DATE: 20150831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARCEL LAWSON
Debra Moskovitz, for the Crown
Ingrid Grant, for Mr. Lawson
HEARD: September 25, 2013; May 25, 26, 27, June 24, July 17, 2015
REASONS FOR JUDGMENT
trotter j.
1. INTRODUCTION
[1] Marcel Lawson entered guilty pleas to one count each of sexual assault (Criminal Code, s. 271) and sexual touching (s. 151). The Crown applies to have Mr. Lawson declared a dangerous offender (“DO”) and sentenced to an indeterminate period of incarceration, pursuant to s. 753 of the Code. Mr. Lawson resists the application, arguing that he should receive a determinate sentence, followed by a long-term supervision order (“LTSO”) under s. 753.1.
[2] For the following reasons, I find that Mr. Lawson should be designated a long-term offender (“LTO”), sentenced to an additional two (2) years’ imprisonment in the penitentiary (in addition to the time he has already served), followed by a 10-year LTSO.
2. THE PREDICATE OFFENCES AND THEIR IMPACT
[3] After Mr. Lawson was arraigned on the two charges noted above, he acknowledged the following facts to be true:
The victim T.S. and the accused Marcel Lawson, (alias Marc Desjarlais) met in the summer of 2006 when the victim was 11 years old and the accused was 24 years old. The victim and the accused met at a public swimming pool at Christie Pitts, in Toronto, where the victim would spend much of his free time during the summer.
The accused initiated contact by approaching and befriending the victim at the swimming pool. After this initial meeting at the pool, the accused would see the victim at the swimming pool and also chat online with him.
Approximately one month after meeting, the victim and the accused were at the pool at Christie Pitts. The accused asked the victim to come with him to a nearby alleyway. Once in the alley way the accused touched the victim’s penis by placing his hand in the pocket of the victim’s pants. The accused then gave the victim $20.00 and left the area.
Approximately three days after the above incident the accused and the victim once again met at the pool. The victim and the accused went to the victim’s home while his parents were at work. The victim and the accused went to the basement of the house where the accused performed oral sex on the victim. The accused also asked the victim to touch the accused’s penis. The accused gave the victim $100.00 and left.
On one other occasion the victim and the accused once again went to the victim’s home and went to the basement. The accused performed oral sex on the victim. A friend of the victim came to the victim’s house. The friend knocked on the door, which startled the accused. The accused left out the basement door. The accused took the victim to the food court at the Dufferin Mall.
The accused attempted to maintain contact with the victim through the Internet but it eventually stopped.
In 2012 the accused attempted to friend the victim on Facebook. The victim recognized the accused and contacted the police.
Based on Mr. Lawson’s admission, findings of guilt were made and convictions registered.
[4] The Victim Impact Statement of T.S. was filed as part of these proceedings. In This statement, T.S. explained the pain he has experienced since these serious offences were committed on him. He expressed deep regret and shame and spoke of the “7 years of misery, neglect, emotional breakdowns and self-inflicted physical abuse.”
3. MR. LAWSON’S PREVIOUS OFFENDING
[5] Mr. Lawson has a serious criminal record. The offences and dispositions are set out below. As already noted, the predicate offences were committed in 2006:
LOCATION AND COURT DATE
OFFENCE/INFRACTION
DISPOSITION/DECISION
Saskatoon, Sask.
March 6, 1998
(YOUTH COURT)
Sexual Interference
2 years’ probation
Regina, Sask.
June 15, 2005
Theft under
Fraud under
Fail to Attend Court
15 days, plus 10 and 5 days concurrent – total sentence 15 days
Richmond, B.C.
July 30, 2007
Sexual Assault
Attempt to Obstruct Justice
Fraud Under
Credit for 5 months pretrial custody plus 10 months on Count 1, 9 months on Count 2, 6 months on Count 3, followed by 18 months’ probation
Toronto, Ontario
January 21, 2008
Invitation to Sexual Touching
Fail to Attend Court
14 days plus 5 days concurrent – total sentence 14 days, followed by 3 years, probation
Toronto, Ontario
March 25, 2008
Fail to Comply Undertaking
Suspended Sentence, 1 year probation concurrent
Edmonton, Alberta
July 3, 2008
Unauthorized Use of Credit Care Data
Suspended Sentence plus 15 months’ probation
Stoney Plain, Alberta
August 26, 2008
Obstruct Peace Officer
Fail to Comply Probation x3
12 months on Count 1, 3 months on Count 2 concurrent, 3 months on Counts 3 and 4, concurrent – total sentence 15 months jail
Richmond, B.C.
June 11, 2009
Possession of Crime Obtained by Crime
1 year Conditional Sentence
Richmond, B.C.
June 27, 2009
Conditional Sentence Breach
Remainder of Sentence Served in Jail effective October 6, 2009
Abbotsford, B.C.
October 6, 2009
Attempt Fraud
4 months jail
Toronto, Ontario
April 26, 2011
Assault Resist Arrest
Threaten Bodily Harm
Fail to Comply Probation
90 days jail, followed by 3 years’ probation
Toronto, Ontario
November 24, 2011
Fail to Comply Christopher’s Law
$300 fine and 1 year probation
Toronto, Ontario
February 27, 2012
Invitation to Sexual Touching
Credit 201 days pretrial custody plus 3 years’ probation
[6] There is little information available about the 1998 Youth Court finding of guilt for sexual interference. As a young person, Mr. Lawson inappropriately touched the 7-year-old daughter of a family friend. As an adult, Mr. Lawson committed one sexual offence against a child prior to the predicate offences and two subsequent offences, as set out below:
• The January 2008 conviction for invitation to sexual touching involved an incident that occurred in 2005, before the predicate offences. Mr. Lawson approached an 11-year-old boy who was skateboarding in a parking lot. Mr. Lawson also had a skateboard and said he was willing to give it away and asked the victim what he was prepared to do to get it. He asked the victim if he could “touch him.” The victim refused. Mr. Lawson then said, “I bet I can make you squirt.” He also asked the victim if he had “hair down there.”
• With respect to the July 2007 conviction for sexual assault, Mr. Lawson (24 years old at the time) met a 13-year-old boy (who said he was 14) over the Internet. They eventually met in person and stayed at a hotel for a couple of days. Mr. Lawson defrauded the hotel in the process. Mr. Lawson and victim engaged in numerous acts of masturbation and oral sex. These offences occurred after the predicate offences.
• The February 27, 2012 entry involved an incident that occurred the previous summer. Mr. Lawson approached two 14-year-old boys in a park and asked if they had drugs. They gave Mr. Lawson a phone number of a potential source and he left. Shortly afterwards, he approached the boys again at a swimming pool. He obtained the contact information of one of the boys and texted him the next day and asked: “Do you mind if I sucked your dick?” The victim did not respond. Mr. Lawson sent similar messages that day.
