mr. Farouk’s mother and brother. Dr. Klassen described Mr. Farouk’s mother as an enabler, and ineffective when it came to discipline as Mr. Farouk was growing up. Her evidence confirmed her love and support for her son, but also confirmed the opinion of Dr. Klassen that historically and presently she is not able to control Mr. Farouk.

[70] Mr. Farouk initially did not testify in the sentencing. Late in the day, after completion of arguments, including written submissions, Mr. Farouk expressed the willingness and desire to file an affidavit or an undertaking confirming that he was prepared to take medical treatment including Antabuse and anti-androgens if prescribed both while he was incarcerated and upon his release. Dr. Klassen had raised and briefly discussed the issues with Mr. Farouk, and Mr. Farouk had expressed ambivalence and reluctance in these discussions. Dr. Klassen candidly acknowledged in his evidence that this was not an unusual reaction, and that he had not discussed the issue in any depth, as drug treatment of this sort was not on the immediate horizon.

[71] The Crown objected to this undertaking being filed without the right to cross-examine Mr. Farouk. Mr. Farouk consented to being cross-examined on the undertaking and issues relevant to his credibility and the undertaking. As this is a sentencing proceeding, where procedures and rules are less strictly adhered to, I allowed the defence to file the document, subject to the Crown’s right to cross-examine.

[72] The Crown proceeded with a skilled, probing cross-examination for some 2 ½ hours. The Crown vigorously challenged Mr. Farouk’s credibility and cross-examined him at some length on all of his prior offences.

[73] It is the Crown’s position that Mr. Farouk is attempting to manipulate this court for his advantage as he has consistently failed to abide by conditions imposed and undertakings given. The defence argues that Mr. Farouk is sincere in realizing that he will benefit from such treatment, that he exposed both his strengths and weaknesses in cross-examination. This evidence should assist in the question of treatability and reducing risk to the public.

[74] Fair to say that Mr. Farouk took some responsibility for his actions, and made some significant admissions against his interest, such as acknowledging a sexual coercive preference while under the influence of drugs and alcohol, although he minimized other aspects of his past history. I will consider Mr. Farouk’s evidence and the arguments as to credibility made by the Crown later in these reasons.

Chronology of Significant Periods in Mr. Farouk’s Life

[75] Below is a discussion of Mr. Farouk’s life, starting with the predicate offences, proceeding with a discussion of Mr. Farouk’s prior criminal history, and then dealing with various phases of his life in chronological order.

The Predicate Offences

[76] Mr. Farouk’s trial on the predicate offences proceeded as a jury trial. The Crown and defence prepared an Agreed Statement of Facts concerning the facts underpinning these offences. It provides:

(1) The offences occurred on May 25, 2013.

(2) Ms. K. M. was attacked by Mr. Farouk. He choked, sexually assaulted and threatened her.

(3) The physical attack on Ms. M was recorded on the elevator video at 3969 Kingston Rd., Scarborough, Ontario. This video is an exhibit at trial. This video shows Mr. Farouk surreptitiously entered the building behind Ms. M and he then followed her into the elevator. He then turned to her and suddenly attacked her, grabbing her with two hands around her neck. There was a violent struggle during which she was tossed from one side of the elevator to the other while she tried to remove Mr. Farouk’s hands from her neck area. The parties separated and then Ms. M fled the elevator as soon as the doors opened. Mr. Farouk left the building several seconds later and then returned and attempted to re-enter the building.

(4) Ms. M’s testimony included the evidence that the defendant stated to her that “She is cute” just prior at attacking her. She gave evidence that the attack on her ceased after she repeatedly kneed Mr. Farouk in the groin area and promised him that she would not tell anyone. Her evidence was that he responded by saying “I’ll fucking knock your teeth out” or “if you say anything I will fuck you and knock your teeth out.” This evidence was essential to the necessary finding of fact for both the sexual assault and the utter threats charge to the jury.

[77] When he testified and in his cross-examination, Mr. Farouk soft peddled the facts of the predicate offences. He suggested that he was acting in self-defence, a suggestion that is not credible in light of the video of the attack. He also suggested that the victim called him a Paki, but admitted to choking her. He told Dr. Klassen and testified that he could not remember whether he intended to sexually assault the victim. His answers to Dr. Klassen and his evidence to this court confirm a reluctance to accept responsibility for his actions and a deliberate skirting around the truth. This failure to accept responsibility has been a consistent feature of the various versions of his offences he has told to others as time passes and he is questioned about his previous offences.

[78] The victim impact statements of Ms. M and her grandmother speak to the significant impact of this event upon Ms. M, including significant trust issues and lingering fear.

Mr. Farouk’s Prior Criminal History

[79] Mr. Farouk was charged with sexual offences against a prostitute on October 14, 2000.

[80] The victim, NS, had worked for an escort service for about three weeks prior to this incident. Mr. Farouk contacted the escort service using a false name, “Charlie,” and specifically sought the services of an East Indian female. When Ms. S attended at the address in Mississauga, an address located close to the home of Mr. Farouk’s girlfriend, but not where he lived, Mr. Farouk met her and took her along a pathway to the rear of the home. Mr. Farouk took physical control of Ms. S by holding an exacto knife to her throat. He forced her to perform fellatio on him and had forces sexual intercourse with her at knifepoint, causing a scratch to her jaw and vaginal swelling. Mr. Farouk also stole the victim’s purse containing $400. He also threatened her that she was not to move until he was able to leave the area. DNA analysis identified Mr. Farouk’s semen in the victim’s vagina.

[81] While on bail for the first set of charges, Mr. Farouk reoffended on July 8, 2001.

[82] The victim was CM and the incident resulted in charges of sexual assault, kidnapping and robbery. Ms. M testified that she was forced to enter Mr. Farouk’s car in downtown Toronto, then ordered to remove all her clothing, and was forced to perform fellatio on him as he drove his vehicle some 27 kilometers back to Markham where he lived. When Ms. M lifted her head, she was struck on the side of the head by Mr. Farouk and forced to continue performing fellatio on him. He told her that he was sick of prostitutes. Once they arrived in Markham, Ms. M was driven to a secluded area whereupon she was forced to have sexual intercourse with Mr. Farouk without using a condom. He then ejected her from his vehicle without any clothing except her socks. He kept Ms. M’s purse with her identification. He told Ms. M that if the police came looking for him, he knew where she lived and he would get her. Ms. M’s cell phone was located in Mr. Farouk’s car the same night as the attack. Ms. M’s clothing was located at a mall near a dumpster not far from Ms. Farouk’s home address. Ms. M testified that she had worked as a prostitute around the time of this incident, but was not so doing on the date of the offence. DNA testing confirmed that Mr. Farouk’s sperm DNA was present in Ms. M’s vagina.

[83] A review of Ms. M’s trial testimony amply demonstrates how traumatic the experience of July 8, 2001, was for her.

[84] Mr. Farouk was convicted on November 15, 2003, for the July 2001 offences of sexual assault, kidnapping and robbery. As he had been denied bail, he had served two and a half years in pre-trial detention. He was sentenced to time served plus one day for the 2001 offences, which was equivalent to a sentence of five and a half years.

[85] In fairness to Mr. Farouk, it appears in his interviews with Dr. Klassen that he admitted the essential facts of the prior offences without embellishment or excuses.

[86] Mr. Farouk was convicted November 26, 2004, and sentenced October 18, 2005, for the charges of sexual assault with a weapon, armed robbery and uttering threats that took place on October 14, 2000. Justice O’Connor sentenced Mr. Farouk to four and a half years in addition to time he had already served. The total sentence, taking into account time served, is equivalent to a sentence of seven and a half years.

[87] Ms. S’s trial testimony from those proceedings leaves little doubt that Mr. Farouk’s violent assault at knifepoint was a deeply traumatic event for Ms. S.

[88] In the sentencing before Justice O’Connor for the 2000 offences, the Crown had requested a psychiatric assessment to be conducted. Dr. Woodside conducted a psychiatric assessment, and his report is dated April 30, 2005. The assessment began but Mr. Farouk declined to complete the assessment. However, many of the reports in Mr. Farouk’s correctional file refer to Dr. Woodside’s report.

[89] Dr. Woodside confirmed in his report that in his view, Mr. Farouk met some of the criteria for a dangerous offender and that he was at a high risk to reoffend. He opined that Mr. Farouk probably preferred coercive non-consensual sexual relations. He was not able to opine about control in the community, as the assessment was not complete.

[90] Of note in that report was that Mr. Farouk expressed a willingness to participate in treatment while incarcerated and in the community, and was willing to consider treatment to sex-drive reducing medication, although he was not prepared to commit to it.

[91] In addition to the above offences, Mr. Farouk has pleaded guilty to or been convicted of the following compliance and driving offences:

1. Convicted on January 23, 2004, of fail to comply with recognizance in relation to his assault on C.M.

2. Pleaded guilty on June 6, 2013, to impaired driving and refusing a breath sample (offence date of March 8, 2013).

3. Pleaded guilty on June 20, 2013, to failure to comply with recognizance in relation to being in possession of alcohol at the Jukebox Live in Pickering, Ont.

4. Pleaded guilty on November 28, 2013, to impaired driving (offence date of August 12, 2012).

5. Convicted on May 26, 2014, of three counts of fail to comply with recognizance in relation to the events surrounding the incident with Ms. McLaren.

Mr. Farouk’s Personal History until his Incarceration in July 2001

[92] Much of the following is taken from Dr. Klassen’s report, which in turn is based upon his interviews with Mr. Farouk and his review and summary of the voluminous files pertaining to Mr. Farouk. As well some of the facts as to the family history come from the evidence of Mr. Farouk’s mother and brother.

[93] Mr. Farouk lived in the United States during his youth with his mother and stepfather. Mr. Farouk was treated as an outsider within his own family.

[94] Mr. Farouk’s mother and brother testified that his stepfather engaged in excessive discipline. His brother confirmed that “normal discipline,” according to him, was the use of a belt or a slap. The brother gave as an example of “excessive discipline” an incident during which Mr. Farouk’s stepfather placed Mr. Farouk, a young child, on the hot stove as punishment for playing with matches.

[95] The stepfather was a military man. The family moved frequently over of years, creating instability in Mr. Farouk’s life and making it difficult for him to make friends. According to his mother, the frequent moves disrupted Mr. Farouk’s education, as often the moves were in the middle of the school year. There were issues of spousal abuse in his mother’s marriage to Mr. Farouk’s father, as well as in her second marriage to the soldier.

[96] Dr. Klassen testified that this family history – a combination of physical abuse by a father or stepfather coupled with an ineffective mother from the perspective of discipline – is a common presentation in sex offenders.

[97] Mr. Farouk’s mother confirmed that after she separated from her second husband, she moved to Syracuse to be near her sister. During this period she could not control Mr. Farouk. She tried to get help with discipline from her brother, but that did not work as he too used excessive force in discipline.

[98] The records are incomplete as to Mr. Farouk’s criminal history as a youth. There is one criminal conviction for creating a disturbance. Mr. Farouk’s mother also confirmed that at age 15 he took her car, and that she reported the incident to the police and he was arrested.

[99] Mr. Farouk did not finish high school and stopped going to school at the age of 15. Mr. Farouk was rebellious as a youth, but did not belong to any gangs. Mr. Farouk confirmed to Dr. Klassen that his mother was caring, but confirmed that he could get away with things and that she was ineffective when it came to discipline.

[100] One of the unresolved issues between the Crown and defence was whether Mr. Farouk had a conduct disorder with onset before the age of 15, which is relevant to the diagnosis of a personality disorder. Based upon the evidence available to Dr. Klassen, he was not able to reach a conclusion on this question.

[101] Mr. Farouk moved to Canada with his mother and his younger brother in 1998 at the age of 17. He lived at home, and was not required by his mother to contribute very much to the family finances.

[102] As previously noted, Dr. Klassen was of the view that Mr. Farouk’s mother is an enabler, and that she “struggled with discipline,” both with Mr. Farouk as a child and in her inability to adequately supervise him when he was subject to restrictive terms of court bail orders. Mr. Farouk’s mother also admitted this in her evidence.

[103] Clearly Mr. Farouk’s mother loves him dearly and has not given up on him. She blames herself for some of his difficulties, and until recently had not accepted the seriousness of her son’s conduct as he lied to her about the facts underlying the charges. She blindly believed the lies.

[104] She went to visit him in Kingston every week for 9 years, often accompanied by Mr. Farouk’s younger brother, Sheik Ali.

[105] Notwithstanding his mother’s limitations as a disciplinarian, Mr. Farouk has a strong family connection with his mother and his brother, as well as his aunt in Syracuse. However, it is evident that neither Mr. Farouk’s mother nor his younger brother would be able to impose the structure necessary upon Mr. Farouk when he is released into the community.

[106] Just as he turned 19, Mr. Farouk married Shazeela Yacoob, age 24, when she became pregnant. They had been together for several months before the marriage, and the marriage lasted two years. While married, Mr. Farouk used escorts for occasional sexual intercourse or fellatio. He also had a younger girlfriend. He felt trapped and unhappy in his marriage; he was not ready to be a father and conducted himself in many ways as a single man, going out to clubs, partying, adding to the conflict in the marriage. He was married to Ms. Yacoob when both the 2000 and 2001 offences took place.

[107] Mr. Farouk was living with a woman, Anasha Anand, when the 2013 offence took place. During the relationship he continued to use escort services.

[108] Mr. Farouk loves to dance and he loves being the center of attention with his dancing. From an early age he went regularly to clubs to dance and drink. As Dr. Klassen noted in his report, alcohol puts him “over the top.” For Mr. Farouk, alcohol leads to increased aggressivity and increased libido.

[109] When there are pressures or conflicts on the home front, Mr. Farouk responds to these pressures by escaping responsibilities and going out to drink, take drugs and party. In other words, pressure or conflict is a contributing factor to his offence cycle. For Mr. Farouk’s two offences in 2000 and 2001 he was married with a young baby. For the predicate offences, Mr. Farouk was living with his girlfriend and they were having difficulties.

[110] Mr. Farouk’s partying, dancing, drinking and consumption of drugs features largely in his offence chain in 2000, 2001 and 2013.

[111] Mr. Farouk admitted to Dr. Klassen that he is a binge drinker, particularly on the weekends. He acknowledged in his testimony that he did not accurately disclose in the admission test when he arrived at the penitentiary that alcohol and drugs were involved in the sexual offences. He was not targeted for alcohol or drug treatment as he had lied on the initial intake assessment. He did not seek additional treatment for alcohol or drug problems either while incarcerated or when in the community.

[112] Dr. Klassen remarked that given the information that Mr. Farouk did disclose in the High Intensity Sex Offender Program that alcohol and drugs were involved in the 2000 and 2001 offences, he found it surprising that further intervention for problems with alcohol and drugs was not recommended while Mr. Farouk was incarcerated.

[113] When Mr. Farouk was released into the community on his warrant expiry date, he was not under any supervision other than the 810.2 order for the first year after his release. There was no condition in that order for treatment as a sex offender or for alcohol problems. Once the 810.2 order expired, Mr. Farouk slipped back into drinking and drugs, with driving offences and breach of conditions of release until the predicate offence, three years after his release.

[114] Mr. Farouk has a modest work history as a teenager, working in a grocery store or doing renovation work with his Uncle Leo. While incarcerated, Mr. Farouk was a respected worker and obtained glowing reports from his supervisors for his work in the kitchen while in Bath Institution. He also obtained his forklift drivers’ licence while incarcerated. I will review his institutional work history later in these reasons.

[115] When Mr. Farouk returned to the community after his incarceration, he was involved in several jobs while he was on the 810.2 supervision order. Other than working for Kubato or Sony, he did not work for periods longer than one or two months. His longest work commitment was eight months. Mr. Farouk estimated that while in the community he worked approximately 70% of the time, and that he was intermittently supported by public assistance.

Institutional History: 2006 to April 2010

[116] The details of Mr. Farouk’s institutional history in the years 2006 to 2010 are attached as Schedule A to these reasons.

[117] Ms. Marlene Do Rego prepared the initial community assessment on October 25, 2005, prior to Mr. Farouk being transferred to Millhaven for assessment. She met with Mr. Farouk’s mother, Ms. Indrani Deonarayan, as part of that assessment. His mother recalled two youth arrests when Mr. Farouk was a teenager, including: (1) taking her car at the age of 15 and driving without a licence, which she reported to the police; and (2) a “muscling offence” with a group of friends when he was 17. Mr. Farouk’s mother confirmed Mr. Farouk’s liking to party, and that he overspent, particularly on his socialization.