4. MR. LAWSON’S BACKGROUND AND CIRCUMSTANCES
(a) General[^1]
[7] Mr. Lawson is 33 years old. He was born in Saskatchewan. He was removed from the care of his birth mother at a very young age,[^2] due to the abuse of alcohol and violence within the home. Mr. Lawson was eventually adopted into a loving and stable home at age 5.
[8] As a child, Mr. Lawson was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), which was treated with Ritalin. However, his behaviour at school deteriorated, resulting in numerous suspensions. Because of angry and aggressive outbursts towards his adoptive parents, he was removed from their home and placed in several foster and group homes between the ages of 15-22, visiting his adoptive parents on weekends.
[9] Mr. Lawson also experienced scholastic challenges. Mr. Lawson’s self-reports about his performance are contradictory. However, while he experienced numerous failures in school, it would appear that Mr. Lawson eventually graduated from Grade 12 when he was 21.
[10] Mr. Lawson is currently single. He has had two significant relationships. Mr. Lawson has three children, although his self-reports to various people have been inconsistent. He had weekly contact with an ex-partner (Brandy) and their 10-year-old daughter. Mr. Lawson wishes to become part of their lives again. However, Brandy has other children and a new romantic partner. She has concerns about Mr. Lawson after learning the true nature of his current offences.
[11] Mr. Lawson has held numerous jobs. He most often works in food preparation. He moves from job-to-job, largely because of poor attendance, lack of ability or incarceration. Mr. Lawson would like to further his education and open his own restaurant.
(b) PSYCHIATRIC AND PSYCHOLOGICAL EVIDENCE
i. Fetal Alcohol Spectrum Disorder Report
[12] Because of Mr. Lawson’s reports that his mother consumed alcohol while she was pregnant with him, Mr. Lawson was assessed for Fetal Alcohol Spectrum Disorder (FASD) by a multi-disciplinary team,[^3] under the auspices of Anishnawbe Health Toronto. The Report notes that Mr. Lawson has no major health issues other than diabetes, which is treated with insulin.
[13] Mr. Lawson was assessed for FASD as a 10-year-old. While there was suspicion that he had FASD, it was not conclusively established. The current Report identified cognitive dysfunction. On the Weschler Adult Intelligence Scale-III (WAIS-III), Mr. Lawson fell within the 23rd percentile. The entire workup revealed borderline to moderate impairments in certain areas, and average functioning in others. Mr. Lawson scored in the superior range in three-dimensional spatial problem solving, as well as in visual learning.
[14] The Report concluded that Mr. Lawson does not meet the formal criteria for FASD, “due to his lack of fulfillment of the technical criteria. However, the team recognized that his mother drank during her pregnancy with Mr. Lawson.” The Report identified the “most probable contribution of his recognized cognitive deficits being that of long term alcohol/substance abuse.” This was qualified with “fetal alcohol exposure cannot be ruled out as a contributing factor in light of reported attentional and learning difficulties in formative years.”
ii. Dr. Stephanie Penney
[15] Dr. Penney prepared a psychological report on Mr. Lawson. She administered many tests. Consistent with the FASD assessment, Mr. Lawson scored in the 23rd percentile on the WAIS-III.Dr. Penney also used a number of risk prediction instruments. The results are set out below:
• Personality Assessment Inventory (PAI). This comprehensive self-report measures adult personality and psychopathology. Mr. Lawson responded candidly to test items. His responses endorsed a history of substance use. Moreover, “[h]is responses suggest that he is motivated for treatment and recognizes the need for help in dealing with his problems.”
• Psychopathy Checklist-Revised (PCL-R). Overall, Mr. Lawson scored 26/40, placing him in the 67th percentile. However, on a measure of irresponsible and antisocial behaviour, he scored in the 92nd percentile.
• Violence Risk Appraisal Guide (VRAG). Mr. Lawson’s scored in the 98th percentile, placing him a “high risk category.” Of those in the same category, 82% responded violently within 10 years.
• Sex Offender Risk Appraisal Guide (SORAG). Mr. Lawson scored in the 99% percentile, placing him in the “high risk category.” As Dr. Penney noted: “Among individuals … in the same category, 100% violently reoffended within 10 years of opportunity.”
• STATIC-99 R. Mr. Lawson’s score fell above the 99th percentile. Among those in the same “high risk category”, 60% of individuals reoffended within 5 years of opportunity and 68% reoffended within 10 years. Dr. Penney observed: “The recidivism rate for sex offenders with the same score as Mr. Lawson would be expected to be approximately 7.3 times higher than the recidivism rate of the typical sexual offender.”
[16] Based on these scores, and other information available to her, Dr. Penney provided an opinion on Mr. Lawson’s future risk of re-offending. As noted below, Mr. Lawson has a hebephilic preference (i.e., a sexual preference for pubescent children). Dr. Penny was of the view that Mr. Lawson’s hebephilic orientation must be targeted to effectively manage and reduce his risk. Dr. Penney found Mr. Lawson has “a lack of understanding and appreciation of the severity of his past behaviors, and the deviancy of his sexual interests.” Indicative of this was his reference to his sexual offending as a “phase” he was going through. Dr. Penney also identified Mr. Lawson’s impulsivity and substance abuse as significant risk factors. She noted that Mr. Lawson has abused alcohol and other substances in the past. Mr. Lawson explained to Dr. Penney that he was under the influence of alcohol when he committed the sexual assault in 2007 and said that he did not think the offences would have occurred had he not been abusing substances. He reported to Dr. Penney that he did not believe that marijuana was a drug.
[17] Dr. Penney expressed concern about Mr. Lawson’s responsiveness to treatment. She noted that his past efforts have been “poor.” In 2009, he left a residential treatment program. The following year, he was scheduled for an intake interview for a sexual offender treatment group, but failed to attend. As Dr. Penney said: “…Mr. Lawson has simply not had the opportunity to demonstrate whether he would benefit from interventions geared towards his sexual offending and substance abuse.” She noted that Mr. Lawson “has the intellectual capacities to meaningfully participate and benefit from treatment, although he will likely require added supports to ensure his retention of therapeutic concepts over time, and their application to daily life.”
[18] Dr. Penney identified other factors in Mr. Lawson’s favour. She noted his current abstention from street drugs (while in custody), his stated willingness to engage in sex offender treatment, as well as the absence of a history of non-sexual violence or a major mental illness.