[118] Ms. Deonarayan made a comment to Ms. Do Rego, who was preparing the pre-incarceration assessment in 2005, about prostitutes that was of concern. She stated: “she [the mother] questions how the offender could have been charged with sexually assaulting a prostitute given the prostitute’s occupation.” There was a concern that Mr. Farouk’s negative and callous attitude towards prostitutes may have come from his mother.

[119] Ms. Do Rego testified that she was of the view that “overall, Ms. Deonarayan [Mr. Farouk’s mother] presented as a positive and caring individual who will likely be an asset towards the offender’s reintegration.” Moreover, she will “likely provide a strong supportive network for the offender in the community.”

[120] Following an initial intake assessment, Mr. Farouk was classified as a maximum security offender.

[121] Joanne Rutley performed the initial intake assessment at Millhaven when Mr. Farouk was first incarcerated in 2006. She was a newly qualified parole officer, who observed that Mr. Farouk tried to come off as “charming,” but that he was polite and cooperative. She oversaw a battery of self-reporting tests completed by Mr. Farouk. She spent some time liaising with Mr. Farouk, but her primary responsibility was to summarize the paperwork in her Criminal Profile Report dated May 6, 2006, as well as the various test results. She recommended that Mr. Farouk participate in the High Intensity Sex Offender Program. She concluded that his level of risk as an untreated sex offender was high.

[122] I heard evidence from Dr. Geris Serran, the clinical psychologist who supervised the intake interviews and actuarial tests conducted by Ms. Sparks. The results of these tests were included in the initial Psychological/Psychiatric Assessment Report dated April 19, 2006, when Mr. Farouk was first incarcerated. Mr. Farouk was assessed as a high-risk offender.

[123] Jodi Holmberg, Mr. Farouk’s parole officer from 2006 to 2007 during his incarceration at Kingston Penitentiary, also testified. She recommended in her report dated May 18, 2007, that there be an override of Mr. Farouk’s computed Security Re-classification, which had re-classified Mr. Farouk’s placement from high security to medium security. The override recommendation was made as a result of some incidents during the early period of his incarceration, including suspecting that he was involved in the drug culture, a slashing incident in which Mr. Farouk was the victim, a call that Mr. Farouk made to his ex-wife to try to make contact with his son contrary to the allowable institutional phone rules, and the fact that Mr. Farouk chose to defer the High Intensity Sex Offender Treatment for 10 months. Therefore, Ms. Holmberg recommended that Mr. Farouk remain classified as high risk, requiring a maximum security placement. The case management team endorsed her report and the medium security reclassification was overridden.

[124] As a result of this override, Mr. Farouk served his entire sentence in Kingston Penitentiary and at the Regional Treatment Center, located in Kingston Penitentiary, until he was transferred to Bath Institution to participate in the Medium Intensity Sex Offender Treatment Program in 2009.

[125] Mr. Farouk had dropped out of school in grade 9. His first priority once incarcerated was to complete his high school education. He was granted the equivalent to eight credits, and then over time he completed 9 high school credit courses with marks between 71 and 91 percent. He received his GED in April 2007.

[126] After completing his high school in April 2007, Mr. Farouk immediately reapplied to the High Intensity Sex Offender Program in May 2007. He was again accepted into the program, and began the assessment process in September 2007.

[127] It appears clear in the institutional chronology that Mr. Farouk’s decision to defer the High Intensity Sex Offender Program until he had completed his high school was a mistake, viewed with the wisdom of hindsight. It was perceived very negatively by his parole officers, and impacted significantly on the denial of his re-classification to a medium security institution. As well, the deferral of the program figured negatively in the initial assessment by the National Parole Board and the denial of release before his warrant expiry date.

[128] Prior to Mr. Farouk entering the High Intensity Sex Offender Program, he did have some institutional infractions during the early part of his incarceration. Mr. Farouk’s mother confirmed that Mr. Farouk was under pressure from other inmates to bring in drugs.

[129] It is fair to say from a review of the institutional record, that once Mr. Farouk began the High Intensity Program, until his release, Mr. Farouk was a model prisoner participating well in programs and work. I will elaborate on this when I consider the question of treatability.

[130] Anita Cumbleton testified at some length. Ms. Cumbleton was a co-facilitator in the Self-Management groups, which took place three times a week, for two hours per session, for the duration of the six to eight month High Intensity Sex Offender Program. She was also Mr. Farouk’s individual counselor during the program.

[131] She was, in 2007, a recently qualified master’s level psychologist. She is still with Correctional Service Canada working as a psychologist. She oversaw the administration and interpretation of a battery of tests completed by Mr. Farouk prior to and during his participation in the High Intensity Sex Offender Program, beginning September 11, 2007, and ending April 25, 2008. Her work was supervised by Dr. Jan Looman, who holds a Ph.D. in psychology and has years of experience in corrections.

[132] Ms. Cumbleton scored Mr. Farouk as a 19 on the PCLR. This score was reviewed by and endorsed by Dr. Looman, who is, according to Dr. Klassen, a well-recognized and experienced clinical psychologist. The PCLR score of 19 was disputed by Dr. Klassen as being significantly lower than the range he had assigned Mr. Farouk and outside the usual and acceptable margin of error of plus or minus 3. Dr. Klassen scored Mr. Farouk a 29.5, which he adjusted downwards with his sliders to 25.5 to 26.5.

[133] Ms. Cumbleton also administered various other tests, including the Millon Clinical Multiaxial Inventory (“MCMI”) 111, which tests for personality disorders. Mr. Farouk’s test results from the MCMI-111, which Dr. Klassen described as the “motherload” of tests for personality disorders, was a negative finding as to personality disorder. Ms. Cumbleton relied upon this test result, as well as her interviews and interactions with Mr. Farouk, in her assessment and her conclusion that Mr. Farouk did not have a personality disorder.

[134] The defence relies on the test results of Ms. Cumbleton, endorsed by Dr. Looman, to challenge certain of Dr. Klassen’s conclusions. In particular, and contrary to the opinion of Dr. Klassen, the defence contends that Mr. Farouk does not have a personality disorder, although he has certain problematic “personality traits.” The defence also contends that the appropriate PCLR score for Mr. Farouk is in the range of 19, with some upward adjustments, not 25.5 to 26.5 as confirmed by Dr. Klassen in evidence, nor the 29.5 score as outlined in his report.

[135] Dr. Looman testified, and I accept his evidence, that Ms. Cumbleton was a bright, competent young psychologist when she was working with Mr. Farouk. Moreover, her work was closely supervised by Dr. Looman. Dr. Looman did acknowledge that Dr. Klassen had more up to date information when he completed the PCLR, and acknowledged that some, but not all, of the scores from 2007 should be adjusted upward to take into account recent events. I will refer to details of the various assessments and observations later in these reasons.

[136] Mr. Farouk performed well in both the High Intensity Sex Offender Program and in the Medium Intensity Sex Offender Program. He was motivated, insightful, and helpful to others. He acknowledged responsibility for his actions and the harm he had caused his victims, and appeared to make significant gains and efforts to change.

[137] Dr. Klassen seemed to question Mr. Farouk’s motivation and progress in both sex offender programs and in his work placements. He questioned whether Mr. Farouk may have charmed or conned those in charge of the program, telling them what they wanted to hear without making sincere and significant gains. I will comment on this thought when I consider the issue of treatability.

[138] Lynn Bradford was Mr. Farouk’s second parole officer while he was incarcerated in Kingston Penitentiary beginning in May 2007. She prepared various reports to determine whether Mr. Farouk should be released on his statutory release date, or whether there were grounds to keep Mr. Farouk in custody to his warrant expiry date, pursuant to s. 129(2)(a)(i) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”).

[139] The first report, dated October 11, 2007, was just one month after Mr. Farouk had begun the High Intensity Sex Offender Program, after deferring his participation for 10 months.

[140] Ms. Bradford concluded that there were reasonable grounds to believe that Mr. Farouk “is likely to commit an offence causing serious harm to another person before the expiration of the offender’s sentence.” The warden accepted this report, and therefore an updated report dated May 12, 2008, was forwarded to the National Parole Board with their finding.

[141] The National Parole Board accepted Ms. Bradford’s assessment, and on July 21, 2008, made their first detention order denying Mr. Farouk’s release on his statutory release date. This was shortly after Mr. Farouk had completed the High Intensity Sex Offender Program.

[142] In her second report, Ms. Bradford recommended transfer to Bath Institution for further treatment and to a less restrictive environment to meet the eventual goal of safe release into the community. She did so after Mr. Farouk had successfully completed the High Intensity Sex Offender Program. Mr. Farouk was then transferred to Bath Institution to participate in further programming in accordance with her recommendation.

[143] Dr. Serran, who had participated in Mr. Farouk’s initial assessment, testified about her involvement with Mr. Farouk. She was the group leader in charge of leading the Medium Intensity Sex Offender Program that Mr. Farouk participated in at Bath Institution, from April to June 2009, following his completion of the High Intensity Sex Offender Program at the Regional Treatment Center.

[144] Dr. Serran authored the report dated August 5, 2009, confirming Mr. Farouk’s positive performance in the Medium Intensity Sex Offender Program that he completed prior to his release. Her final report confirms that Mr. Farouk’s risk was reduced from moderate-high risk category for reoffending to moderate risk.

[145] I will review a summary of Dr. Serran’s recommendations when I consider the issue of treatability.

Mr. Farouk’s Release upon Warrant Expiry in April 2010 to his Arrest in June 2013

[146] Dr. Serran recommended the following: “Given Mike’s lengthy period of incarceration and young age, that he be released on a residency prior to his Warrant Expiry in order to allow him the opportunity to reintegrate into the community with support and supervision.”

[147] Notwithstanding Mr. Farouk successfully completing his GED, the High Intensity Sex Offender Program, as well as the Medium Intensity Sex Offender Program at Bath, and a glowing work history, the National Parole Board did not follow the recommendations of Dr. Serran for a gradual release into the community to a controlled and supervised residential setting.

[148] Even with Dr. Serran’s recommendations, the National Parole Board, in both 2008 and 2009, did not grant Mr. Farouk release. He was incarcerated until his warrant expiry date on April 17, 2010.

[149] Ms. Do Rego has 17 years of experience supervising sexual offenders in the community.

[150] As Ms. Do Rego confirmed, the worst scenario for release for a moderate to high-risk offender such as Mr. Farouk is going from an institutional environment at warrant expiry date with strict controls and structures, to a setting with very few controls and structures.

[151] As confirmed in the Correctional Services Manual on Long Term Supervision Orders, “[t]he safest correctional strategy for the protection of society requires a gradual and structured supervised release fully supported by the community through a network of collateral support and community resources.”

[152] This is not what happened with Mr. Farouk. When Mr. Farouk was released, he went home to his mother and family, who love him dearly but have little or no capacity to provide adequate guidance or structure to him, particularly if he begins to consume alcohol and/or drugs.

Mr. Farouk’s 810.2 Supervision Order and Terms

[153] A section 810.2 supervision order is governed by s. 810.2 of the Criminal Code. That section allows any person who fears on reasonable grounds that another person will commit a serious personal injury offence, with the consent of the Attorney General, to lay an information before a provincial court judge. The provincial court judge may impose terms for a one-year recognizance, though an offender previously convicted of a serious personal injury offence may be subject to a two-year recognizance. The terms may include reporting, a curfew, geographic limitations, abstinence from alcohol or drugs as well as treatment. The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance.

[154] When he was released, Mr. Farouk lived with his mother and brother, and was placed on a 810.2 supervision order. The terms of his supervision order included a reporting requirement once a week, to report employment status, to refrain from any communication or activity with a sex trade worker or escort service, to abstain from alcohol and drugs, and to not enter a licenced premise except in the presense of his mother or brother. There was no requirement for treatment as a sex offender, or for problems with alcohol or drugs.

[155] Shortly after his release, he met a woman, Danesha, and her name appears with some frequency in the notes of PC Peters, who was Mr. Farouk’s supervisor during the 810.2 order. Another woman, Anasha, also appears in the notes. She was his girlfriend at the time of the predicate offence in 2013.

[156] It is clear that during the first year after Mr. Farouk’s release on his mandatory supervision date, Mr. Farouk did well, abiding by the terms of the peace bond, and controlling his alcohol and drug consumption (although probably not to the point of complete abstinence). The officer supervising him was pleased with his progress and compliance and did not seek to renew the order.

[157] Mr. Farouk reported regularly, found employment, although he held several short-term jobs, had a girlfriend and was able to control his drinking for the first year after his release. As he performed well and was compliant, PC Peters did not reapply for another 810.2 order, and Mr. Farouk did not volunteer or request a further year of supervision.

Deterioration and Return to Partying Lifestyle

[158] After the conclusion of the 810.2 supervsion order, Mr. Farouk’s conduct began to slide.

[159] He began binge drinking again, and the pattern of partying, dancing and going to clubs that was identified as his offence cycle, was re-established. Both Dr. Klassen and Dr. Looman agreed that after the initial year post-release, Mr. Farouk did not use the strategies he had learned during treatment.

[160] He was in a car accident and his mother’s car was totaled. He was charged with two driving offences and he was placed on curfew for two counts of impaired driving. He acknowledged to Dr. Klassen that he frequently drove while impaired.

[161] As a result of the driving offences he was subject to a curfew, and later subject to a non-consumption order. He was regularly in breach of the terms of his curfew as he was going to clubs on a regular basis, from Thursday to Saturday each week. As well, he was in breach of the condition not to consume alcohol.

[162] His mother, and Anasha, his girlfriend and mother of his child, both of whom were sureties for the driving offences, did not report his numerous breaches. This is not to blame his sureties, however, as responsibility for the breaches lies solely with Mr. Farouk.

Dr. Klassen’s Diagnosis

[163] Dr. Klassen testified that in his view, Mr. Farouk has a personality disorder, an alcohol abuse disorder and a probable paraphilia with a preference for coercive sexual activity.

[164] The defence acknowledges difficult personality traits, but disputes the diagnosis of a personality disorder.

Does Mr. Farouk have a personality disorder?

[165] As outlined above, one of the issues separating the Crown and defence is the following: Does Mr. Farouk have a general personality disorder with anti-social and narcissistic features or does he have traits of a general personality disorder, as well as anti-social and narcissistic personality disorder, but without the formal diagnosis? What impact does a determination of this issue have upon treatability?

[166] The Crown argues that Mr. Farouk has a personality disorder that negatively affects both his prospects for successful treatment as well as the assessment of risk in the actuarial tests.

[167] Defence counsel disputes Dr. Klassen’s diagnosis of a personality disorder. Defence counsel relied upon the assessment and the tests performed by Corrections Canada during Mr. Farouk’s participation in the High Intensity Sex Offender Treatment Program in 2007.

[168] Dr. Klassen opined that “I think his personality structure is the reason why we are here today.” He stated that Mr. Farouk’s underlying personality problems, accelerated or enhanced by drugs and alcohol, account for his profile. Personality disorders are closely linked to substance abuse. Dr. Klassen confirmed that 80% of those with anti-social personality disorders have substance abuse problems.

[169] Dr. Klassen described personality as the “infrastructure, or the matrix within which other diagnosis are embedded. Personality is in a way the gatekeeper. It can hinder or help you deal with an addiction. It can hinder or help you deal with a sex disorder. […] Personality is the glue that holds us all together. So you cannot ask for a complete change in that. But you would focus on and try to leverage a few key areas,” including cognitive thinking and emotional self-regulation.

[170] Dr. Klassen was clear and unequivocal in his opinion that Mr. Farouk has a personality disorder with anti-social and narcissistic traits.

[171] Dr. Klassen, Dr. Looman and Ms. Cumbleton agree that Mr. Farouk has many features of a general personality disorder, as well as some anti-social and narcissistic traits. Dr. Klassen concluded in his report and his evidence that “Mr. Farouk likely suffers from an anti-social personality disorder” and that he also has some narcissistic traits, without the clinical diagnosis.

[172] There is therefore a dispute whether the formal diagnosis, applying the DSM-V criteria, can properly be made of a general personality disorder.

[173] One aspect of this dispute is whether Mr. Farouk had an early conduct disorder in his adolescence. An early conduct order requires two or more criminal convictions as a teenager. It appears that the evidence does not support this finding.

[174] Another aspect of this dispute is the results of Mr. Farouk’s testing for personality disorder when he was assessed by Ms. Cumbleton and Dr. Looman at the beginning of the High Intensity Sex Offender Program. Ms. Cumbleton administered the MCMI-111, which, among other things, tests for personality disorders. It is a comprehensive, lengthy test that screens for dishonest answers. As previously mentioned, Dr. Klassen described this test as the “motherload” of testing for personality disorders.

[175] Ms. Cumbleton confirmed that the test results for the diagnosis of a personality disorder were normal - that is, there were no peaks or valleys of concern, and the validity scores to test for lying indicated that Mr. Farouk was telling the truth.

[176] Dr. Klassen did not arrange for updated psychological testing to be performed as part of his assessment and relied on clinical judgment in making his diagnosis of a personality disorder.

[177] Dr. Looman agreed that Mr. Farouk has many traits of a personality disorder, but disagrees with sliding into the diagnosis without all of the DSM-V criteria being met. It appears that Dr. Klassen takes a more wholistic approach to the question of diagnosis, whereas Dr. Looman is more exacting.

[178] The DSM-V outlines the conditions of a general personality disorder, as well as specific kinds of personality disorders at issue in this case, such as anti-social personality disorder and narcissistic personality disorder.

[179] Whether or not the formal diagnosis can be made, it is clear that all of the experts agree that Mr. Farouk has many of the traits of a general personality disorder, as well as traits of anti-social and narcissistic personality disorder including problems with cognition, affectivity, interpersonal functioning, impulse control, lying, reckless disregard for the safety of others, irresponsibility and features of grandiose self-importance with his need to be the centre of attention, lack of empathy and his sense of entitlement.

[180] The comments of Mr. Farouk’s brother as to his personality are informative. According to his brother, Mr. Farouk sounds like a reasonably nice guy and decent brother and person, until he begins to drink and/or consume drugs. His brother described the significant change in Mr. Farouk’s demeanor and personality when under the influence.

[181] Based upon the evidence before me, it is probable that Mr. Farouk meets the DSM-V diagnostic criteria of an anti-social personality disorder. There does not appear to me to be any doubt that he meets the criteria of a general personality disorder. I accept the evidence of Dr. Klassen on this issue, as he has closely reviewed the file in its entirety in preparing his report, and his assessment appears to be balanced and fair.

[182] It would be helpful to have updated the personality testing to confirm the probable diagnosis, and this will inevitably be redone when Mr. Farouk is assessed at the beginning of his incarceration following this sentencing.

[183] Dr. Looman testified that when Mr. Farouk was participating in the High Intensity Sex Offender Program, his view was that Mr. Farouk was an immature young man with a sexual preoccupation who needed to grow up and take responsibility for his actions. Dr. Looman agreed that given Mr. Farouk’s present age, and his continued pattern of irresponsible and reckless activity, that the personality difficulties are more evident.

[184] Clearly, whatever the specific diagnosis, the evidence supports a finding that Mr. Farouk has significant personality difficulties and many of the traits of a general personality disorder as well as traits of both anti-social and narcissistic personality disorders. These traits cause a lack of insight, rationalization and affect his ability to take responsibility for his actions resulting in problem behaviors, particularly when coupled with consumption of alcohol and or drugs.

Problem of Overconfidence

[185] It is conceded that Mr. Farouk tested very high on the Paulhus Deception Scale Test, in both his pre-screening test and post-treatment test following the High Intensity Sex Offender Program in 2007.

[186] There are two aspects to this test. The first is to test for self-deception. The second aspect of the test is testing for socially desirable norms, and deception of others.

[187] Mr. Farouk tested very high on the first measure of this test both before and after treatment. The test measures for social desirability were normal, which means that in his responses he was not attempting to deceive others about his capacities.

[188] This test confirms that Mr. Farouk is self-deceptive, overly confident in his ability to cope with his problems and that he underplays his weaknesses. He underestimates both the problems he faces and what he needs to do to overcome the problems. This trait may make him more resistant to feedback. It is an attitude that “others may have that problem, but not me.”

[189] This overconfidence is something that will have to be targeted in treatment as part of his relapse prevention plan.

Substance Abuse

[190] There is no dispute that Mr. Farouk has an adult problem with alcohol. He confirmed this in his evidence before me and in his discussions with Dr. Klassen.

[191] Mr. Farouk uses alcohol and described himself to Dr. Klassen as a binge drinker. Mr. Farouk’s brother confirmed that when he was not drinking, he was a good guy. He changed when he was drinking and became a different person; Mr. Farouk becomes uncontrollable according to his brother. According to Mr. Farouk, he has used cocaine on six occasions, usually related to sexual activity.

[192] All of the offences involved alcohol, and marijuana laced with other drugs. The latest offence involved use of alcohol and cocaine. In terms of his risk to reoffend, Dr. Klassen expressed concern about his alcohol and cocaine consumption. It is alcohol that Dr. Klassen confirms is a gateway drug for Mr. Farouk. Dr. Klassen expressed concerns about Mr. Farouk’s use of alcohol, both for its own effects on Mr. Farouk and also because it led to taking other disinhibiting drugs such as cocaine.

[193] Mr. Farouk told Dr. Klassen that he has used significant quantities of marijuana on a daily basis since he was a teenager. Dr. Klassen testified that he was not particularly concerned about Mr. Farouk’s use of marijuana as it tended to keep him calm, did not cause change in libido or aggressivity, and did not appear to impact on any of the offences.

Sexual History and Probable Preference for Sexual Coercion

[194] Dr. Klassen interviewed Mr. Farouk about his sexual history. He became sexually active at age 14 and has had many partners, all female. In conversation with Dr. Klassen, he denied any interest in non-consenting sexual behavior. At the time of all three of the offences he was involved with a partner: the first two offences occurred when he was married, and at the time of the predicate offences in May 2013, Mr. Farouk was in a relationship with his girlfriend, Anasha, and they had a child together.

[195] Dr. Klassen testified that he believed that Mr. Farouk’s relationships were shallow and superficial. Mr. Farouk has had many consenting sexual partners, including escorts whose services he obtained through an escort services agency. While he was married, Mr. Farouk had a girlfriend for a period of six months.

[196] Mr. Farouk disclosed to Dr. Klassen that when he is in a relationship that is troubled, he begins to drink more and goes into his cycle of partying, clubbing and consumption of drugs and alcohol. He uses sex as a release from daily pressures in his life.

[197] Dr. Looman testified that Mr. Farouk was highly sexually preoccupied, that he used sex as a way of coping with anger and stress.

[198] Dr. Klassen expressed the view that Mr. Farouk probably had a paraphilia for sexual coercion.

[199] One of the disputed issues is this whether Mr. Farouk has a probable preference for sexual coercion and, if so, what impact such a paraphilia has upon the issue of his treatability.

[200] Dr. Woodside raised the issue in his report in 2005, questioning whether Mr. Farouk had a probable preference for sexual coercion when he completed the partial assessment of Mr. Farouk in relation to the 2000 and 2001 offences.

[201] The questions as to this diagnosis finds its way into the CSC records, including the initial psychiatric/psychological assessment done by Dr. Serran in 2006 and as well in Ms. Cumbleton’s reports in 2007 and 2008 while Mr. Farouk was in the High Intensity Program.

[202] To determine whether such a sexual preference exists depends on self-reporting, phallometric testing and conduct.

[203] Mr. Farouk has, throughout his treatment, denied a paraphilia or sexual preference for coercive sex. However, Mr. Farouk acknowledged under cross-examination in this sentencing hearing that he needs to take medication to control his coercive sexual preference while under the influence of alcohol and drugs. He testified that “this is what Dr. Klassen is saying” and that he trusts Dr. Klassen. He also testified in re-examination that “rape scenes do no turn me on.” At first blush, the admissions made by Mr. Farouk confirm Dr. Klassen’s tentative diagnosis, although his comment about rape makes his admissions somewhat equivocal.

[204] Certainly, the sexual offences display a significant amount of coercion and violence when Mr. Farouk is under the influence of alcohol and drugs.

[205] Mr. Farouk has had four phallometric tests conducted: three while he was incarcerated, and one at CAMH as part of the assessment by Dr. Klassen. The raw data is not available for the first three tests.

[206] One of the phallometric tests conducted indicates a probable sexual coercive preference, but is not conclusive.

[207] The first phallometric test conducted in 2005 was found to be too low for a valid clinical interpretation. The raw data for this test is not available.

[208] Prior to beginning the High Intensity Sex Offender Program in 2007, Mr. Farouk was administered two phallometric tests: the Quinsey and the Marshall test. The test profile on the Quinsey test was too low to interpret. The response on the Marshall test showed an equal response to consenting and sexually violent scenarios, which was considered to be a deviant response. The raw data for this test is not available for review. Dr. Klassen confirmed, however, that this test result “in the world of phallometrics is not a highly compelling result.” This is the test result relied upon indicating a probable coercive preference.

[209] At the conclusion of the High Intensity Program in 2008, Mr. Farouk was again tested. He was given instructions to suppress any deviant response, if there was one. This test result was normal. Dr. Looman and Ms. Cumbleton took the normal test result as progress, i.e. as indicating that Mr. Farouk was learning to control and suppress any deviant responses if in fact they were present.

[210] As part of the assessment for this proceeding, Mr. Farouk again underwent phallometric testing at CAMH. He was given instructions not to try to control his response to the auditory stimuli. The test results were found to be invalid, as Mr. Farouk showed the greatest sexual reaction to neutral, non-sexual stimuli. Mr. Farouk confirmed in his conversations with Dr. Klassen that he had tried to control his response, but the intensity of the test made control difficult, and that he found the test disturbing.

[211] Mr. Farouk has had many sexual partners. Dr. Looman testified that if a coercive sexual preference was present, it would find its way into conduct, be it role play or aggressive sex, with other sexual partners, not limited just in the pattern of offending. His wife and sexual partner of two years made no complaint of coercive sexual preferences. Dr. Klassen testified that a person could have a sexual coercive preference and at the same time have normal sexual relations with other sexual partners. As he confirmed, there is not a lot of evidence available from Mr. Farouk’s multiple partners, and Mr. Farouk often used the services of an escort service with no ability to question sexual practices. Sexual conduct or preferences in this context would be difficult to trace. Dr. Klassen testified that a person can save the preference for certain limited occasions, where “the coercive event is more satisfying.”

[212] Dr. Klassen confirmed that this probable preference for sexual coercion was “tough to diagnose,” and was a “feeling I get at the end of the day, not a firm diagnosis.”

[213] Based on the evidence adduced in this proceeding, including the evidence of Mr. Farouk, I conclude that the offences as well as the phallometric testing confirm a probable preference for sexual coercion in accordance with the tentative opinion of Dr. Klassen, at least while under the influence of alcohol and drugs. This is confirmed by certain of Mr. Farouk’s admissions on cross-examination.

[214] Certainly in any treatment program, this issue of the probable preference for sexual coercion needs to be explored and addressed. When Mr. Farouk was in the High Intensity and the Medium Intensity Programs, this probable paraphilia surfaced during the program but was not specifically addressed in treatment.

[215] The Crown has argued in her supplementary submissions that Mr. Farouk’s admissions in cross-examination to a coercive sexual preference are determinative of the need for an indefinite sentence. I disagree. As Dr. Looman pointed out in his evidence, in studies, 30% of university students exhibit a deviant sexual preference without being sex offenders. If Mr. Farouk has this preference it will be thoroughly explored in treatment both while incarcerated and while in the community.

[216] I accept Dr. Klassen’s tentative diagnosis. It is not clear to me based upon all of the evidence, including Mr. Farouk’s evidence whether he has this paraphilia, or whether he is, as suggested by Dr. Looman, highly sexually preoccupied and uses sex as a way of escape when under stress or anger, disinhibited by alcohol and drugs.

Summary of Mr. Farouk’s Actuarial Test Results

[217] Four actuarial tests were conducted: the PCLR, the Static 99-R, the SORAG, and the Stable 2007.

[218] The PCLR was performed by Dr. Klassen and by Ms. Cumbleton/Dr. Looman. This is a measurement, scored out of a possible 40 points, for psychopathy.

[219] Dr. Klassen’s test results on the Static 99-R are not challenged by the defence as Ms. Cumbleton and Dr. Looman had the same scores, once adjusted to take into account the predicate offences.

[220] Dr. Klassen and Ms. Cumbleton also tested Mr. Farouk on the SORAG, which is an actuarial tool specific to sex offenders. Their scores were very similar.

PCLR

[221] At first blush there is a large difference in the scoring between Dr. Klassen and Ms. Cumbleton. Ms. Cumbleton and Dr. Looman scored Mr. Farouk in 2007 as a 19, which is a low rating on psychopathy, whereas Dr. Klassen in 2014 scored Mr. Farouk as a 29.5, which he rounded to 30, a relatively high rating on the psychopathy index representing the 84^th percentile for offenders in the prison population.

[222] The score of 29.5 rounded to 30 puts Mr. Farouk at the cut-off point for the beginning of the high traits for psychopathy. Dr. Klassen in his report states that “a score of 30 is a significant score, and suggests difficulties with general and violent recitivism and treatment and supervision responsiveness.”

[223] Dr. Klassen agreed that he had certain sliders downwards, i.e. where he had scored Mr. Farouk a 2 but the score could be a 1, or a 1 where the score could be a 0. He testified that applying 3 of the 4 sliders downward, that he could live with a revised PCLR score of 26.5. Dr. Looman reviewed the revised scores of Dr. Klassen based upon the current situation and agreed with the 4 sliders downwards, but would also have reduced the PCLR score in two other areas. Dr. Looman’s current score for Mr. Farouk would be closer to 23.5.

[224] Taking into account concessions made during Dr. Klassen’s evidence-in-chief and in cross-examination, and Dr. Looman’s evidence, brings these scores much closer; to a score of 24 for Dr. Looman and a score of 25.5 or 26.5 for Dr. Klassen.

[225] Having heard all of the evidence, I accept the modified scores of Dr. Klassen – a score of between 25.5 and 26.5 – as the most accurate PCLR score assessment for Mr. Farouk in 2014. As Dr. Klassen actually conducted the PCLR test with intimate knowledge of the file, I accept his revised PCLR score of between 25.5 and 26.5 as accurate based upon all of the evidence, in preference to the somewhat lower score suggested by Dr. Looman.

[226] Dr. Klassen testified that scores in the range of 25.5 to 26.5 place Mr. Farouk at the 60^th to 70^th percentile of the prison population. The adjusted score of 26 puts Mr. Farouk in the moderate category when considering traits of psychopathy.

[227] Dr. Klassen confirmed that with PCLR scores in this range, be it 25.5 to 29.5, the appropriate supervision structures need to be in place when Mr. Farouk is released into the community.

Static 99-R

[228] This actuarial test is used to predict sexual recidivism and is based solely upon consideration of historical information. There is a much great inter-rater reliability than in the PCLR as the assessment is based on static factors, not involving clinical judgment.

[229] Dr. Klassen scored Mr. Farouk on the Static 99-R. After revision to take into account his two-year marriage, Mr. Farouk was given a score of 6 by Dr. Klassen. That score places him at the high risk category for sexual reoffending. Ms. Cumbleton and Dr. Looman scored Mr. Farouk as a 5 in 2007, which would be adjusted to a 6 to take into account the predicate offences.

[230] A score of 6 places Mr. Farouk at the 94^th percentile of sex offenders, with the expected rate of recidivism of 52% over 10 years under standard release conditions (such as parole).

[231] When Mr. Farouk reaches the age of 40, his score will drop to 5, which places Mr. Farouk at the 89^th percentile. His label for risk category will be moderate-high. At age 40, the expected rate of recidivism under standard release conditions over 10 years is expected to be 46%.

[232] Mr. Farouk’s percentile scores on the Static 99-R and the SORAG are similar, but the predicted rate of recidivism is much higher using the SORAG. The issues with the SORAG are discussed in greater depth, below.

[233] Dr. Klassen confirmed that, for the purpose of prediction of risk to reoffend, the Static 99-R probability statistics are more current and the best predictor of risk of reoffending. Dr. Looman agreed with this opinion.

[234] Dr. Klassen was very careful to add that this actuarial prediction is based upon release into the community under standard conditions, such as being on parole with modest reporting requirements.

SORAG

[235] Mr. Farouk was tested by Dr. Klassen and Ms. Cumbleton on the SORAG, which is an actuarial tool specific to sexual offenders.

[236] Dr. Klassen assessed Mr. Farouk on the SORAG in 2014 and gave him a score of 29, which places Mr. Farouk between the 96^th and 98^th percentiles of risk for reoffending, and places him in the 8^th of 9 bins of risk. Each bin represents a level of risk, and the bins are organized in ascending categories of risk.