[19] Overall, Dr. Penney concluded that Mr. Lawson is at “high risk” for committing future sexual offences, largely because of his deviant sexual interests, which are chronic and untreated. Dr. Penney recommended that, should Mr. Lawson be released into the community, individualized treatment programming, paired with high-intensity case management, be deployed to manage his risk. Among other measures, this would involve a focus on substance abuse and restricting his exposure to places frequented by young males.
iii. Dr. Treena Wilkie
[20] Dr. Wilkie, an experienced forensic psychiatrist, prepared a 66-page psychiatric report and testified during these proceedings.
[21] Mr. Lawson described himself to Dr. Wilkie as bisexual, with a preference for partners between 18 and 30 years. He described his sexual misconduct as a “phase” he was going through. Mr. Lawson expressed a desire to comply and follow through with treatment, commenting that, “I have to stop running from my problems.” During his interviews with Dr. Wilkie, Mr. Lawson also detailed his exposure to alcohol and drugs, the latter of which was quite extensive. He expressed a desire to take treatment for substance abuse. He told Dr. Wilkie he would stop associating with drug-using peers as part of a relapse prevention plan. However, Mr. Lawson said that he did not consider marijuana to be a drug and would likely continue to use it.
[22] Mr. Lawson consented to phallometric testing. A Report from the Kurt Freund Laboratory concluded that his results were “indicative of hebephilia (an erotic preference for pubescent children).” However, there was no indication of “a preference for coercive sexual interaction.” Mr. Lawson said he would be prepared to take sex-drive reducing medication.
[23] Dr. Wilkie concluded that Mr. Lawson does not suffer from a major mental illness. However, she concluded:
He appears to meet diagnostic criteria for Conduct Disorder (childhood onset), Antisocial Personality Disorder, and Polysubstance Dependence, in remission in a controlled environment. He evidences a paraphilia, that being hebephilia. The file information suggests that he evidenced symptoms of Attention Deficit Hyperactivity Disorder during childhood and early adolescence.
[24] Dr. Wilkie listed Mr. Lawson’s “Criminogenic Variables” as: Antisocial Personality Disorder (ASPD), sexual deviance, substance abuse, lack of insight and minimization of his actions, failure on conditional release, impulsivity and lack of participation in structured, educational or vocational activities. Dr. Wilkie did not support a finding of FASD.
[25] Dr. Wilkie administered the same tests as Dr. Penney. Mr. Lawson achieved almost identical scores on most tests. Dr. Wilkie concluded: “Overall, I would view Mr. Lawson as being at high risk for general and violent (including sexual) recidivism from a purely clinical perspective, as well as from an actuarial perspective.” Due to his ASPD and elevated PCL-R score, “his prognosis with regard to potential response to treatment would be considered poor.”
[26] As Dr. Wilkie observed, Mr. Lawson exhibits “manipulation and duplicity” in the context of personal information and professional supports. Dr. Wilkie expressed concern about “discrepant information” provided by Mr. Lawson throughout the assessment process. This, along with his diagnoses, makes Mr. Lawson more resistant to treatment. Dr. Wilkie also stated that his stated motivation to access treatment is not a reliable indicator of success, especially given his previous responses to intervention and his intention to continue his use of marijuana.
[27] In her report, Dr. Wilkie was guarded on the efficacy of managing Mr. Lawson in the community. She wrote that, if he was eventually released into the community, he should be subject extensive supervision. In particular, Mr. Lawson should participate in sex offender treatment programming “in perpetuity” and should be considered for sex-drive reducing medication. She also recommended that substance abuse should be approached in the same way.
[28] Dr. Wilkie elaborated on some of these themes in her testimony. Her ultimate conclusions were not altered by a subsequent report prepared by Dr. Derek Pallandi (discussed below). She emphasized that, because of the discrepant information provided by Mr. Lawson (some of which is identified above), it reflects poorly on Mr. Lawson’s self-reporting as a whole.
[29] In assessing risk, Dr. Wilkie focused on the static factors associated with Mr. Lawson (i.e., those factors that cannot be changed). Mr. Lawson’s preference for pubescent males is an enduring trait. While his inappropriate conduct might change over time, this preference would not. Dr. Wilkie noted that Mr. Lawson’s test scores are focused on static factors and suggest a high risk of re-offending, particularly on the VRAG. Importantly, Dr. Wilkie testified that, while dynamic variables might signal points for intervention, his risk category would not change. She said that it is “high all round.” This is, in part, due to the fact that his psychopathic traits make him less likely to respond to treatment.
[30] Dr. Wilkie elaborated on her skepticism for Mr. Lawson’s motivation for treatment. She explained that a patient’s stated refusal to engage in treatment would be a very negative indicator. A positive indication towards treatment is not so clear.
[31] In terms of the critical issue on this application, Dr. Wilkie testified that, with incarceration and proper treatment in all areas, “there is a reasonable possibility that a treatment plan could be developed for his future management in the community.” Dr. Wilkie insisted that treatment would need to be commenced before Mr. Lawson is released into the community (including dialectical behaviour therapy (“DBT”) and sex offender treatment). However, she cautioned that there is no way of telling how long it will take before Mr. Lawson is responsive.
[32] An important part of Mr. Lawson’s potential for success in the community is sex-drive reducing medication. Dr. Wilkie noted that this would not alter his preference. Dr. Wilkie was not overly concerned with potential side-effects. However, she stressed that medication would only be part of the risk management plan.
[33] Dr. Wilkie expressed concerns about Mr. Lawson’s responsiveness to alcohol treatment. She insisted that this is something that should be addressed before he is released. Moreover, release into the community should slow and gradual, based on compliance with conditions.
[34] Dr. Wilkie said she was uncertain whether Mr. Lawson would follow with the model she suggested. She said, “I am not optimistic.” However, she added, “If he follows through, there is a reasonable possibility of management in the community. It is really up to Mr. Lawson himself.”
[35] In cross-examination, Dr. Wilkie recommended that Mr. Lawson participate in sex offender treatment before being released. She agreed that it was available in the community, at places such as CAMH. However, she insisted that it is more intensive when administered during incarceration. Dr. Wilkie agreed that sex-drive reducing medication could also be administered at CAMH. She agreed that other programming could proceed without medication, but it would be “highly problematic” if Mr. Lawson did not follow through with this part of the plan.
iv. Dr. Derek Pallandi
[36] Dr. Pallandi is a consultant psychiatrist at the Ontario Correctional Institute (OCI). He has provided over 60 opinions on DO applications. Dr. Pallandi wrote a report in support of a LTSO. Dr. Pallandi said that a substantial plan is needed to manage Mr. Lawson’s risk.
[37] Dr. Pallandi described Mr. Lawson’s sexual offending in the following way:
The salient features of his sexual offending are that they universally involved engagement with minors, principally males. Mr. Lawson has employed the use of chat sites to engage victims and further, he has engaged victims while attending places reasonably expected to have those under aged, present.
There appears to be a singular absence of coercive, violent or sadistic activity reflected or alleged in relation to any of his sexual offences.
[38] In terms of diagnoses, based on all of the circumstances, Dr. Pallandi supported the following diagnoses: hebephilia, substance use disorder and ASPD. Dr. Pallandi acknowledged Dr. Wilkie’s opinion that a formal FASD diagnosis unwarranted. However, he wrote that “it is at least reasonably possible that alcohol exposure has influenced his development and continues to compromise his impulse control and decision making abilities.”
[39] Dr. Pallandi agreed with the risk assessment of Dr. Wilkie. He administered the same instruments with similar results. Noting favourable factors (such as Mr. Lawson’s ability to obtain employment for periods of time, his acceptance of responsibility and his willingness to address the numerous issues that he faces), Dr. Pallandi wrote the following:
I would agree that the composite assessment of risk would compel a conclusion that Mr. Lawson remains in the high range, absent sustained and comprehensive intervention and risk management in a fashion to be described below.
[40] In order to manage this risk in the community, Dr. Pallandi recommended the following measures:
• Sex-offender treatment programming at a facility such as OCI;
• Upon release, maintenance sex offender treatment programming over the long-term;
• The administration of sex-drive reducing medication;
• Substance abuse programming;
• Psychotherapy, including DBT; and
• Structured monitoring of numerous aspects of his life, such as housing, exposure to underage individuals and all of his relationships (romantic and otherwise).
Reflecting on this plan, Dr. Pallandi wrote:
In conclusion, it is my opinion that with all of these strategies in place in a coherent fashion, that Mr. Lawson’s risk, and the eventual control of his behaviour, can be achieved in a fashion that would not expose any member of the public to undue risk.
Given Mr. Lawson’s underlying sexual deviancy and the expectation that it will persist, it would be reasonable to have Mr. Lawson subject to the longest legally possible community supervision upon his integration into the community.
[41] Dr. Pallandi testified that he is willing to prescribe sex-drive reducing medication for Mr. Lawson at OCI, where other inmates are taking the drug. He would also be involved in treatment for substance abuse. Dr. Pallandi testified that, while DBT is an important part of the treatment plan for Mr. Lawson, it is not imperative that it starts while Mr. Lawson is in custody.
[42] In cross-examination, Dr. Pallandi agreed that Mr. Lawson is a high risk to re-offend and, without treatment, he is not manageable in the community. If he were to follow the plan outlined above, Mr. Lawson would be manageable in the community, but Dr. Pallandi acknowledged that “it is all up to him” to follow through. Like Dr. Wilkie, Dr. Pallandi testified that Mr. Lawson’s ASPD presents treatment challenges, especially his manipulative nature. Dr. Pallandi pointed out that the dire legal situation Mr. Lawson faces is a strong motivating factor in that he has never been at jeopardy of indeterminate detention. Moreover, Mr. Lawson has never had a plan of this scope or magnitude put in place before. But as Dr. Pallandi emphasized, it is not a curative model, but a management model, which needs to be very intense, especially at the beginning.
(c) The Gladue Report
[43] A Gladue Report was prepared by Aboriginal Legal Services of Toronto. Mr. Lawson is Aboriginal, a “Non-Status Indian” under the Indian Act, R.S.C. 1985, c. I-5. Typical of many adopted Aboriginal children, because he lacks information concerning his biological parents, he is unable to register for Indian Status.
[44] Mr. Lawson reported that he was apprehended when he was born and that he went from foster home to foster home until he was adopted at age 5. The Report detailed the troubling Canadian history of apprehending Aboriginal children and placing them in non-Aboriginal homes and agencies. According to the research relied upon in the Report, this type of cross-cultural placement has robbed many Aboriginal children of their cultural identities. Mr. Lawson expressed his insecurities about the physical dissimilarities between himself and his parents. As he told the author of the Report, “I felt weird. I was growing up with white people. I felt out of place. I felt I didn't belong. I felt that should have been somewhere else.”
[45] Mr. Lawson was sexually assaulted by a teacher when he was at the age 9 or 10. He did not disclose the abuse at the time. This was around the time that his behavioural problems at home and school started. Not long after, he became so uncontrollable and unsafe at home that he was removed from the care of his adoptive parents. Mr. Lawson was sexually assaulted by a fellow foster child, which resulted in a prosecution a number of years later.
[46] Mr. Lawson suffered a major trauma when his father died in 2001. After this time, his drug use escalated. He received some treatment for these addictions. He eventually came to Toronto, where he supported himself by being an escort.
[47] Since being in custody, Mr. Lawson has participated in Aboriginal programming, such as smudging. He reported that he wants to understand sexual offender issues, past abuse and grief. He admitted to having sexual urges towards younger males. He said that he has no problem engaging in sexual activity with males who are 14. He said, “I try to stay in that area.”
[48] The author of the Report recommended that, if Mr. Lawson receives a Provincial jail sentence, he should go to the St. Lawrence Valley Correctional and Treatment Centre for programming for sexual offenders. If he receives a Federal sentence, it is suggested that he participate in Aboriginal programming.
(d) Other Information
[49] The Crown adduced evidence concerning Mr. Lawson’s compliance with previous court dispositions. Mr. Lawson’s criminal record reflects a lack of ability to comply with court orders. There are nine prior convictions for failing to abide by court orders. As the Crown noted in its Written Submissions, Mr. Lawson has breached every probation order he has been subject to.
[50] Documentary records were filed in relation to Mr. Lawson’s behaviour while incarcerated at institutions in British Columbia, Alberta, Saskatchewan and Ontario. Mr. Lawson has accumulated numerous infractions, but mainly for being uncooperative or verbally abusive with staff. There is one notation of Mr. Lawson kicking a court officer as well as a threat of assault.
[51] Dianna Fedun, Mr. Lawson’s former probation officer, testified on the application. She supervised him on probation orders made on April 26, 2011 and February 27, 2012. Generally, Mr. Lawson’s performance was poor. His reporting was sporadic, being generally late or postponed. Ms. Fedun also had difficulty monitoring Mr. Lawson’s employment situation because he did not provide appropriate documentation. In a similar vein, Ms. Fedun had difficulty verifying Mr. Lawson’s address. This resulted in the November 24, 2011 conviction for failing to comply with the SOIRA. In fairness to Mr. Lawson, his living situation was precarious at times. Moreover, Mr. Lawson had very few supports in the community.
[52] One of Mr. Lawson’s probation orders required him to seek counseling for sexual deviance. He signed intake forms, but he never attended. Mr. Lawson expressed concern about undergoing phallometric testing at the time. However, he eventually agreed to attend CAMH. It was somewhat unclear, but there may not have been space available for him at the time.