[237] Ms. Cumbleton assessed Mr. Farouk in 2007 and gave him a score of 25, which places Mr. Farouk at the 92^nd percentile as to risk of reoffending. She did not add points for a personality disorder, and her PCLR score was lower, but she gave a higher rating than Dr. Klassen for elementary school maladjustment.

[238] Both Dr. Klassen and Dr. Looman confirm that the percentile score associated with the SORAG is accurate, i.e. these tests confirm that Mr. Farouk is between the 92^nd and 98^th percentile of sex offenders in terms of risk. However, both experts testified that the SORAG’s ability to predict probability of reoffending for offenders at the same risk level as Mr. Farouk is problematic.

[239] I find as a fact, therefore, that Mr. Farouk is at the high risk of reoffending compared to other sex offenders. Based on this test, he lies somewhere between the 92^nd and the 98^th percentile depending on whether he has a diagnosed personality disorder or not.

[240] Using the SORAG score of 29 (Dr. Klassen) or 25 (Ms. Cumbleton) places Mr. Farouk in the 8^th bin out of 9 for probability of reoffending. Amongst the SORAG development sample and amongst those with the same score as Mr. Farouk, 89% were convicted of reoffending sexually within a ten-year period. If Mr. Farouk does not have a personality disorder, then using Dr. Klassen’s adjusted score, that percentage is reduced to 80%.

[241] The problem with the SORAG scores in this case, is not the fine tuning between Ms. Cumbleton’s score and Dr. Klassen’s score, but rather the accuracy of the prediction of reoffending based upon the age of the sample and comparability of the sample population.

[242] Dr. Klassen acknowledged in his report and in his testimony that the SORAG gives an overly high estimate of reoffending, as the statistics are based upon historic data. Dr. Looman confirmed that the data available has not been updated since 1993, although there are some recent updates coming available. Dr. Klassen confirmed that the rate of reoffending has been reduced significantly in recent years.

[243] Dr. Klassen suggested that a more accurate SORAG score can be achieved by readjusting the predicted rate of reoffending downward by 15% to 20%. The reduced, but more accurate, figure therefore places Mr. Farouk as having a 69% to 74% chance of reoffending sexually over the next ten years if he does have the diagnosis of personality disorder, and 60% to 65% if he does not.

[244] Dr. Looman further criticized the use of the SORAG as an accurate actuarial tool, not only as the data was outdated, but based upon the sample population used for testing.

[245] First, Dr. Looman agreed that the historical figures for reoffending for sex offenders is an overestimate of reoffending, and he agreed with the reductions suggested by Dr. Klassen of 15% to 20% from the SORAG projections for projected reoffending.

[246] Second, he confirmed that Correctional Service Canada no longer use the SORAG as an actuarial tool, although Ms. Cumbleton did use the tool in 2007, as the comparative sample population of sex offenders for the SORAG statistics comes primarily from Penetang, tracking rates of recidivism for sex offenders with mental illness. Dr. Looman testified that the Penetang population is not a valid comparable to sex offenders in the general prison population, such as Mr. Farouk, as those sex offenders with mental illness reoffend more frequently than sex offenders in the general prison population.

[247] I accept Dr. Klassen and Dr. Looman’s concerns about the SORAG scores and conclude that the SORAG percentile scores can be accepted, but that the statistics for prediction of reoffending need to be treated with caution.

Stable 2007

[248] Ms. Cumbleton conducted the Stable 2007 test in November 2007 and scored Mr. Farouk as a 12 out of a possible 26 points. The moderate risk category is comprised of scores from 4 to 11. Any score above 12 places an offender in the high risk category for reoffending. This information was not translated to a prediction of risk of reoffending.

Conclusions for Risk of Reoffending based upon Actuarial Studies

[249] Dr. Klassen testified that the actuarial tests confirm that Mr. Farouk presently is at a high risk of reoffending sexually or violently. He opined that clinical judgment should not be introduced in the risk assessment in this case to adjust the risk assessment. This assessment was not disputed by Ms. Cumbleton or Dr. Looman.

[250] Dr. Klassen considered the global, cumulative effect of the two actuarial tests. Under standard release conditions, these instruments confirm that for Mr. Farouk’s profile there is a likelihood of sexual or violent re-offence within 10 years at somewhere between 50% or 60% when considering the SORAG and the Static-99R actuarial tests.

[251] It is clear from the expert evidence that, for my purpose, the most accurate actuarial tool to predict the risk of reoffending would be a consideration of Mr. Farouk’s Static 99-R score, given the problems with the SORAG statistics being out of date, and not comparing similar populations. This test, based upon Mr. Farouk’s present age, provides a figure of risk of reoffending of 52% over 10 years under standard release conditions. At age 40, this risk of reoffending is reduced to 46% over ten years, again, under standard release conditions.

[252] The opinions expressed regarding an offender’s risk of reoffending deal with the likelihood of conviction for re-offence; they do not take into account the question of the severity of the reoffending.

[253] Dr. Klassen noted that first two offences in 2000 and 2001 were more serious than the predicate offences, although Dr. Klassen noted that in the predicate offence victim resistance may have shaped the outcome. Dr. Klassen testified that the 2000 and 2001 offences were “fairly serious” and the predicate offence “less so.”

[254] Dr. Klassen was of the view, based upon clinical judgment, that Mr. Farouk’s history of past offences would be informative and may tend to “script the prediction of the nature and severity of future offences.” If Mr. Farouk reoffends, the offence would likely involve an aggressive sexual assault against an adult female similar to his past pattern of offences.

[255] Dr. Klassen cannot say whether Mr. Farouk falls in the reoffending or the compliant group of offenders.

[256] Dr. Klassen was careful to add that Mr. Farouk was at high risk to reoffend applying the actuarial risk assessments if he is released under typical release conditions such as a period of parole.

[257] Such a prediction does not take into account conditions that may be imposed as a term of a LTSO that may further reduce the risk of reoffending, including continued treatment, residence requirements, testing for drugs or alcohol, or taking medication including Antabuse and/or anti-androgens.

[258] Both Dr. Klassen and Dr. Looman confirm that these actuarial risk predictions would change dramatically depending on contextual factors such as community supervision, taking Antabuse and/or anti-androgens.

[259] Dr. Klassen noted that there is a discrepancy between the PCLR percentile scores and the SORAG percentile scores. On the PCLR, a score of 26 places Mr. Farouk at the 67^th percentile, whereas a score of 29.5 places him at the 84^th percentile. The percentile score generated by the PCLR is much lower than his percentile scores on the SORAG or the Static-99R: between the 92^nd percentile (Ms. Cumbleton) and 96^th to 98^th percentile (Dr. Klassen) on the SORAG, and the 94^th percentile on the Static-99R.

Declaration as a Dangerous Offender

[260] The defence has conceded that Mr. Farouk meets the test of a dangerous offender pursuant to ss. 753(1)(b) and 753(1)(a)(i) and (ii). The evidence establishes that this is so on a “beyond a reasonable doubt” standard, and therefore I am obligated to declare Mr. Farouk to be a dangerous offender.

The meaning of “a reasonable expectation” that a long term supervision order “will adequately protect the public” as those terms are used in s. 753(4.1) of the Criminal Code

[261] Once the mandatory declaration that Mr. Farouk is a dangerous offender is made, then s. 753(4.1) engages with respect to the appropriate sentence:

Sentence of indeterminate detention

(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 ... a serious personal injury offence.

[Emphasis added]

[262] In order to determine the appropriate sentence for Mr. Farouk, I must determine the meaning of the test in s. 753(4.1) of a “reasonable expectation” that “a lesser measure [than an indeterminate sentence] will “adequately protect the public against the commission by the offender of … a serious personal injury offence.”

[263] Section 753(4.1) is the result of a statutory modification made in response to the decision in R. v. Johnson, 2003 SCC 46, 177 C.C.C. (3d) 97. Johnson concludes, in paras. 15-16, that the pre-2008 approach, by the use of the word “may,” gave the court discretion regarding whether to declare an individual to be a dangerous offender even if the criteria for a dangerous offender had been proved beyond a reasonable doubt.

[264] Johnson also confirmed, at para. 29, that the court ought to impose the least restrictive sentence that reduces the threat of harm to the public to an acceptable level:

29 … The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met.

[Emphasis added]

[265] Before the 2008 amendments, if the court was satisfied that there was a “reasonable possibility of eventual control of the risk in the community,” a LTSO could be made instead of ordering an indeterminate sentence. As well, even if all four criteria under s. 753(1) were met, a court could still decline to label the offender as a dangerous offender.

[266] By contrast, the 2008 amendments require a declaration that the offender be declared a dangerous offender if the Crown proves the four part test beyond a reasonable doubt. There is no discretion on the preliminary declaration.

[267] The principle of de minimus intervention as outlined in Johnson continues to apply following the 2008 amendments, in order to ensure that Charter protections are respected.

[268] Under the new test, the court is required to impose an indeterminate sentence unless the court is satisfied by the evidence adduced at the hearing that there is a “reasonable expectation” that “a lesser measure will adequately protect the public.”

[269] In R. v. D.M.L., 2012 ONCA 78 at para. 3, [2012] O.J. No. 475, the Court of Appeal summarized the effect of the 2008 amendments as follows:

3 The sentencing judge applied the law that was in effect at the time the appellant committed the predicate offence. In July 2008, the Tackling Violent Crime Act came into effect. As the title of the Act might suggest, these amendments were intended to streamline the dangerous offender process and make proof of dangerous offender status easier, especially for an offender like this appellant who had two prior convictions for primary designated offences. The amendments also removed the discretion not to find a person a dangerous offender if the offender met the criteria set out in s. 753 of the Criminal Code. However, the amendments also gave the judge the discretion to impose a long term supervision order on a dangerous offender, instead of the indeterminate sentence. Under either scheme, the route to the long term supervision order is similar. Under the old regime a long-term offender order could be made if there was a reasonable possibility of eventual control of the risk in the community. The new regime speaks of a reasonable expectation that a lesser measure (i.e. a long term supervision order following a determinate sentence) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[270] In attributing meaning to s. 753(4.1), the purpose of the dangerous offender legislation must be kept in mind.

[271] The legislation is focused on the prevention of future crimes. In determining a sentence for a dangerous offender, the traditional balance between the objectives of sentencing (rehabilitation, deterrence, retribution, prevention) is shifted to prioritize prevention: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at p. 329 per La Forest J, [1987] S.C.J. No. 62.

[272] Justice Gonthier reiterated the theme of the enhanced importance of prevention and protection of public safety in R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229 at p. 282, [1994] S.C.J. No. 42:

In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety. If there is, the dangerous offender sentencing allows the justice system to more precisely tailor the actual time served by the offender to the threat that he poses to society. The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. An indeterminate sentence is not an unlimited sentence. If, in the case at hand, the psychiatrists testifying on behalf of the accused are correct in their assessment that Mr. Jones will be fit to be released in ten years, then he will be liberated at that time. The offender faces incarceration only for the period of time that he poses a serious risk to the safety of society. In the interim, it is hoped that he will receive treatment that will assist him in controlling his conduct. To release a dangerous offender while he remains unable to control his actions serves neither the interests of the offender nor those of society.

[273] In R. v. D.V.B., 2010 ONCA 291 at para. 58, 100 O.R. (3d) 736, leave to appeal refused [2011] S.C.C.A. No. 207, Moldaver J.A. (as he then was) reiterated that in the balancing between the individual’s interest and the public, the public safety prevails:

58 In sum, if persons who are otherwise highly dangerous, cannot meet the relatively modest requirements of s. 753.1(1)(c) in the generous timeframe allotted by Parliament, then in my view, they should be declared dangerous offenders and given an indeterminate sentence. As my colleague Cronk J.A. explained in R. v. Little (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20, at para. 70 (leave to appeal to the S.C.C. denied April 24, 2008, [2008] S.C.C.A. No. 39):

The court is required on a dangerous offender application to balance the liberty interest 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.

[274] The Crown does not suggest that the onus is upon the accused to prove a lesser measure than an indeterminate sentence is warranted, and indeed, there is no such onus. The sentencing judge must base his or her decision on the whole of the evidence adduced. However, while the defence is not obliged to present evidence that a lesser sentence would be adequate, without any such evidence, the court may not have any evidentiary basis upon which to conclude that there is a “reasonable expectation” that a lesser sentence could reduce the risk to an “acceptable level”: R. v. F.E.D., supra at para. 50.

Meaning of “a reasonable expectation”

[275] The language of “reasonable expectation” imposes a stricter threshold than “reasonable possibility” as existed in the pre-2008 dangerous offender legislation: R. v. B.A.R., 2011 BCSC 1313, [2011] B.C.J. No. 1821 at para. 46, R. v. Taylor, 2012 ONSC 1025 at paras. 344-346, [2012] O.J. No. 1564. These two cases reviewed s. 753(4.1) and concluded that the change in language in the new provision was intentional, and created a new and higher standard than the “reasonable possibility” test. The Court in R. v. Taylor adopted the definition of a “reasonable expectation” established by the B.C. Superior Court in R. v. B.A.R.:

A “reasonable expectation” that a lesser measure will adequately protect the public in s. 753(4.1) should be interpreted to mean a confident belief for good and sufficient reason based upon the quality and cogency of the evidence heard on the application.

The meaning of “evidence of treatability”

[276] It is conceded that Mr. Farouk will never be cured of his personality disorder or traits of a personality disorder, or of his probable paraphilia for coercive sexual activity (if present). The evidence of Dr. Klassen is that a personality disorder, or negative personality traits, dissipates with age. The meaning of “evidence of treatability” ties into the interpretation of the statutory test of whether the court is satisfied that there is a reasonable expectation that a LTSO will adequately protect the public.

[277] The evidence of treatability must meet three criteria in order to satisfy the goal of protecting the public. The Court of Appeal set out those three criteria in R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 (C.A.) at para. 47, 201 C.C.C. (3d) 541, leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 145:

• There must be evidence of treatability that is more than an expression of hope.

• The evidence must indicate that the offender can be treated within a definite period of time.

• Finally, the evidence of treatability must also be specific to the offender.

[278] A helpful elaboration of the three-part test of treatability is found in R. v. G.L., 2007 ONCA 548 at para. 42, [2007] O.J. No. 2935. Madam Justice Cronk interpreted the meaning of the evidence of treatability to mean an inquiry into whether a long term supervision order is sufficient to reduce the offender’s risk to an acceptable level:

42 I do not read Johnson as displacing the principle that, to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions in the Code, evidence of treatability that (i) is more than mere speculative hope, and (ii) indicates that the specific offender in question can be treated within an ascertainable time frame, is required. The requisite judicial inquiry on a dangerous offender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offender provisions of the Code are "sufficient to reduce [the offender's] threat to an acceptable level." [Emphasis added.] The determination of whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatability, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public.

[Emphasis added]

[279] A more recent statement from the Court of Appeal on the meaning of treatability is found in R. v. C.N., 2010 ONCA 418, [2010] O.J. No. 2418, a case which considers the pre-2008 Criminal Code provisions. The court confirmed in brief reasons, at para. 2, that hope or chance of successful treatment is not sufficient to meet the test of a reasonable possibility of reducing the risk to the public, and that there must be a time frame within which treatment can be expected to take place.

[280] In determining whether the public will be adequately protected by a lesser sentencing measure, the sentencing court may consider the offender’s amenability to treatment, and the prospects for the success of treatment. Whether the offender can be treated or his risk reduced to acceptable level within a specific time frame is critical. Expert psychiatric evidence, the offender’s past offending behaviour, and the offender’s correctional history are highly relevant when assessing the likelihood of the successful treatment or rehabilitation of the offender: R. v. G.L., supra at paras. 36, 40-44; R. v. McCallum, supra at para. 46; R. v. Allen, 2007 ONCA 421 at paras. 25-28, 86 O.R. (3d) 376.

[281] The protection of the public is the paramount consideration in the application of the dangerous offender provisions. To apply the law in accordance with that primary objective, there must be evidence specific to the offender that supports the finding that the offender will be treated and his risk will be sufficiently reduced by a specified time, so that public is protected.

[282] As confirmed in the recent Ontario Court of Appeal decision in R. v. Solano, 2014 ONCA 185 at para. 15, [2014] O.J. No. 1118, “[r]esort to the long-term offender regime is appropriate only where there is evidence that an offender can be meaningfully treated, so the offender’s risk to the public can be controlled at an acceptable level, within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of the offender’s risk in the community, is insufficient to ground a determinate sentence: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.”