[53] Ms. Fedun was unable to say whether Mr. Lawson would succeed under her supervision if released on probation again. She agreed there are resources available to him in the community, such CAMH. However, without speaking to Mr. Lawson, she was uncertain about “what he would bring to the table.” Ms. Fedun views Mr. Lawson as being at high risk to re-offend.
5. CORRECTIONAL INFORMATION: REFORMATORY OR PENITENTIARY?
[54] A dominant theme at the hearing was whether Mr. Lawson’s needs would be better met in a Provincial or Federal institution. Counsel for Mr. Lawson submitted that incarceration in the provincial system, at OCI, would be effective. The Crown submitted that only Correctional Service Canada (CSC) has the necessary resources to address Mr. Lawson’s needs.
(a) Provincial
[55] Evidence was adduced concerning OCI. Ann McManamen, the Social Work Manager, testified about the operations of the institution, especially the sex offender program. OCI also offers substance abuse treatment. Both programs involve group work in a relatively open setting.
[56] There is limited space for sex offender programming. Some inmates are waitlisted before coming to OCI for this purpose. Consequently, when a judge sentences an offender to a reformatory sentence with a view to the type of programming available at OCI, there is no guarantee that that person will be admitted. The offender must make an application. Indeed, once a Provincial sentence has been imposed, there is nothing that a sentencing judge can do to compel an inmate to apply. Moreover, if an inmate is accepted into OCI but then becomes violent, he can be sent to the Algoma Treatment Centre, which does not involve open concept. She testified that someone who enters the program but does not put in the work would not stay at OCI. However, Ms. McNanamen testified that these sorts of transfers do not occur very often.
[57] In cross-examination, Ms. McNanamen agreed that offenders with chronic institutional misconduct histories are generally not recommended for OCI. However, she said that they look at more recent conduct and, “We do err on the side of taking risks.”
[58] Provincial institutions have no involvement with LTSO’s. While they develop discharge plans for offenders, the PBC administers LTSO’s.
(b) Federal
[59] Meaghan Jones, a Parole Officer employed by CSC, provided an extensive affidavit and testified about what the Federal system has to offer to sex offenders. Ms. Jones works with adult offenders and is involved in the administration of LTSO’s.
[60] Ms. Jones explained the assessment process in the Federal system and the organizational structure of CSC. She described the significant resources dedicated to sex offenders. There are different streams, based on the risk posed by offenders. There is a community program for those who do not complete programming while incarcerated. Ms. Jones testified that someone in Mr. Lawson’s situation would be placed in a sex offender program. There are also programs for alcohol and substance abuse. Ms. Jones testified that Mr. Lawson would have access to an Aboriginal Liaison Officer. Her affidavit also described the Aboriginal Integrated Correctional Program Model, as “a stream of correctional programming designed to meet the unique needs of Aboriginal offenders.” This is a “culturally-based multi-targeted program that addresses multiple criminal behaviours and includes both traditional Aboriginal healing approaches and current evidence-based best correctional practices.”[^4]
[61] In terms of motivation, Ms. Jones testified that, if an inmate fails to complete programming, the CSC might recommend certain parole conditions, to be enforced with the threat of suspension for non-compliance. She agreed, however, that there is little that can be done with an inmate who simply refuses to participate.
[62] Ms. Jones explained how LTSO’s are administered by the Parole Board of Canada (PBC). She testified that 45-65% of LTO’s are kept in custody beyond their statutory release dates. As she noted, it is easier for a LTO to get parole than an eligible DO.
[63] When a Federal prisoner serves a determinate sentence, programming starts within the first couple of months. Priority is based on proximity to release. Given that those sentenced to indeterminate sentences are not parole-eligible for 7 years, they may not be given priority.
[64] Ms. Jones testified that, if a LTO is given a short Federal sentence, it is much more difficult for CSC to ensure completion of programing and the formulation of a release plan. Inmates released onto LTSO’s from Provincial institutions provide challenges for CSC. It is better if a LTO serves a Federal sentence in terms of managing the offender in the community.
[65] Ms. Jones also discussed various residential alternatives for Federal parolees and LTO’s. She described facilities in Toronto and Kingston that accommodate sex offenders. Under a LTSO, residence conditions may be imposed for periods of up to 180 days. Moreover, sex offender and substance abuse treatment therapy is available in the community. The CSC is able to access resources in the community, including those offered by CAMH. The CSC is able to carry out urinalysis on parolees and LTO’s.
6. THE POSITIONS OF THE PARTIES
[66] For the Crown, Ms. Moskovitz argues that the evidence supports DO findings under ss. 753(1)(a)(i) and (ii) and (b) of Criminal Code, which provide:
- (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,
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[67] Ms. Moskovitz acknowledges that, if I make these findings under s. 753, I may refuse to make a DO designation and impose a LTSO instead under s. 753.1, which provide:
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
Ms. Moskovitz submits that, while paragraphs (1)(a) and (b) are satisfied, there is no reasonable possibility of eventual control in the community of the risk posed by Mr. Lawson (1)(c)).
[68] On behalf of Mr. Lawson, Ms. Grant makes the following concessions:
• Mr. Lawson has been convicted of a serious personal injury offence (i.e., sexual assault);
• Mr. Lawson constitutes a threat to the mental well-being of others and this threat establishes a pattern of behaviour demonstrating a likelihood of inflicting severe psychological damage on other persons (s. 753(a)(i));
• Mr. Lawson’s conduct in sexual matters shows a failure to control his sexual impulses and a likelihood of causing psychological pain or other evil to other persons (s. 753(b));
• A sentence of imprisonment of two years or more is warranted (s. 753.1(1)(a)); and
• There is a substantial risk that Mr. Lawson will re-offend (s. 753.1(b)).
[69] Ms. Grant agrees that the evidence establishes the pre-conditions for both DO and LTO findings. However, she argues that I should not impose an indeterminate sentence because there is a “reasonable possibility of eventual control” of Mr. Lawson’s risk in the community.
7. ANALYSIS
(a) Findings
[70] The concessions made on behalf of Mr. Lawson concerning the application of ss. 753(a)(i) and (b) are reasonable and supported by the evidence. I have no hesitation in accepting them and making these findings beyond a reasonable doubt. I would add the following. Mr. Lawson’s concession under s. 753(a)(i) is limited to a threat to the psychological well-being of others. I would go further and find that, given the nature of his offending and the age of his victims, he also presents a threat to the physical well-being of others.
[71] Mr. Lawson disputes the applicability of s. 753(a)(ii) to his circumstances. Little, if anything, turns on whether I make this finding. My ultimate conclusions would be the same. Nevertheless, it has been demonstrated that Mr. Lawson’s behaviour between 2005 and 2007, the period in which most of his sexual offences were committed, can properly be characterized as persistent and aggressive. Mr. Lawson engages in deception and manipulation, rather than physical coercion. In the context of sexual offences involving children, it is aggressive conduct.
(b) The Options
[72] There are three realistic sentencing options available to me in this case. In addition to the ancillary orders (discussed below), I could impose the following sentences:
An indeterminate sentence;
A penitentiary sentence, followed by a LTSO; or
A reformatory sentence, followed by a LTSO.
Neither counsel submitted that it would be appropriate to sentence Mr. Lawson to a determinate term without also imposing a LTSO.
(c) The General Approach to the Dangerous and Long-Term Offender Provisions
[73] The purpose of Part XXIV of the Criminal Code is the protection of the public. However, as the Supreme Court of Canada held in R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.), at p. 113, in applying these provisions as a whole, a sentencing judge must also take into account ss. 718.2(d) and (e) “and consider the possibility that a less restrictive sanction would attain the same sentencing objectives that a more restrictive sanction seeks to attain.” Similarly, the Court said at p. 118:
If a sentencing judge is satisfied that the sentencing options available under the long-term offender provisions are sufficient to reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level, the sentencing judge cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if all of the statutory criteria have been satisfied.
See also R. v. L.M. (2008), 2008 SCC 31, 231 C.C.C. (3d) 310 (S.C.C.) and R. v. F.E.D. (2007), 2007 ONCA 246, 222 C.C.C. (3d) 373 (Ont. C.A.), at p. 384.
(d) Gladue Considerations
[74] Section 718.2(e) provides a remedial framework to address the problem of Aboriginal over-representation in Canadian jails: see R. v. Gladue (1999), 1999 CanLII 679 (SCC), 133 C.C.C. (3d) 385 (S.C.C.) and R. v. Ipeelee (2010), 2012 SCC 13, 280 C.C.C. (3d) 265 (S.C.C.). This core principle is applicable in the DO/LTO context.
[75] In R. v. W.E.J.M., 2009 ONCA 844, the Court dismissed a Crown appeal from the trial judge’s decision to impose a LTSO. The Court agreed with the manner in which the she dealt with the accused’s Aboriginal status and FASD. As Feldman J.A. said at para. 45:
The sentencing judge observed that although s. 718.2(e) of the Code did not apply because a sentence of imprisonment was being imposed, the respondent's aboriginal status should be considered in all sentencing proceedings. In this case, the respondent's mother was aboriginal, he had come to identify as an aboriginal, and he suffered from FASD. Although the evidence was not in the record before the sentencing judge, the factum filed by the Intervener on this appeal, the Aboriginal Legal Services of Toronto, documents that there is a high incidence of FASD in the incarcerated aboriginal population.
[76] In R. v. Badger, 2012 SKCA 119, the Court allowed the accused’s appeal from the imposition of an indeterminate sentence. In a discussion about least-restrictive alternatives, the Court made the following observations about Aboriginal offenders (at para. 64):
Nor should it be forgotten, when applying s. 753.1(1)(c), that the sentence reserved for long-term offenders, as opposed to that reserved for dangerous offenders, is the lesser of the two. The significance of this lies in the fact the law mandates the imposition of the least restrictive sanction that may be appropriate in the circumstances. And it does so with the accompanying instruction to pay particular attention to the circumstances of aboriginal offenders lest they be incarcerated more frequently than other offenders, or for longer periods, by reason of a failure to fully appreciate and give effect, where appropriate, to the peculiar circumstances of aboriginal offenders … [emphasis added]
See also R. v. Moise (2015), 2015 SKCA 39, 322 C.C.C. (3d) 400 (Sask. C.A.) and R. v. Acoby, 2015 ONCA 75.
[77] Mr. Lawson’s background was thoroughly addressed in the Gladue Report. As Ms. Grant emphasized in her written submissions:
His life has been marked by many of the social problems that disproportionately afflict aboriginal people in Canada, the dark legacy of colonialism, racism and cultural genocide. These included:
• Possible exposure to alcohol in utero;
• Removal of Lawson from his birth mother by the state as a result of his mother’s alcohol abuse and possibly other problems;
• Adoption into a non-aboriginal family at the age of five…;
• Multiple instances of sexual abuse while in state care;
• Poverty and homelessness, leading to an itinerant lifestyle; and
• Drug abuse and addiction, leading to prostitution and crime to support the habit.
These factors resonate strongly in this case and significantly impact on my decision.
(e) Treating and Managing the Risk: Realistic or Merely Hopeful?
[78] Section 753.1(1)(c) of the Code, reproduced above, mandates an inquiry into the “reasonable possibility of eventual control of the risk in the community.” When this section was first enacted (S.C. 1997, c.17, s. 4), it applied to applications for a LTSO, as well as situations when a DO application failed. In 2008 (S.C. 2008, c. 6, s. 42), s. 753 was amended to address the latter situation somewhat differently. Section 753(4.1) now provides as follows:
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [emphasis added]
[79] A “reasonable expectation” (s. 753(4.1)) is a more exacting standard than a “reasonable possibility of eventual control” (s. 753.1(1)(c)): see R. v. M.L., 2015 ONCA 487, at para. 23 and R. v. Osborne (2014), 2014 MBCA 73, 314 C.C.C. (3d) 57 (Man. C.A.), at p. 80. However, given that the index offences in this case were committed in 2006, prior to the most recent amendments, the Crown fairly takes the position that Mr. Lawson is entitled to the benefit of lesser punishment, protected by s. 11(i) of the Charter: see Moise, at p. 403 and R. v. Bunn, 2014 SKCA 112, at pars. 28 to 28. Accordingly, both the Crown and the defence proceeded on the basis that the “reasonable possibility of eventual control” standard is applicable.
[80] The application of this standard is difficult to apply in this case. On the one hand, all actuarial and clinical indicators suggest that Mr. Lawson is at high risk to re-offend against pubescent males. However, Dr. Wilkie and Dr. Pallandi testified that there is a reasonable possibility of eventual control of this risk in the community, achievable through a network of treatment and management measures (including sex-drive reducing medication, sex offender treatment, substance abuse counseling and supervision in the community). They differed on how likely it is that this risk will be reduced to an acceptable level. The success of these proposed interventions hinges on Mr. Lawson’s motivation and his ability to follow through with the plan. Mr. Lawson has stated a desire to change and to commit to this process. But this is complicated by his impulsivity and his manipulative nature, both features of his ASPD.