Meaning of “a lesser measure will adequately protect the public”

[283] The Johnson decision, while interpreting the legislation prior to the 2008 amendments, provides guidance as to how to interpret a reasonable expectation that “a lesser measure will adequately protect the public”:

32 In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level. Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed by a long-term community supervision order of a maximum of ten years in accordance with the Corrections and Conditional Release Act. Supervision conditions under s. 134.1(2) of the Act may include those that are "reasonable and necessary in order to protect society". The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses -- and to do so without resort to the blunt instrument of indeterminate detention. If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention.

[Emphasis added]

[284] I adopt the test in Johnson. I must be satisfied that there is a reasonable expectation, defined as a confident belief for good and sufficient reason based upon the evidence, that a penitentiary sentence followed by a 10 year LTSO will “reduce the threat to life, safety or physical or mental well-being of other persons to an acceptable level.”

Treatability

[285] Before considering the position of the Crown and defence on the question of treatability and before summarizing the relevant evidence on this issue, it is helpful to understand the treatment programs presently available both in the institutional setting and in the community.

Evidence about Treatment Models Presently Available in the Federal System

[286] Petrina Lemieux testified at this hearing, describing the new integrated treatment programs now being instituted across Canada for sex offenders and for offenders in general.

[287] There are three branches to the program: aboriginal, sex offenders and general population. Within the sex offender program there are still three streams including high intensity, moderate intensity and maintenance. The program was initiated in the Pacific region, followed by the east, and is beginning now in Ontario and Quebec. The new integrated program is designed partly to deal with the problem of extensive waiting times before offenders could obtain programing.

[288] As the program is just beginning, Ms. Lemieux was not able to testify about what wait times for programing will be in the future.

[289] As in the past, priority for attendance at programs is given to offenders with a fixed sentence, next to long term supervision offenders, and finally to offenders serving an indeterminate sentence.

[290] The model for the sex offender programs will be similar to the previous program, but will be run by “Correctional Program Officers,” not psychologists. These individuals have some sort of post high school education, although a university degree is not required. Candidates must also have some practical experience.

[291] Correctional Program Officers receive two weeks training for general strategies for behavioral change, and they follow a manual in the treatment programs.

[292] Those working with sex offenders receive one week additional training. There is a specialized unit for sex offenders at Joyceville, where the correctional program officers will conduct the new sex offender programs under the supervision of a psychologist.

Programs Available in the Community

[293] Ms. Do Rego, who has many years’ experience as a parole officer and a supervisor, confirmed the comprehensive intake process to evaluate the needs of the offender and recommendations for programs or treatment prior to incarceration. She performed this assessment function for Mr. Farouk in 2005.

[294] She also testified about coordination between Correctional Service Canada and the community when high risk offenders, be they LTSO or indeterminate sentences, are released in the community.

[295] She confirmed that the programs available in the community are the same for those with an indeterminate sentence and for those with an LTSO.

[296] If Mr. Farouk receives a fixed penitentiary term followed by a LTSO, there are limited living options available to him upon release.

[297] Ms. Do Rego, Dr. Klassen and Dr. Looman all agree that Mr. Farouk would be required to reside at the CSC Toronto supervised residential setting at the Keele Street Center, at least initially. This center is technically designed for a maximal six month stay, but if necessary often houses high risk offenders for years on end. Dr. Looman gave an example of an inmate housed at Keele Street for 10 years.

[298] Keele Street is the most structured and comprehensive CSC facility in the Toronto area. It functions with a curfew, with locked doors at a certain hour. There are maintenance programs offered on site for sex offenders as well as for substance abuse. The parole officers work on site.

[299] Offenders with an LTSO are categorized as high risk, with interventions with parole officers twice a week, moving gradually to less supervision as the offender integrates into the community.

[300] Individual counseling may be arranged, and the offender may be eligible to attend sex offender programs at Keele Street or at CAMH. A person must be accepted into the program, as CAMH is no longer on contract with Correctional Service Canada.

[301] As a person integrates into the community, he may be eligible to go to a half-way house, with fewer restrictions, and eventually the person may be able to live independently, which is the ultimate goal of reintegration.

The Crown Position on Treatability

[302] It is the Crown’s position that the evidence in this case confirms that the only sentencing measure that will adequately protect the public is an indeterminate sentence.

[303] Alternatively, it is the Crown position that Mr. Farouk should receive a 16 year sentence, followed by a ten year LTSO. This structure will ensure close supervision of Mr. Farouk to age 60.

[304] Both experts confirmed in their evidence that at age 60, the chances of a sexual offender reoffending upon an adult stranger, based upon the actuarial studies, are reduced to zero. Between the age of 50 and 60 the decline is very significant.

[305] The Crown argues that Mr. Farouk chafes under supervision, and has exhibited in the past a consistent pattern of having difficulty with any limits placed upon his freedom. The second offence, which took place in July 2001, occurred when Mr. Farouk was under strict terms of bail. He violated his curfew, going out with a friend. Mr. Farouk acknowledged to Dr. Klassen that he regularly breached the terms of his bail. For the present offence, Mr. Farouk had been charged with drinking and driving offences and was on strict terms not to drink and was subject to a curfew, which he acknowledged that he breached regularly.

[306] His history in the community discloses that after his release on his warrant expiry date in April 2010, Mr. Farouk was compliant for one year while subject to an 810.2 supervision order. However, once that order expired, Mr. Farouk returned to his lifestyle of dancing, partying, and consuming alcohol and drugs: all part of his offence chain leading to the offences that took place in May 2013. His enabling family is not able to meaningfully supervise Mr. Farouk in the community.

[307] The Crown argues that the following factors should be taken into consideration, and that when all of the evidence is considered, the only sentence available is an indeterminate sentence:

• Nature of the predicate offences involving spontaneous violent choking of a random stranger on an elevator for the purpose of committing a sexual assault

• High risk to re-offend

• High scores in 2007 on the Paulhus Self-deception test

• Minimization and rationalization of offences

• History of poor compliance

• Inadequate family support

• Monitoring and supervision challenge

• Lack of motivation to change future behavior

• High actuarial scores on the risk assessment tools

• PCLR score

• Substance abuse

• Probable sexual paraphilia

• Personality disorder with anti-social and narcissistic traits

The Defence Position on Treatability

[308] The defence argues that the evidence discloses that Mr. Farouk is treatable and can be adequately monitored with structure and supervision in the community by a period of incarceration followed by a LTSO.

[309] Mr. Farouk is of normal intelligence, has no physical disabilities or illnesses, has participated well in two sex offender programs and made appropriate gains. Mr. Farouk has testified that he is willing to take Antabuse and anti-androgen medication to control his consumption of alcohol and his sex-drive.

[310] Treatment is not a standalone proposition. The defence concedes that Mr. Farouk also needs structure and supervision to ensure compliance. He needs to be released for some period of time to a structured, residential center such as Keele Street.

[311] At age 40, which would be when Mr. Farouk would be released into the community with a five and a half year sentence in addition to the time he has already served, there is a significant reduction in rates of reoffending just based upon the factor of age.

[312] The actuarial studies confirm that there is a steady decline in reoffending between the ages of 40 and 50. At age 50, the actuarial studies indicate that rates of recidivism for sexual reoffending against an adult stranger are significantly reduced, to approximately 10% over ten years, from the present risk that Mr. Farouk poses (approximately 52% over 10 years at present). By age 60, both Dr. Klassen and Dr. Looman confirm that the risk of sexually reoffending against an adult stranger is reduced to zero.

Evidence Relevant to Treatability: Institutional History

[313] The case law confirms that when considering the question of treatability, the institutional record provides relevant information that should be considered, as well as the offender’s conduct while in the community.

[314] Mr. Farouk has spent 11 of the last 14 years in custody, so I will review his institutional profile in some detail as relevant to the question of treatability, including his institutional infractions, his schooling, his performance in treatment programs, and his work history.

Institutional Infractions

[315] Dr. Klassen’s report confirms some infractions by Mr. Farouk when he was incarcerated in the provincial system for two and a half years, from 2001 to 2003.

[316] In this proceeding, I have heard considerable detail of Mr. Farouk’s institutional infractions when he was first incarcerated in the federal penitentiary system beginning in 2005, including suspected involvement in drugs, finding brew in his cell, a phone call to his ex-wife to inquire about his son that was not allowed, and finding a razor blade in his cell. At one point, Mr. Farouk was placed in solitary confinement for suspected drug involvement.

[317] Mr. Farouk’s mother testified about how Mr. Farouk, when first incarcerated, was being pressured to bring drugs into the institution. On two occasions Mr. Farouk’s mother tested positive on the ion scanner, and on one occasion she tested positive with a dog sniffer. On one occasion Mr. Farouk’s brother tested positive. It is acknowledged that the ion scanner can result in false positive test results.

[318] There was an incident where Mr. Farouk was slashed in the throat by another inmate. Mr. Farouk did not report the incident, and solicited the aide of another inmate to suture the wound rather than report the incident and seek medical aide.

[319] Once Mr. Farouk began the High Intensity Program in September 2007, until his release in April 2010, he had no further infractions and appeared to be working hard to get along with other offenders and staff in the programs.

[320] Mr. Farouk was arrested and incarcerated for the predicate offences in June 2013.There are no reports of any institutional infractions for the two-year period preceding this hearing.

[321] It appears that when Mr. Farouk was a much younger man he had difficulty with compliance in the correctional system. Since 2007 it appears, however, that he has exhibited ability to comply with the rules and expectations in the institution without incident.

[322] Dr. Klassen confirms as a plus factor that Mr. Farouk does not pose a current behavioural problem in the institution.

Completion of High School

[323] When Mr. Farouk was first incarcerated in the federal system he pursued his high school equivalency with success. He completed nine courses over a period of eight months with marks ranging from 71 to 91%, obtaining his GED on April 26, 2007.

Participation in Treatment Programs

[324] Mr. Farouk participated and responded well to both the high intensity, and the medium level sex offender programs.

[325] The following is a summary of Anita Cumbleton and Dr. Looman’s psychological assessment dated April 7, 2008:

Mr. Farouk’s motivation in both group and individual sessions has been appropriate since the beginning of the program. He consistently attends sessions (There was one excused absence for a medical appointment) and completes all homework assignments; in fact, he has completed extra assignments as well as working at some of the major assignments earlier than required. To his benefit, Mr. Farouk appears to have little difficulty understanding the concepts; and applying these to the assignments and/or personal life experiences. His participation in group discussions displays that he is able to fully comprehend the concepts and explain them to others as well as showing insight into his personal situations. Mr. Farouk has displayed an ability to apply some of the taught skills to his behavior on the unit and has responded appropriately to some frustrating and/or difficult situations. He is encouraged, however, to continue to monitor his thinking and challenge those distortions that allow him to engage in other negative behaviours (e.g. system bashing, questionable/inappropriate humour, negative/hostile statements about others). At present, Mr. Farouk has made progress in identifying and examining some of the factors related to his sexually assaultive behavior. In addition to continued review of these factors, Mr. Farouk will need to identify effective coping strategies that he can employ when dealing with these risk factors, and practice these skills so that he may be better able to generalize them to community living.

[326] The following is an excerpt from his parole officer, Ms. Bradford, confirming her recommendation dated May 23, 2008, for a transfer to Bath Institution and for a gradual release into the community:

His release plan appears quite reasonable at this time. A transfer to Bath Institution is considered to be the next step in his release.

The focus of this inmate’s correctional plan is on his personal/emotional orientation and preparation for community release. Medium security will allow him to progress in his plan and meet the objective of a gradual, structured and monitored eventual release to the community.

Security issues are not currently present. He is quite able to function in the open environment at Bath as he is able to maintain appropriate self-care and is motivated for a safe reintegration to the community. M. Farouk does not have any known incompatibles noted at Bath Institution.

He has not posed any serious security concerns at RTC-O and has fully participated in treatment. He is presently the range representative and interacts appropriately with staff and inmates.

He is well aware of his need to adjust positively and without difficulty to a medium security environment such as Bath Inst. He is also aware that there will be zero tolerance of any medium security that his classification could be increased.

[327] The following is the recommendation of Dr. Serran, who led the Medium Intensity Sex Offender Program, dated June 12, 2009:

It was recommended in the Final Treatment report from RTC that Mike continue maintenance programming at the institutional or community level. Given that a maintenance program was not going to be offered at Bath Institution, Mike’s IP Jane Tassielli and the group psychologist consulted and recommended the Moderate Intensity Treatment Program.

Mike presented as highly motivated to participate in programming and believed it would be beneficial to him. He reported enjoying the program at RTC, stating he found it to be very informative and helpful. Mike was receptive to feedback and wanted to concentrate on outstanding issues in order to improve his lifestyle and decrease risk. Overall, Mike’s participating in group was very good. Initially, he was visibly disinterested in some of the discussion but behavioural strategies were employed and from that point forward he was more energetic and rested. Mike became more engaged, active, and emotionally connected over the course of treatment, explaining that initially he found some of the feedback of others was “overkill.” His written work was excellent and he appeared to put strong effort into his assignments. Mike also assisted several other group members and volunteered to help anyone who needed it. Mike presented as knowledgeable, insightful and consistently motivated to make necessary changes. Mike appeared to enjoy the treatment program and commented on various occasions that he was learning a lot about himself. As an indication of his commitment to the program, Mike attended for session on the day of a planned work refusal, which would cause hassle and pressure from other inmates. Mike stated that he viewed his program as important for his personal growth rather than going along with the politics.

Mike identified the following risk factors: Internal (feelings of anger, depression, hopelessness, frustration; distorted cognitions about prostitutes and sexual activity; inappropriate sexual arousal), External factors (substance use, attending night clubs, partying, negative peer influences, attending strip bars) and Lifestyle factors (unstable lifestyle, partying, casual sexual activity, poor use of leisure time, lack of employment). Through discussion, we also highlighted a dismissive or casual approach to intimate relationships as well as unhealthy and conflicted intimate relationships.

POST-TREATMENT RISK ASSESSMENT AND RECOMMENDATIONS A pre-treatment risk assessment was completed at RTC (O) (see Pre-Treatment Report dated 2007/11/26). According to actuarial measures, the Static-99 score placed Mike in the moderate-high risk category relative to other adult male sex offenders. Individuals with these characteristics, on average, sexually reoffend at 33% over 5 years and 38% over 10 years. Corresponding violent recidivism rates for this group are 42% and 48%, respectively. Following the High IntensityTreatment Program, Mike’s dynamic risk was reassessed via the Stable-2007 Needs score placed him as moderate needs on this assessment instrument, which is a decrease from his pre-treatment dynamic risk. Mike’s post-treatment risk for sexual recidivism and violent recidivism was deemed to be in the MODERATE-HIGH range. Treatment gains were observed on the dynamic risk factors of general self-regulation (i.e., impulsivity and negative emotionality/hostility) and sexual self-regulation (i.e. deviant sexual preference).

During the current program, Mike maintained and further developed his skills in the domains of healthy relationships and sexuality, coping strategies, lifestyle management, and support. Following the current program, Mike’s post-treatment risk is deemed to be in the MODERATE range. It is recommended, given Mike’s lengthy period of incarceration and young age, that he be released on a residency prior to his Warrant Expiry in order to allow him the opportunity to reintegrate into the community with support and supervision. Mike is highly motivated to remain offence-free and to build a healthy lifestyle. Mike should continue participating in maintenance programming in the community.

[328] It is clear from the institutional record that Mr. Farouk participated and performed well in treatment.

Work History

[329] After completing the Medium Intensity Sex Offender Program, Mr. Farouk worked in Bath institution in the kitchen with glowing reports from his supervisors. He was at the highest pay level and received excellent ratings for participation, interpersonal relationships, attitude, behavior, effort, motivation and punctuality.

[330] The following are examples of excerpts from his work records:

Inmate Application for Employment (July 21, 2008): We need a librarian. I am willing to fill in until discharge. I have good clerical skills and is Gr 12 Educated. I need some work to fill my time constructively, until I leave. Please consider me for this position. Better than me sitting around doing nothing. Thank you. Michael Farouk.

Offender Pay Review (May 26, 2009): Farouk did successfully complete the Sex Offender Intensive group 09-04-17. He is currently assigned in a new program and is working as a house cook in Unit 3. Reports to date indicate he completes all his work in a consistent manner with excellent results in all areas.

Offender Pay Review (August 25, 2009): Farouk’s most recent job review dated in June 09 by his Kitchen supervisor R. Day was excellent review in all areas. Supervisor Day stated – quote – “Mr. Farouk has impressed me the most out of all the offenders currently working in the kitchen. He is a very studious person at work, good work skills and habits. He is clean, punctual, courteous with all staff and seems to have a desire to learn various cooking skills while employed.”

[331] When Mr. Farouk was in the community after his release in 2010 he was working, although he changed jobs with some frequency. He was working at the time of the predicate offence. There are no references from any prior employers in evidence in this proceeding.

Treatability – Analysis

[332] As previously indicated, the evidence of treatability must meet three criteria in order to satisfy the goal of protecting the public:

• The evidence of treatability must be more than an expression of hope.

• The evidence must indicate that the offender can be treated within a definite period of time.

• Finally, the evidence of treatability must also be specific to the offender.

The Actuarial Tests and Treatability

[333] I have concluded that Mr. Farouk’s PCLR score of between 25.5 and 26.5 places him, according to Dr. Klassen’s evidence, between the 60^th and the 70^th percentile and in the moderate risk category compared to the general prison population.

[334] Dr. Looman fleshed out what these PCLR scores mean in terms of prediction of risk. He testified that the PCLR scores are relevant to compliance by offenders in the community. Those with scores less than 20 tend to be compliant without supervision, those in the medium range have some compliance issues, and those with scores above 30 have difficulty with compliance. A PCLR score of 25.5 to 26.5 is in the middle group for compliance. Dr. Looman confirmed the need for checking up on an offender with these PCLR scores regularly, and any supervision plan should require the person to check in regularly. The degree of supervision required for Mr. Farouk is not as intense as needed for offenders with scores in the 30 plus category.

[335] Dr. Klassen agreed that PCLR scores assist in assessing risk – the higher the score, the greater the risk. Offenders with PCLR scores over 30 are an indicator of significant compliance problems.

[336] Dr. Klassen testified that the PCLR scores are not a “surgical instrument” and that a score of 25.5 rounded to 26 is not a statistical difference to a score of 29.5 rounded to 30.

[337] Dr. Looman disagreed, and testified that in his view, a score of 25.5 to 26.5 is a significant difference from a score of 29.5 rounded to 30. The former score places Mr. Farouk in the moderate percentile, somewhere between 60^th and 70^th percentile, compared to the 84^th percentile. It appears to me that the percentile scores speak for themselves.

[338] The PCLR percentile scores place Mr. Farouk at a moderate risk category, compared to his percentile scores on the actuarial tests for sex offenders, which place him at a much higher risk category.

[339] Dr. Klassen accounts for this difference in risk as being related to Mr. Farouk’s problems with substance abuse and his probable coercive disorder.

[340] The experts agree that the Static-99R scores and the SORAG risk assessment place Mr. Farouk at somewhere between the 92^nd and 98^th percentile, compared to other sexual offenders.

[341] His Static 99-R score places him at high risk to reoffend sexually. Under standard conditions of release, the risk of reoffending for a person with a profile such as Mr. Farouk presently is 52% over 10 years, and at age 40 is reduced to 46% over 10 years. For the reasons that I have outlined, I decline to attach much if any weight to the SORAG predictions of risk as they are outdated and are not a comparable population.

The Diagnosis and Treatability

[342] Mr. Farouk has three intersecting problems including his personality issues, his alcohol and substance abuse and his probable sexual paraphilia.

[343] Mr. Farouk has been diagnosed by Dr. Klassen as having a general personality disorder, with anti-social and narcissistic traits and a probable diagnosis of anti-social personality disorder. Dr. Looman and Ms. Cumbleton did not have much difficulty with this diagnosis although Dr. Looman expressed the view that if all the DSM-V criteria are not met, he would not make the formal diagnosis. As it was not clear whether Mr. Farouk had problems early in his life such that they meet the diagnostic test, Dr. Looman would not have made the diagnosis of a general personality disorder but acknowledges the problematic personality traits. As Dr. Klassen interviewed Mr. Farouk recently, including reviewing all of the data, I accept his diagnosis.

[344] A personality disorder emerges, according to Dr. Looman, in late adolescence and cannot be cured per se. Dr. Klassen testified that people with personality disorders lead, in his words, “crappy lives” that are unsatisfying but they do tend to “settle.” He testified that “age cures all.” He testified that at the age of 40, 50 or 60, people with personality disorders do not become caring, but they stop doing things and “impulsivity and offending behavior drops off.” He agrees that Mr. Farouk chafes when under restrictions, that this chafing is related to his personality problems, and that this response will “need some work.”

[345] The Crown has forcefully pointed out in her oral and written submissions, as well as her cross-examination of Mr. Farouk, the various versions of events given by Mr. Farouk over time, his duplicity and numerous lies. She asserts that Mr. Farouk’s inability to take full responsibility for his actions, his various and ever-changing versions of his offences, and his continued lying means that he is not treatable.

[346] I do not accept the Crown’s position on this issue.

[347] Mr. Farouk engages in self-deception, which Dr. Looman explains is a means of self-protection and self-deception. He lies with frequency and changes his version of events to suit his purpose.

[348] However, the pattern of lies, although troubling, does not mean that Mr. Farouk is untreatable, as the Crown suggests.

[349] Interestingly, Dr. Looman testified that denial of responsibility and lying is not statistically related to recidivism with sex offenders. He testified that before treatment, denial and lying is the norm. For sex offenders, Dr. Looman testified that the majority have some level of denial. In his experience for years with Correctional Service Canada, 80% of offenders beginning the sex offender programs deny aspects of their offending, and by the end of the program, denial is reduced to 20%. He further testified that a person may still acquire the emotional management and social skills necessary to succeed in treatment even if the offender does not “fess up entirely” to his offences.

Undertaking to Take Medication

[350] Dr. Klassen confirmed that Mr. Farouk’s risk of reoffending would be dramatically reduced if he consents to taking anti-androgen medication as well as Antabuse.

[351] Dr. Klassen testified that there are no known side effects of anti-androgen medications, other than osteoporosis. Medication can be given for this potential problem, similar to medication offered to post-menopausal women to assist with bone density, including calcium and vitamin D.

[352] The anti-androgen shots are administered once a month or once every three months and the testosterone level can be effectively monitored.

[353] Dr. Klassen testified that there are no contraindications and that in his experience the medication had been a liberation for many of his clients, particularly pedophiles. Dr. Klassen confirmed that the taking of anti-androgen medication is a discussion between the treating psychiatrist and the patient. If Mr. Farouk is in a positive stable relationship, requiring sexual intimacy, then the anti-androgen treatment may not be appropriate in the circumstances. In those circumstances, Antabuse could still be prescribed by the treating psychiatrist.

[354] Late in the day in these proceedings, Mr. Farouk filed an undertaking and testified that he is willing to take both Antabuse and anti-androgen medications prior to his release into the community and while under a LTSO, if prescribed by his treating psychiatrist. The Crown challenges the sincerity of this undertaking, given his past history of duplicity and lies.

[355] The defence argues that the signing of the undertaking and submitting to cross-examination by Mr. Farouk as to his offences and past breaches is a gesture of good faith.

[356] I appreciate the Crown’s position that Mr. Farouk coming forward so late in the day and professing willingness to take treatment may appear to be suspect, although aspects of his evidence and his admissions against interest seemed honest.

[357] The Crown suggests that Mr. Farouk is attempting to manipulate this court by filing the undertaking to take medication in his treatment for his advantage to avoid an indeterminate sentence. She suggests his word is worth nothing as he has consistently failed to abide by conditions imposed and undertakings given in the past.

[358] The defence argues that Mr. Farouk is sincere in realizing that he will benefit from such treatment. He filed the undertaking with the court, and he testified in cross-examination. He exposed both his strengths and weaknesses in cross-examination. This evidence is but one fact to take into account which is relevant to the question of treatability and reducing risk to the public.

[359] Mr. Farouk testified that after hearing the expert evidence of Dr. Klassen at this trial about other offenders taking medication, he felt that it could be a liberation for him, and that “medications will change my life, which is my goal.”

[360] Mr. Farouk testified that he trusted Dr. Klassen, and that he was reassured when he heard during this hearing that there were no negative side effects from taking the anti-androgen drugs, other than bone density problems, which are treatable. He had heard that the medication caused growth of breasts and lactation.

[361] Without doubt, embracing taking the medication if prescribed will make Mr. Farouk’s journey in the community an easier one, both practically and emotionally. I accept the filing of the undertaking as a gesture of good faith. The filing of the undertaking and his evidence, however, is only one fact to be taken into account in the evidence as a whole. I agree with the Crown that given Mr. Farouk’s history, there must be caution before relying on his word. Mr. Farouk’s voluntary participation in his treatment conditions would be optimal.

[362] In any event, the term for such treatment can be effectively imposed as a term of Mr. Farouk’s release.

[363] As I will outline later in these reasons, from a practical and legal point of view, in all probability a term imposed by the National Parole Board for Mr. Farouk’s release under a LTSO will be to participate in treatment by a psychiatrist and to take medications as prescribed. Mr. Farouk will have to comply with the medications prescribed by his psychiatrist, or he will face the significant penal consequences of a breach of his LTSO.

Mr. Farouk’s Attitude towards Treatment

[364] Mr. Farouk testified as to his desire to conquer his problems and to build a life. In the context of this wish, he signed the undertaking.

[365] Based upon my observations of Mr. Farouk, it appears to me that he was sincere in his desire to live a normal life and conquer his problems. It is fair to say that Mr. Farouk took some responsibility for his actions in his interactions with Dr. Klassen, and made some significant admissions against his interest, such as acknowledging a sexually coercive preference while under the influence of drugs and alcohol, and trusting the diagnosis of Dr. Klassen. Clearly, though, he minimized other aspects of his past history including what he said to Dr. Klassen. Mr. Farouk has a history of denial and lies which is part of his problematic personality traits, and those traits appeared during his evidence.

[366] It appears that Mr. Farouk has accepted responsibility for the underlying facts for the 2000 and 2001 offences in his disclosures to Dr. Klassen and in his evidence before this court, with perhaps the exception of whether he ejaculated or not in one of the early offences.

[367] When testifying in this proceeding, he danced around the truth with respect to the predicate offences. This approach may be related to an outstanding appeal. In the face of outstanding appeals in the past, he has not acknowledged responsibility and the underlying facts for the offences until the appeal has been resolved. The present denial may be similar to his past pattern, and it would not be a fair criticism of Mr. Farouk taken in this context. I draw no negative inferences from Mr. Farouk’s position on the current offences. He has the right to appeal, and exercising this right cannot be taken, as the Crown suggests, as an indicator of duplicity and manipulation. As Dr. Looman confirmed in his evidence, denial of the underlying facts for sexual offenders is the norm and not the exception prior to treatment.

[368] Dr. Klassen confirmed that Mr. Farouk in the past engaged in treatment, that he is physically healthy and cognitively intact and that he has not been an institutional behavioral problem. This positive evidence was confirmed by Dr. Looman.

[369] Dr. Klassen further noted “in fairness, the substance abuse problems and probable paraphilia disorder has not been targeted in treatment.”

[370] Prior to his release in 2010, Mr. Farouk did not receive any specific treatment for substance abuse, including alcohol and drugs, even though these were factors identified as important triggers in his offence cycle. For all offences, Mr. Farouk was under the influence of alcohol and drugs and consumption of alcohol is part of his offence chain.

[371] As I have outlined earlier in these reasons, I conclude that Mr. Farouk has a probable paraphilia for coercive sexual relations, at least while under the influence of alcohol and drugs. The Crown in her cross-examination obtained many admissions from Mr. Farouk on this issue, admissions that confirm Dr. Klassen’s tentative diagnosis. Mr. Farouk also stated in re-examination that he was not “turned on by rape,” which contradicts the admissions so freely given under able cross-examination. I am left, after hearing the evidence, with the probable diagnosis of the sexual paraphilia. Mr. Farouk’s evidence adds weight to this probable diagnosis.

[372] Clearly in any treatment program, any sexual paraphilia will be addressed. If Mr. Farouk has truly acknowledged a problem with coercive sexual preference in accordance with his evidence in this proceeding, as Dr. Looman says, he will be much more amenable to treatment for this aspect of his problems.

[373] I find that this diagnosis does not, as the Crown suggests, require an indeterminate sentence to protect the public. It requires targeted treatment. Acknowledgment of the problem is the first step to treatment. If he does have the deviant preference, then the phallometric tests illustrate that Mr. Farouk is able to suppress deviant arousal, which, as confirmed by Dr. Looman, is considered to be a positive learned response.

[374] The institutional history confirms that Mr. Farouk performed well in both the High Intensity and the Medium Intensity Sex Offender Programs. He was motivated, made improvements and participated well. As well, he was a respected and valued worker receiving the highest pay category available with glowing reports after he had completed his programs.

[375] Dr. Klassen expressed concerns that Mr. Farouk’s positive presentation in treatment may not be sincere or that the results may not be sustained.

[376] I find based upon the evidence that Mr. Farouk was clearly motivated during his treatment. In his own testimony, he confirmed that he was doing everything he could to obtain his release from prison before his warrant expiry date in 2010. He should not be criticized for these efforts towards gaining his release. Although the motive for the behavior is relevant, it would be too jaded a view to take the position that Mr. Farouk’s progress and gains were but a manipulation.

[377] I note that Mr. Farouk was remarkably consistent and sustained in his positive behavior and level of cooperation with staff and other offenders for a period of almost three years during two intensive treatment sessions lasting many months, as well as an extensive period of work where his efforts were exemplary.

[378] Dr. Klassen confirmed that Mr. Farouk can benefit from additional treatment, certainly for substance abuse and the probable paraphilia. But he testified that Mr. Farouk needs more than treatment, and that he requires a “longitudinal maintenance type process.” As he testified, this is not a case of taking a dose of antibiotic and your problem is gone, but rather, an “attitudinal and behavioral conversation” that will endure over time.

[379] Dr. Klassen testified that Mr. Farouk retains some of his relapse prevention plan that he had learned in the programs, but that his skills were “rusty.” Dr. Klassen was of the view that once Mr. Farouk was in the community, he “put his relapse prevention plan in a box, and put it in the closet, as he did not feel that he needed it anymore.”

[380] Dr. Looman also testified that Mr. Farouk learned appropriate coping mechanisms while incarcerated and made progress, but once in the community, he did not put what he had learned into effect.

Conclusions as to Treatability

[381] The evidence confirms that Mr. Farouk in the past has exhibited that he is fully capable of participating, learning, and benefiting from treatment. This evidence from the past suggests that he can do so in the future. This evidence is cogent and convincing, is based upon fact not hope, is specific to the offender, can be achieved during the period of incarceration, and should be continued with maintenance in the community.

[382] Mr. Farouk needs treatment for substance abuse and his probable sexual paraphilia, which he did not receive in the past while incarcerated. Again, his past positive performance in the two sex offender programs confirms that he is amenable to treatment, and that he can benefit further from treatment or programs targeting his specific issues. Treatment is not a mere expression of hope, and is specific to the offender. The treatment can be offered and completed during his period of incarceration and can be continued with maintenance treatment in the community.

[383] Mr. Farouk requires treatment to help him reinforce his coping strategies and to develop internal controls. The treatment is not a quick fix, however, and is not the only answer. According to Dr. Klassen, Mr. Farouk needs both internal controls, which he will develop from treatment, as well as external controls such as structure and conditions imposed upon him upon his release.

[384] These external controls and measures available under a LTSO will be discussed in the context of considering whether the evidence supports a finding that there is a reasonable expectation that the public will adequately protected.

[385] For these reasons, I find that the evidence in this sentencing hearing confirms that Mr. Farouk is treatable.

Is there a reasonable expectation that the public can be adequately protected by a period of incarceration followed by a LTSO?

[386] I adopt the approach of Cronk J.A. in R. v. G.L, supra, to assess the question of adequate public protection. The determination is multifaceted. Whether an offender’s risk can be reduced to an “acceptable” level requires consideration of all factors, including treatability, that can bring about sufficient risk reduction to ensure protection of the public. It is not necessary to show that an offender will be “cured” through treatment or that his or her rehabilitation may be assured. What it does requires is proof that the nature and severity of an offender’s identified risk can be sufficiently contained in the community, so as to protect the public.

[387] Based upon the undisputed evidence before me, there are three matters to consider relevant to assessing the question of risk to the public, including:

• The expert evidence on the effect of age on an offender such as Mr. Farouk.

• Second, it is important to understand when there is a concern about increased risk, or if there has been a breach of conditions of LTSO, what proactive steps may be taken to protect the public and what the consequences of a breach are for the offender.