[81] Under s. 753.1 of the Criminal Code, the evidence does not need to establish that an accused person’s risk “will be” controlled in the community; the section requires a “reasonable possibility” that this will occur: see R. v. D.V.B. (2010), 2010 ONCA 291, 254 C.C.C. (3d) 221 (Ont. C.A.), per Moldaver J.A. (as he then was), at p. 237. Similarly, in R. v. Little (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20 (Ont. C.A.), after reviewing the trial judge’s reasons in light of Johnson, Cronk J.A. said at p. 34:
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.
[82] In approaching the ultimate question of whether Mr. Lawson’s risk can eventually be controlled in the community, it is important to appreciate that the LTSO regime is a strict one, one that is administered by the PBC and enforced through the criminal sanction and the Corrections and Conditional Release Act, R.S.C. 1985, c. C-20 (“CCRA”). Section 753.3(1) of the Criminal Code provides for an indictable offence for breaching a LTSO, with a maximum sentence of 10 years’ imprisonment. The failure to abide by any condition in an LTSO, including one requiring treatment, may result in suspension and apprehension pursuant to s. 135.1 of the CCRA. As Hill J. said in R. v. Payne (2001), 2001 CanLII 28422 (ON SC), 41 C.R. (5th) 156 (Ont. Sup. Ct.) at p. 194: “The entire object of the long-term offender regime would be undermined by providing the offender with the ability to defeat risk management.” See also Deacon v. Canada (Attorney General), 2006 FCA 265, [2007] 2 F.C.R. 607 (C.A.), R. v. Badger, supra, at paras. 60-63, R. v. Lemaigre (2004), 2004 SKCA 125, 189 C.C.C. (3d) 492 (Sask. C.A.), at p. 504 and R. v. V.M., [2003] O.J. No. 436 (Sup. Ct.), at paras. 120 to 136. However, while treatment conditions, including the requirement that the offender take sex-drive reducing medication, may be included in LTSO’s, medication cannot be forced on an offender. As Feldman J.A. held in R. v. Ramgadoo (2012), 2012 ONCA 921, 293 C.C.C. (3d) 157 (Ont. C.A.) at pp. 171-172:
In R. v. R.B., 2011 ONCA 328, at para. 12, this court acknowledged that a Parole Board has the power to make taking medication a condition of a long-term supervision order, but on the understanding that such an order does not mean that the person would or could be physically forced to take medication. Rather, if the person does not consent to take the medication when required to do so under the terms of the order, that could then amount to a breach of the condition under s. 753.3(1) unless the person "had a reasonable excuse for refusing to take the prescribed medication" (at para. 13).
[83] I am mindful of the fact that the proposed plan involves certain contingencies, the principle one being Mr. Lawson’s motivation to follow through by taking the medication and engaging in other aspects of the treatment plan: see R. v. J.S.M. (2003), 2003 BCCA 66, 173 C.C.C. (3d) 75 (B.C.C.A.), at pp. 83-90 and R. v. Poutsoungas (1984), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.), at pp. 391-392. This factor is always present in this type of case. Mr. Lawson is a suitable candidate for anti-androgen medication. In his present circumstances, he is prepared to take it. Notwithstanding these contingencies, I am satisfied that, with a meaningful period of incarceration designed to initiate this plan, there is a reasonable possibility that his risk can eventually be controlled in the community. This conclusion is based on the following factors:
(1) The predicate offences were committed in 2006. As evidenced from Mr. Lawson’s criminal record, most of his sexual offending occurred within the 2-year period from 2005 to 2007, roughly 10 years ago. The most recent offence of a sexual nature occurred in 2011. While all of these offences are very serious, they do not reflect any escalation in his behaviour;
(2) While Mr. Lawson’s hebephilic preference is immutable, it is amenable to control and management through a combination of treatment measures. He has agreed to take sex-drive reducing medication. Should he fail to follow through, he may be subject to a breach charge, as discussed above;
(3) Intensive sex offender treatment is available both in custody (Provincial and Federal) and also in the community;
(4) Mr. Lawson has expressed his desire to Dr. Wilkie, Dr. Pallandi and the author of the Gladue Report to engage in treatment. This motivating factor is important and encouraging. Still, it is a factor that must be approached with caution. It is true that Mr. Lawson’s past efforts have been disappointing, but his present legal predicament is markedly different. He also wishes to access treatment for his substance abuse and for issues involving grief;
(5) It is true that Mr. Lawson’s ASPD makes aspects of his treatment and management more challenging. Moreover, Mr. Lawson has certain cognitive limitations, perhaps due to exposure to alcohol while in utero or from his long-standing substance abuse. However, his cognitive challenges are not such that they would be barriers to treatment. In a similar vein, Mr. Lawson does not suffer from a major mental illness;
(6) Evidence of Mr. Lawson’s insight cuts in both directions. On the one hand, he has always entered pleas of guilty and has admitted his offending. On the other hand, he minimizes the seriousness of his actions. As an example, he has described his past sexual offending as a “phase.” Still, throughout this process, there was a durable self-recognition that his conduct is wrong and that others were harmed as a result of his actions;
(7) Substance abuse is key to treatment and management plan. Mr. Lawson has benefited from substance abuse treatment in the past. Of concern are Mr. Lawson’s statements that he will continue to use marijuana in the future. This immature attitude may be addressed with parole and LTSO conditions and swift sanctions for failing to comply;
(8) Mr. Lawson has never had an opportunity to benefit from sex-offender treatment in the past. This factor that must be approached with caution. It is not a reason in and of itself to prefer an LTSO to an indeterminate sentence: see R. v. Simon, 2008 ONCA 578, [2008] O.J. No. 3072 (C.A.), at para. 93. However, Mr. Lawson stands in a better position than someone who has received treatment and who has failed. As already noted, his ASPD presents certain challenges. However, other factors point to his amenability to treatment at this point in his life, especially in light of his present legal jeopardy;
(9) I am concerned that Mr. Lawson has few supports in the community. This is somewhat problematic in terms of overall risk management. However, his current social situation is largely a reflection of the disadvantage that he suffered as an Aboriginal child taken from his natural mother. This is the type of situation that Gladue and Ipeelee attempt to remediate. To assign undue weight to Mr. Lawson’s lack of community supports would be unfair in these circumstances. On the other hand, Mr. Lawson is motivated to work. The desire to be self-sufficient is an important, positive factor; and
(10) Given his lack of support in the community, more CSC resources may be necessary to properly supervise him in the community. However, this would not pose an unrealistic burden. On the treatment side, sex offender programing, the administration of sex-drive reducing medication and substance abuse counseling does not constitute an extraordinary program. Indeed, it is hoped that some of these treatment-side measures will be made available to Mr. Lawson while he is serving the custodial part of his sentence. I acknowledge that, in order to limit Mr. Lawson’s contact with undesirable associates, and to restrict his exposure to pubescent males, he may require more intense supervision than some other LTO’s. There was no evidence that this cannot be achieved in a reasonable fashion or that this expectation overlooks “real world resourcing” and thereby places the public at risk (see Little, at p. 43). Moreover, this approach is not so oppressive that it seeks to replicate the conditions of confinement outside of a jail (see R. v. Trevor (2010), 2010 BCCA 331, 257 C.C.C. (3d) 72 (B.C.C.A.), at p. 87).