• The third area that provides context to this decision is to understand the measures available to supervise a person subject to a LTSO, including the ability to ensure that an offender takes medication if prescribed.

The Effect of Age on the Assessment of Risk and the Question of Age Desistance

[388] The case law in this area cautions against assuming an offender’s risk will dissipate with age based solely on statistical evidence about the general population. Such a conclusion should only be drawn on the basis of testimony from experts who have examined the circumstances of the particular offender. Evidence of a tendency in the general population, without more, is insufficient to determine that an offender’s risk of reoffending will decline with age. The evidence relied upon with respect to age-related decline must be, at least in part, specific to the offender: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (C.A.) at para. 5, [1989] O.J. No. 1033, leave to appeal to S.C.C. denied [1992] S.C.C.A. No. 5; R. v. Edwards, 2008 ONCA 414 at para. 11, [2008] O.J. No. 2055; R. v. Akbar, supra at para. 331; R. v. Herbert, 2006 CanLII 6449 (ON CA), [2006] O.J. No. 829 (C.A.) at para. 8, 207 O.A.C. 337; R. v. Nicholas, 2010 ONSC 2929 at para. 170, [2010] O.J. No. 2364, R. v. Grayer, 2007 ONCA 13, 215 C.C.C. (3d) 505 at para 74.

[389] In R. v. Edwards, supra, the trial judge reached the conclusion that age would reduce the offender’s future risk based upon the evidence. As the trial judge was satisfied based upon the evidence that the particular offender’s risk would reduce with age, the conclusion was upheld on appeal:

11 In my view, the Crown’s appeal should fail. The trial judge was well aware of the difficulty of applying statistical evidence regarding age-related decline in risk of reoffending by sexual offenders to a specific individual such as Edwards. Further, the trial judge did not, as alleged by the Crown, rely exclusively on the statistical evidence of age-related decline in reaching his conclusion. The trial judge also had the benefit of the extensive reports filed by Dr. Klassen and Dr. Glancy, as well as reports from the institution where Edwards has been incarcerated for over a decade. These reports indicated that Edwards had attended two sex offender treatment programs. From the second program, it was reported that Edwards had shown some progress with respect to developing insight into his offence cycle and formulating a realistic relapse prevention

[390] In this case, unlike several of the cases cited above, I heard unequivocal evidence from both Dr. Klassen and also Dr. Looman as to the effect of age upon recidivism rates for sexual assault against adult strangers.

[391] Dr. Klassen was clear that after age 60, sexual offending against adult females is effectively nonexistent. In his experience with 1500 to 2000 sex offenders, he has never seen a case of a man over the age of 60 convicted of rape. This was confirmed by statistics generated over time, submitted as an exhibit during his testimony. He stated that at age 50, in his experience, the statistics for reoffending change significantly:

Even between the age of 50 and 60 the decline is very significant. And I have only seen one case of a person over the age of 50 charged with a sexual assault against and adult female, and even that, it was a cohabiting female, so it was a bit of a strange situation. Stranger rape, I’ve never seen a stranger rape after age 50.

[392] Dr. Klassen confirmed that sex offenders as a group are not highly recidivistic. At the age of 50, the recidivism rate was down to 10% over ten years. Dr. Klassen cautioned, however, with respect to this statistic that “[t]his is an average for all rapists, and Mr. Farouk is at the 90 something percentile.”

[393] Dr. Looman also confirmed the age-related reduction for sex offending against adult strangers to be non-existent at age 60, with a significant reduction at age 50.

Supervision of LTSO: Consequences of breach of condition of LTSO v. indeterminate sentence and the issue of medication

[394] In addressing the question of risk to the community, it is important to understand what powers the supervisors of LTSOs have if there is a breach of the conditions imposed by the National Parole Board, or if there is a concern of a potential increase in risk.

[395] Ms. Do Rego testified as to the differences between the consequences for a breach of a LTSO, as compared to breach of a condition of a dangerous offender on parole.

[396] It is fair to say that in the case of a breach of a term of release for an indefinite sentence, the parole officer has more autonomy to act if there are public safety concerns to immediately take matters to the Parole Board to request a revocation of parole.

[397] If there is a breach of a condition of a LTSO, the parole officer can recommend one 90-day suspension for the offence and the offender will be arrested and incarcerated. The National Parole Board can then decide to change the conditions and release the offender back into the community.

[398] Alternatively, if there has been a breach of the conditions of release, the National Parole Board may, after the 90-day period, refer the matter to the criminal justice system. The Crown may lay charges; if they do, then the matter proceeds in the court system to determine whether there is a breach and the consequences flowing from a breach.

[399] Mr. Farouk will inevitably be required by the terms of his LTSO to abstain from consuming alcohol and drugs, and if there is a breach there will be serious consequences including incarceration.

[400] Relevant to this case, are the potential serious penal consequences to a long term offender who is in breach of a requirement to take medication, including Antabuse or anti-androgen medications, prescribed as part of his treatment.

[401] A conviction for breach of a LTSO is an indictable offence carrying a maximum term of imprisonment of 10 years: Criminal Code, s. 753.3(1). The ability to prosecute the breach of a LTSO as an indictable offence adds significant clout to the terms of a LTSO to ensure effective enforcement.

[402] Furthermore, for the protection of the public it is important to realize that proactive, preventative measures are available if a parole officer is concerned about potential increase of risk or concern to public safety for both LTSO offenders, and those subject to an indeterminate sentence, even in cases where there has been no breach.

[403] In the case of a dangerous offender with an indeterminate sentence, if there is a viable concern about an unmanageable increase in risk, the parole officer can recommend revocation of parole to the National Parole Board. If the parole is revoked, the offender must return to prison subject to an indeterminate sentence and reapply for release. The onus is upon the offender to earn his or her release.

[404] In the case of a LTSO, if there is a concern that the risk may be increasing but there has been no breach, the parole officer can suspend the LTSO and place the offender in custody. If the issue is not resolved by the parole officer within 30 days, the matter may be referred to the National Parole Board for a further 60 days. The Parole Board can alter the conditions of release to take into account any concerns about increased risk, but after 90 days the offender will return to the community if there has not been any breach of the conditions of the LTSO.

[405] As MacDonnell J. confirmed in R. v. Dorsey, [2009] O.J. No. 5368 (S.C.) at para. 124, “the ability to detain offenders for up to three months without charge and without bail on the basis of a parole officer’s belief that a condition of an LTSO has been breached is a significant enforcement mechanism. See also R. v. Cumming, 2009 ONCA 700, at paragraph 17, and R. v. Tremblay, 2008 ONCA 24, at paragraphs 20-21. So too are the consequences of a successful prosecution should a charge be laid.”

[406] I echo the views of MacDonnell J. The ability to detain an offender in custody for periods up to 90 days, not only when there has been a breach of a condition of a LTSO, but also when there is a concern that there is a potential increase in risk, is a very powerful enforcement mechanism to ensure compliance of conditions imposed in a LTSO.

[407] By way of summary, there need not be an actual breach of a LTSO for steps to be taken to protect the public. If the parole officer is concerned about an increase in risk, even without a breach of a condition of release, a person subject to a LTSO can be incarcerated for up to 90 days. The National Parole Board can alter the conditions of the LTSO to ensure the public is protected. If there has been a breach, the National Parole Board may refer the case to the Crown attorney in the criminal justice system. The consequences for breach are significant with a potential sentence for breach of up to 10 years of incarceration: Criminal Code, s. 753.3(1).

The Law as to Ability to Impose Conditions to take Medication as part of Treatment

[408] The National Parole Board cannot impose the condition to take medication. The National Parole Board can, however, mandate that an offender participate in psychiatric treatment and follow the treatment recommended by the psychiatrist, including taking prescribed medication that can include Antabuse and anti-androgens.

[409] This policy is confirmed in Correctional Service Canada’s policy manual entitled “CSC and Long Term Supervision Orders (LTSO),” which contains the following statement:

Conditions for an offender to take a sex-drive reduction medication cannot be imposed by the NPB. However, the NPB may impose a condition to Follow Psychiatric Counselling, as recommended by a psychiatrist. If the psychiatrist’s treatment plan includes a prescription for sex-drive reducing medication, CSC may interpret the offender’s refusal to take the medication as a breach of the LTSO condition. Monitoring medication can sometimes involve doctor / patient confidentiality issues. In these cases, CSC must rely on information from the doctor and / or the offender.

[Emphasis in original]

[410] Mr. Farouk will in all probability be required to take treatment and to take sex-drive reducing medication if prescribed by his treating psychiatrist.

[411] The law has developed to a point that Mr. Farouk will have the choice of taking or not taking prescribed medication. If Mr. Farouk chooses not to take the prescribed medication, then the refusal may be treated as a breach with the inevitable consequence of an additional penalty and incarceration as outlined above.

[412] The National Parole Board’s ability to impose treatment requirements as part of a LTSO has been discussed by the Ontario Court of Appeal in several cases. In R. v. Grayer, 2007 ONCA 13, 215 C.C.C. (3d) 505, the Court noted the absence of appellate commentary on the topic and, at para. 62, adopted the views expressed by Hill J. in R. v. Payne (2001), 2001 CanLII 28422 (ON SC), 41 C.R. (5th) 156 at para. 138:

[A]n offender on conditional release by way of a long-term supervision order may be compelled by a term of the order to undertake treatment and related pharmaceutical intervention where essential to management of the accused’s risk of reoffending. In other words, the offender's consent to such a condition is not required. Should the offender breach terms of the order respecting treatment or medication, he or she is subject to apprehension with suspension of the order pursuant to s. 135.1 of the Act or to arrest and prosecution pursuant to s. 753.3(1) of the Code. The entire object of the long-term offender regime would be undermined by providing the offender the ability to defeat risk management. Accordingly, mandatory treatment and medication conditions in an order are a proportionate response to protecting the public from a person who, by definition, is a substantial risk to reoffend.

[413] The Court of Appeal in R. v. Ramgadoo, 2012 ONCA 921 at para. 50, 293 C.C.C. (3d) 157, more recently and succinctly confirmed that if an offender who is subject to a LTSO refuses treatment, including taking prescribed medication, that he will be in breach and may be subject to imprisonment:

50 The appellant acknowledges that because no person can be forced to take medication against his or her will, a long-term offender who is subject to a mandatory order may refuse treatment. In the case of a refusal, s. 753.3 of the Code could be employed. It provides an offence punishable by a maximum sentence of 10 years for a breach of a long-term supervision order. If the appellant were to be convicted of failing to comply with his long-term supervision order and sentenced to a term of imprisonment, then under s. 753.4, the long-term supervision would be interrupted unless the court ordered its termination or reduction.

[414] Justice Garton in R. v. Smith, supra at paras. 92, 102 and 131-137, discussed the ability to ensure that an offender takes prescribed medication. She specifically confirms that serious penal consequences can result if an offender refuses to take medication prescribed by the psychiatrist as part of a LTSO and that protection of the public is the paramount concern:

136 The Parole Board will not impose a condition requiring an offender to take Antabuse as part of a long-term supervision release order. However, as noted above, it will impose a term that the offender participate in any treatment plan as recommended by his psychiatrist. If that plan included the taking of Antabuse, refusal to take the drug would constitute a breach of the supervision order, for which Mr. Smith could receive a sentence of up to ten years.

137 Long-term offender orders are concerned about the management of risk and the protection of society, with little role for rehabilitation. The dominant purpose of sentencing for breaches of long-term offender orders is the protection of society; rehabilitation plays only a small role. Corrections principles are part of the enforcement mechanism of a long-term offender order. Breaches of conditions that are central to the management of the offender in the community - such as failure to follow the treatment plan as recommended by the offender’s psychiatrist - are always serious and invite incarceration that is substantially longer than the case would be if a probation order condition were breached.

[415] It is clear, then, that the National Parole Board has the authority to order Mr. Farouk to comply with his treating psychiatrist’s recommendations, which may include the treating psychiatrist prescribing Antabuse and/or anti-androgen medication. Any failure to abide by these recommendations may be considered a breach of the LTSO and can result in incarceration of up to 10 years, pursuant to s. 753.3 of the Criminal Code, and the suspension of the LTSO, pursuant to s. 753.4 of the Criminal Code.

Conclusions as to Protection of the Public

[416] Section 753(4.1) stipulates that the court shall impose an indeterminate sentence unless it is satisfied by the evidence adduced at the hearing 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.” [Emphasis added.]

[417] I am required to impose a sentence of detention in a penitentiary for an indeterminate period unless I am satisfied by the evidence adduced during the hearing of the application on a balance of probabilities that there is a reasonable expectation that a lesser measure, in this case a penitentiary term followed by a ten year LTSO, will adequately protect the public against the commission by the offender of a serious personal injury offence.

[418] The protection of the public is the paramount consideration in the application of the dangerous offender provisions. To apply the law in accordance with that primary objective, there must be evidence specific to the offender that supports the finding that the offender will be treated and his risk will be sufficiently reduced by a specified time, so that public is protected.

[419] As confirmed in the recent Ontario Court of Appeal decision in R. v. Solano, supra at para. 15, “[r]esort to the long-term offender regime is appropriate only where there is evidence that an offender can be meaningfully treated, so the offender’s risk to the public can be controlled at an acceptable level, within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of the offender’s risk in the community, is insufficient to ground a determinate sentence: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.”

[420] It is the position of the Crown that an indeterminate sentence is necessary to protect the public, or alternatively, a sentence of 16 years followed by a LTSO bringing Mr. Farouk to age 60 when, according to the expert evidence, there will be no chance of reoffending.

[421] The defence puts forth a plan of supervision bringing Mr. Farouk to age 50 with a combination of incarceration with treatment, and a ten year LTSO, when the risks to the public statistically diminish significantly. Counsel asserts that this plan meets the statutory test for the protection of the public.

[422] In my view, the plan put forward by the defence, with a significant period of incarceration in the vicinity of five and a half years followed by a LTSO, meets the statutory test of adequately protecting the public. It is not necessary that the evidence disclose that there is no risk whatsoever to the public. Nor does the evidence have to indicate that Mr. Farouk will be cured. Rather, the evidence must disclose that the risk of Mr. Farouk reoffending is reduced to an acceptable level.

[423] In another case, Dr. Klassen testified about the shift from institution-based care to intensive, community-based care. In R. v. Cumming, 2009 ONCA 700 at para. 17, the Court of Appeal recognized Dr. Klassen’s evidence on this issue and ordered a LTSO instead of an indeterminate sentence. The summary of Dr. Klassen’s comments are very apt to this case:

17 Dr. Klassen was clear, however, that with the proper set of external controls on the appellant there is, in the language of s. 753.1 of the Criminal Code, a reasonable possibility of his eventual control in the community. Dr. Klassen described this as reflecting the shift in recent years from institution-based care to intensive community supervision, a shift that he believes has proven very successful. This includes regular or even daily monitoring of the individual, including where and with whom he is living and hworking, and ensuring that he is taking his medication and abstaining from alcohol consumption. Dr. Klassen underlined that the appellant has never been aggressively monitored in this way. He emphasized that the whole point of aggressive monitoring is to render immaterial the appellant's lack of motivation to change. Finally, Dr. Klassen said that if the appellant does not participate in the aggressive monitoring or, if he does and there are indications that he is proceeding along a road to re-offend, he can immediately be re-incarcerated before that happens, and charged with breach of his long-term supervision order. Dr. Klassen concluded that this type of monitoring has proven effective, and is available in Toronto. He therefore concluded that it offered a reasonable possibility of eventual control in the community of the risk presented by the appellant.

[Emphasis added]

[424] Dr. Klassen did not specifically testify about the shift in focus from the institution-based to intensive, community supervision in this case, but did testify about how well those in the community at Keele Street were managing high risk offenders such as Mr. Farouk. Dr. Klassen did not testify in this case about the scenario as to significant consequences when an offender breaches conditions, but Ms. Do Rego covered this issue amply in her evidence as outlined above.

[425] The potential for comprehensive monitoring was the theme in the evidence of Ms. Do Rego, who had involvement with Mr. Farouk’s initial assessment and has worked extensively in the community with high-risk offenders. This was also the theme of the evidence of Dr. Looman.

[426] The practical optimism, and the professional care and support available for high risk offenders such as Mr. Farouk with supervision by an experienced parole officer such as Ms. Do Rego as well as psychiatric treatment in the community, was reassuring.

[427] Mr. Farouk, like Mr. Cumming, has never had the benefit of proactive monitoring in the community.

[428] Unfortunately, contrary to the recommendations of the correctional staff, Mr. Farouk was kept to his warrant expiry date by the National Parole Board and was released into the community with minimum supervision in 2010.

[429] This was not the recommendation of Dr. Serran, or Lynn Bradford, his parole officer, who had recommended a more gradual release prior to his warrant expiry date with structure and supervision. Ms. Do Rego confirmed that this scenario of abrupt release of a high risk offender to little or no structure is to be avoided.

[430] In my view, given Mr. Farouk’s personality traits, his enabling family, his untreated problem with binge drinking and probable sexual paraphilia, Mr. Farouk’s reoffending in the context of an unsupervised release is not surprising.

[431] The Crown argues that Mr. Farouk chafes under supervision and resents limits on his freedom. In the past, he has breached numerous terms of bail supervised by his family, wife and girlfriend. These facts are undisputed, and Mr. Farouk will require close supervision, at least initially while in the community.

[432] It must be remembered, notwithstanding this chafing, that after his release, Mr. Farouk initially performed well while subject to the 810.2 order. He was working, reported regularly, was saving to buy a car, had a girlfriend and curbed his drinking. This is evidence of Mr. Farouk’s compliance in the community with a reporting requirement to third party police officer, as opposed to enabling family members. Mr. Farouk did well.

[433] After the expiry of the one-year 810.2 supervision order, Mr. Farouk was then on his own with no effective restrictions on his freedoms.

[434] Mr. Farouk had spent 9 years during his 20’s incarcerated. Once released, he told Dr. Klassen that he wanted to live a “normal life.” For him, a normal life was socializing, partying, dancing, drinking and consuming drugs.

[435] When he began to slip, as evidenced by his drinking and driving offences, there was no effective control on his behavior. After he wrecked one car, his loving, but enabling mother provided him with another. His brother, who is five years younger than Mr. Farouk, means well, but clearly has no ability to deal with Mr. Farouk if he begins drinking. After the second drinking and driving charge, Mr. Farouk was put on bail under the supervision of his mother and his girlfriend. He did not respect his bail conditions and there were no consequences to him for breaches until his arrest for this offence.

[436] Dr. Looman confirmed that a LTSO release is very different from a release on warrant expiry with no conditions. It is much more structured and is a gradual release, initially if with an escort if necessary, with privileges increasing over time and based upon compliance.

[437] Dr. Looman was clear that in his view Mr. Farouk did not need to be contained until approximately age 50, if containment meant incarceration. He was clear that what Mr. Farouk needed was monitoring and structure once in the community to ensure that he used the skills that he acquires during treatment. Dr. Looman confirmed that Mr. Farouk has the intelligence, he has the social skills, and he could have the self-awareness to succeed in the community.

[438] Dr. Looman testified about sex offenders released to the Correctional facility at Keele Street in Toronto, which is the residence with the maximal structure and supervision available in the community. According to his evidence, of the 75 sex offenders getting treatment and having access to the community, none reoffended, compared to violent offenders, where the rate of reoffending was closer to 30%. The study confirming these numbers was not available to be marked as an exhibit in these proceedings. Upon further inquiry, the Crown confirmed that the results of the study are presently in draft form, and have not yet been published.

[439] Dr. Klassen’s report concludes with the following remarks, at pp. 37-38:

With respect to community supervision (be it “reasonable expectation” or “reasonable possibility of eventual control of the risk in the community”) it’s my opinion that this gentleman needs to be contained through to approximately age 50; beyond age 50 perpetration of sexual assault upon adult female strangers declines very significantly, likely for age-related reasons. Should this gentleman be returned to the community, under either of the two aforenoted release scenarios, given this gentleman’s reportedly very good presentation in treatment, previously, it would be difficult to know, should he again present well, whether that presentation is sincere, or is likely to be sustained.

[440] The Crown suggested in argument that the words “needs to be contained” suggests that Dr. Klassen’s view was that Mr. Farouk should be incarcerated to age 50. I do not interpret either Dr. Klassen’s evidence to mean that Mr. Farouk needs to be subject to incarceration to age 50, nor do I interpret his report to mean this. Nor do I not accept the evidence considered as a whole supports this conclusion. I interpret this language in Dr. Klassen’s report as meaning that Mr. Farouk needs to be contained by being subject to conditions and supervision to age 50.

[441] Dr. Klassen was somewhat less optimistic than Dr. Looman about Mr. Farouk’s success in the community as reflected in the last sentence in his report, outlined above, questioning Mr. Farouk’s sincerity and ability to sustain treatment gains. He mentioned on several occasions that Mr. Farouk has already participated in endless hours of treatment, but still reoffended.

[442] Dr. Klassen talked of the need for two kinds of controls. The first type are external controls imposed upon Mr. Farouk without his choice including, for example, incarceration for a period of time, taking medications and imposed structured residency, such as Keele Street. He also talked of developing internal controls by renewing treatment for Mr. Farouk to refresh the rusty cognitive skills Mr. Farouk had learned while he was in the sex offender programs and treatment for his alcohol problem as well as his probable paraphilia for sexual coercion.

[443] Dr. Klassen confirmed that Mr. Farouk had acquired a relapse plan, but that his skills were “rusty.” Dr. Klassen also stated that Mr. Farouk needed further treatment that he had not previously been offered, including for substance abuse and his probable paraphilia.

[444] Dr. Klassen testified that Mr. Farouk needs a combination of treatment to develop both internal and external controls. If Mr. Farouk takes anti-androgens, Dr. Klassen acknowledged that this factor alone this will have a “huge risk reducing effect.”

[445] In my view, the somewhat more pessimistic view of Mr. Farouk’s potential performance in the community and the questioning of Mr. Farouk’s sincerity, are because Dr. Klassen did not adequately take into account the available controls and supervision that will be imposed upon Mr. Farouk by way of external controls during the ten years of the LTSO. Such controls stand in sharp contrast to his release conditions with minimal supervision in 2010. Dr. Klassen’s comments in Cumming, supra, apply equally to this case.

[446] The evidence confirms that Mr. Farouk did well for the last three years of his incarceration and he was motivated to change when he was released in 2010. He was compliant for the first year with minimal supervision under the 810.2 order. He was not able to sustain the gains that he made in treatment, however, as after the first year, there was zero external structure, reporting requirement or treatment.

[447] Mr. Farouk did not have the judgment to seek out treatment on his own, but given his cluster of problems, this failure is not surprising.

[448] He slipped back into his partying ways. Mr. Farouk bears ultimate responsibility for the outcome and his reoffending bringing him to this proceeding. However, as Dr. Klassen pointed out in Cumming, supra, the structure and support in the community is crucially important to reduce risk. Mr. Farouk has never had the opportunity to be released into the community with this necessary support and structure.

[449] I concur with Dr. Klassen’s recommendations for risk management, outlined in the conclusions in his report:

• Mr. Farouk would benefit from treatment including Reasoning and Rehabilitation, as well as assistance with respect to cognitive skills, including problems with problem-solving and self-regulation.

• Mr. Farouk should participate in ongoing sex offender programming targeted to his probable sexual paraphilia. Sex offender treatment should be continued into the community, at such time as Mr. Farouk may be released.

• Sex-drive reducing medication would be extremely helpful.

• Mr. Farouk should abstain from alcohol use entirely and in perpetuity. He would benefit from addiction treatment and alcohol-deterrent medication, as well as monitoring by means of frequent urinalyses, with respect to both alcohol and drug use; any suggestion of a return to substance use should result in a brisk response from those supervising him.

• Mr. Farouk should modify his lifestyle. He may benefit from more structured leisure/recreational interests, different from those which he’s pursued previously. He should seek and maintain employment.

• If return to the community is to be contemplated, Mr. Farouk should certainly only be returned to the community in the context of residence at a community correctional center (CCC) or a community release facility (CRF). Given the concern that the family presents as enablers, it is questionable whether he should return to live with family.

• At such time as Mr. Farouk may return to the community, his self-report, with respect to his activities, relationships, whereabouts, etc., should be corroborated or verified wherever possible given Mr. Farouk’s quite significant history of duplicity which will be a barrier and challenge, to those supervising him in the community.

[450] Dr. Klassen confirmed this is not a case of giving a course of antibiotic and moving on, but rather a process that needs to continue over time, that is a multi-faceted, longitudinal conversation that includes both ongoing externally-imposed controls as well as internal controls learned through treatment.

Conclusions

[451] I conclude, for the reasons that I have outlined, that Mr. Farouk can be treated while incarcerated. This will develop skills and coping mechanisms for internal controls. He needs further sex offender treatment as lessons learned are “rusty,” as well as specific treatment targeting his substance abuse and his probable sexual paraphilia. Mr. Farouk has exhibited in the past that he can benefit from treatment. His past positive performance shapes future reasonable expectations. There must be a continuum of treatment, structure and support when he is in the community.

[452] He will be subject to conditions of the LTSO imposing external controls upon him, including residency requirements such as Keele Street, at least initially. He will be required to submit to random drug and alcohol tests. Inevitably, he will be required to be under the care of a psychiatrist, and if appropriate, will be required to take Antabuse and anti-androgen medication prescribed. If he breaches a condition of release, or refuses to take medication that is prescribed, simply put, he will return to prison.

[453] In my view the statutory test is met. Mr. Farouk, for the reasons I have outlined, is treatable. He will never be cured of his personality defects, but they will, according to the evidence, dissipate with time. He will never be cured of his probable paraphilia, but he can learn coping mechanisms to control the risk. This behavior has only been exhibited while under the influence of alcohol and drugs. He has a binge drinking problem that leads to drug consumption that has never been addressed, and that too is treatable.

[454] Mr. Farouk has proved to be compliant and cooperative when released on the 810.2 supervision order with minimal controls. When under a LTSO, Mr. Farouk will be under a much more vigorous and tested system of supervision and treatment for ten years. There are significant consequences of breach including significant potential custodial terms.

[455] Mr. Farouk has many faults and disagreeable characteristics as ably pointed out by Crown counsel and as revealed in his testimony. He is not a person one warms to. He does have family support and love, which is an important factor for reintegration after so many years of incarceration. He is not alone. Clearly, his mother and brother are both hard workers and socially engaged. They cannot supervise Mr. Farouk, but can support him to assist him to return to a productive life. He does have capacity to form relationships as exhibited in his marriage and with his girlfriend at the time of the predicate offence, though I agree with Dr. Klassen that his relationships have been superficial and he has been far from faithful.

[456] Mr. Farouk is a good worker and bright. He could benefit while incarcerated from educational upgrading and courses to enable him to find a more fulfilling job when in the community. This issue was not canvassed during the hearing before me. During Mr. Farouk’s last period of incarceration, he finished high school and took a forklift licence test. He worked as an appreciated worker in the kitchen. In my view, the period of incarceration should focus not only on treatment but also on education and employment skills that he can use in the community.

[457] I find, based upon his candid disclosures to both Dr. Klassen and this court, that Mr. Farouk is motivated to change and wants to have a productive life. He underestimates how difficult this journey will be and how much effort and diligence it will require. I find based upon all of the evidence before me, that the internal controls that Mr. Farouk will acquire during treatment, coupled with the external controls imposed by the National Parole Board as terms of the LTSO, will more than adequately protect the public. These measures, in combination, will reduce Mr. Farouk’s risk of reoffending to an acceptable level during this process of positive change.

[458] I declare Mr. Farouk to be a dangerous offender.

[459] I impose a sentence of incarceration for a further five years for the choking offence, concurrent for the sexual assault and threatening charges, followed by a further six month consecutive sentence for the various breaches, followed by a ten year long term supervision order.

[460] Mr. Farouk has been incarcerated since June 2, 2013. Giving the usual credit of 1.5 for 1, this is an equivalent period of incarceration of three years, six weeks.

[461] Imposing this sentence, which is equivalent to a total sentence of 8 years and 7 ½ months, will ensure that Mr. Farouk has structure and supervision as necessary until he reaches the age of 50, in accordance with the recommendation of Dr. Klassen. At this point in time, his risk of reoffending based upon age alone will be significantly reduced, enhanced by the treatment and structure afforded by the LTSO.

[462] There is ample time for Mr. Farouk to receive the treatment that is necessary. The new sex offender programs are anticipated to take place over approximately four months. I did not hear evidence on the time line for treatment for alcohol abuse or for the probable sexual paraphilia, but I find that there is ample time to do the intake assessment, as well as ensuring time for all contemplated treatment prior to release. Maintenance treatment will continue in the community.

[463] Once in the community, if Mr. Farouk is not compliant with the terms imposed by the National Parole Board for the LTSO, including taking medication if prescribed, he will face significant consequences including periods of incarceration for breaches with potential penalties of up to an additional 10 years of incarceration.

[464] I conclude that the evidence considered as a whole confirms that the risk that Mr. Farouk poses to the community can be reduced to an acceptable level with an additional five and a half year sentence (which, taking into account time served, is equivalent to a total sentence of 8 years and 7 ½ months) followed by a ten year LTSO. I am satisfied that this sentence amply protects the public in accordance with the principles outlined in Solano, supra at para. 15, and Johnson, supra.

J. Wilson J.

Released: July 6, 2015

SCHEDULE “A”

Chronology of Significant Dates in Michael Farouk’s Legal and Institutional History

DATE	DESCRIPTION OF EVENT
January 8, 1997	Arrest for disorderly conduct and harassment in Onondaga County, NY. Pleaded guilty and received 1 year conditional discharge and a surcharge.
October 15, 2000	Charged with sexual assault with a weapon, armed robbery, and utter threats for incident involving N.S.
July 8, 2001	Charged with sexual assault, kidnapping, robbery, and fail to comply with recognizance for incident involving C.M.
November 15, 2003	Convicted of sexual assault, kidnapping, robbery, and fail to comply with recognizance. Charges stemming from events of July 8, 2001. Sentenced to 1 day after an equivalent of 66 months in pre-sentence custody (though having served only 2.5 years of actual time).
December 11, 2003	Pre-Sentence Report: Lina Kool, Parole Officer
December 12, 2003	Probation Case Plan: Aubrie Appel
November 26, 2004	Convicted of sexual assault with a weapon, armed robbery, and utter threats. Charges stemming from events of October 15, 2000. Sentenced to 7.5 years, but was given credit for 3 years in pre-sentence custody.
April 30, 2005	Psychiatric Report: Dr. Woodside
October 25, 2005	Preliminary Assessment Report: Ian James, Parole Officer
December 2, 2005	Community Assessment: Marlene DoRego, Parole Officer
April 19, 2006	Millhaven Specialized Sexual Offender Assessment: Jennifer Sparks and Dr. Geris Serran
May 11, 2006	Criminal Profile Report: Joanne Rutley and Sylvain Riel, Parole Officers
May 16, 2006	Assessment for Decision: Joanne Rutley, Parole Officer
May 14, 2007	Assessment for Decision, Offender Security Level: Jodi Holmberg, Parole Officer
October 11, 2007	Detention Pre-Screening Recommendation: Lynn Bradford, Parole Officer
November 26, 2007	RTC SOP Pre-Treatment Assessment: Anita Cumbleton, Dr. Jan Looman
January 14, 2008	Assessment for Decision: Lynn Bradford, Parole Officer
April 9, 2008	RTC Sex Offender Treatment Prog. Interim Treatment Progress Report: Anita Cumbleton, Dr. Jan Looman
April 14, 2008	RTC Interim Social Skills Report: Emily Hammond, Dr. Jan Looman
April 25, 2008	RTC Sex Offender Treatment Prog. Final Treatment Report: Anita Cumbleton, Dr. Jan Looman
May 12, 2008	Assessment for Decision: Lynn Bradford, Parole Officer
July 21, 2008	National Parole Board Detention Decision
March 30, 2009	Correctional Plan Progress Report: J. Tassielli, Parole Officer
June 11, 2009	Program Performance Report Final, Sex Offender Moderate Program: Dr. Geris Serran
August 13, 2009	National Parole Board Detention Decision
May 25, 2013	Charged with sexual assault, choking, and utter threats for incident involving K.M.
June 6, 2013	Plead guilty to drive while impaired and refuse breath sample
June 20, 2013	Plead guilty to fail to comply with recognizance
November 28, 2013	Plead guilty to drive while impaired (offence date: August 1, 2012)
May 26, 2014	Convicted of sexual assault, choking, and utter threats. Charges stemming from events of May 25, 2013.
December 5, 2014	Psychiatric Report: Dr. Philip Klassen

COURT FILE NO.:0449-2013

DATE: 20150706

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MICHAEL FAROUK

Defendant

REASONS FOR SENTENCE

J. Wilson J.

Released: July 6, 2015