[84] Having considered all of these circumstances, and paying particular regard to the powers available to CSC and the PBC to craft the conditions of (and then enforce) an LTSO, Mr. Lawson’s risk can be reduced to an acceptable level in the community. It is encouraging that Mr. Lawson is currently motivated to make changes and engage in the plan that has been developed for him. Should this motivation wane, Mr. Lawson will essentially be coerced into all aspects of the plan, under threat of sanctions under the CCRA and the Criminal Code. This is particularly important as it relates to the sex-drive reducing medication, other sexual offender treatment programming and substance abuse counseling – all of which I respectfully, but strongly, recommend be included as terms of his LTSO.
(f) An Appropriate Determinate Sentence
[85] Given that I have concluded that Mr. Lawson should not receive an indeterminate sentence, I must determine the appropriate determinate sentence. The principles of proportionality, as well as the operation of s. 718.2(d) and (e), are also important at this juncture.
[86] On behalf of the Crown, Ms. Moskovitz submitted that, should I fail to impose an indeterminate sentence, I should impose a sentence of in the range of 5 to 6 years’ imprisonment. On behalf of Mr. Lawson, Ms. Grant submits that the range of sentence for the index offences is 3 to 5 years’ imprisonment. She submits that a sentence at the higher end of the range is appropriate in this case because both experts agreed that Mr. Lawson’s risk to re-offend would be better controlled if he receives sex offender treatment while in custody. She submits that, in addition to the approximately 3 years of PSC that Mr. Lawson has served, the additional period of incarceration should be “approximately 18 months and certainly not longer than two years.”
[87] I pause for a moment to consider the issue of PSC. Neither counsel made extensive submissions on how this period of time, just over 37 months, should be credited. Mr. Lawson did not apply for bail. This is not surprising. Given his record for non-compliance, as well as his convictions for related offending, release on bail was highly unlikely. These same factors will no doubt delay his bid for release on parole. Applying a ratio approximating 1:1, I credit Mr. Lawson with 36 months of PSC.
[88] On all of the evidence, a sentence approaching 2 years’ in length is necessary to address programming while Mr. Lawson is custody, improving the chances of a smooth and safe release into the community. Ideally, a somewhat longer sentence would provide the CSC with more time to address Mr. Lawson’s needs while he is incarcerated. However, having regard to the principle of proportionality and the Gladue considerations discussed above, I will not impose further imprisonment exceeding 2 years.
[89] The critical issue is whether Mr. Lawson should receive a reformatory or a penitentiary sentence. The choice is driven by considerations of proportionality on one hand, and the protection of the public on the other. In terms of Mr. Lawson’s needs, both types of institutions have their merits. Sex offender treatment is available in a reformatory and a penitentiary.
[90] Mr. Lawson pins his hopes on being admitted to OCI, ideally under the supervision of Dr. Pallandi. However, this plan is attended by practical difficulties. There is no guarantee that Mr. Lawson will be admitted to OCI or that he will ultimately consent to all aspects of the treatment, although the evidence strongly suggests that he will.
[91] There are also no guarantees that Mr. Lawson will receive sex offender treatment if sentenced to a penitentiary term. However, the resources are available and the evidence suggests that he should be prioritized for this type of programming as he moves closer to eligibility for release. The Gladue Report, as well as the evidence of Ms. Jones from CSC, pointed to resources for Aboriginal offenders in the Federal system.
[92] LTSO’s are administered by the PBC. Ms. Jones testified that it is more likely to be a smoother transition from incarceration to an LTSO with a Federal sentence, as opposed a reformatory sentence. She testified that coordination is more difficult when the CSC must deal with prisoners serving sentences in provincial institutions. Ms. Grant submitted that Mr. Lawson should not be disadvantaged because of this organizational issue. However, s. 753.1 of the Code is triggered by sentences of 2 years or more and LTSO’s are geared more towards those serving lengthier (i.e., penitentiary) sentences. Lastly, during the assessment process, Mr. Lawson has contemplated a return to Saskatchewan, where he was born and raised. While there was no evidence adduced on this point, a Federal sentence would present more options for Mr. Lawson’s placement and release into the community.
[93] In conclusion, I impose a sentence of two years’ imprisonment. This will allow the Federal authorities to coherently address Mr. Lawson’s treatment and management issues, commencing when the sentence is imposed, and continuing through until conditional release, and then the ultimate administration of the LTSO.
(f) Ancillary Orders
[94] In addition to the custodial portion of the sentence, I make the following orders:
• Pursuant to s. 760 of the Criminal Code, all psychiatric and psychological reports prepared for this application will be forwarded to CSC;
• A DNA order;
• A SOIRA order for life;
• An order under s. 161 of the Criminal Code for life; and
• An order under s. 109 of the Criminal Code for life.
8. Conclusion
[95] I sentence Mr. Lawson to an additional 2 years’ imprisonment, followed by a 10-year LTSO, the terms of which will be set by the PBC. I also make the ancillary orders set out above.
[96] I wish to thank both counsel for their extensive work on this case.
Trotter J.
Released: August 31, 2015
DATE: 20150831
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
MARCEL LAWSON
REASONS FOR JUDGMENT
Trotter J.
Released: August 31, 2015
[^1]: The following information has been culled from the various reports prepared for the purposes of this proceeding.
[^2]: In the Psychological Report prepared by Dr. Stephanie Penney, it was estimated that this occurred when Mr. Lawson was 5 years old. In a Report prepared by Dr. Wilkie, it was noted that he was apprehended at birth and adopted at the age of five. In the Gladue Report (discussed in (c), below), it was reported that this occurred at birth.
[^3]: This team was comprised of Dr. Chandrakant P. Shaw, M.D., F.R.C.P.(C.), O. Ont., Staff Physician Anishnawbe Health Toronto, Dr. Douglas Salmon, Jr., C. Psych, Consultant in Rehabilitation and Neurospsychology, Andrei Kozlowski, C. Psych. And Mr. James Carpenter, Traditional Healer, Anishnawbe Health Toronto.
[^4]: The affidavit references the following information on the CSC website: http://www.csc-scc.gc.ca/correctional-process/002001-2011-eng.shtml.