CITATION: R. v. Carrie, 2016 ONSC 3721

COURT FILE NO.: 7248/11

DATE: 06-29-2016

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Crystal Tomusiak/Guy Roy, Counsel for the Crown

Applicant

• and -

DAVID DANIEL CARRIE

C. Anik Morrow, Counsel for the Respondent

Respondent

HEARD: September 8-11, 14-17, 21-25, December 1-3, 2015, January 14, February 2-3, and March 29-31, 2016

JUSTICE E. GAREAU

REASONS ON DANGEROUS OFFENDER APPLICATION

Introduction

[1] On March 29, 2012 the offender, David Daniel Carrie, was found guilty by a jury of the following offences:

(a) Sexual assault, contrary to section 271 of the Criminal Code of Canada;

(b) Assault with a weapon, a stick, contrary to section 267(a) of the Criminal Code of Canada; and

(c) Assault causing bodily harm, contrary to section 267(b) of the Criminal Code of Canada.

[2] Following Mr. Carrie’s conviction for the aforementioned offences, the Crown obtained the required consent to proceed with a dangerous offender application. The dangerous offender hearing commenced on September 8, 2015, and was heard on various days throughout the fall of 2015 and the winter of 2016, with the hearing concluding on March 31, 2016. Decision was put over to June 29, 2016.

[3] At the hearing of the dangerous offender application both the Crown and the defence called evidence. The Crown called as its witness, Dr. Philip Klassen, who is a forensic psychiatrist and who prepared a psychiatric assessment of Mr. Carrie. The defence called numerous witnesses, including family members and individuals who have been involved with Mr. Carrie and his treatment while he has been incarcerated. The defence obtained its own assessment of Mr. Carrie, which was prepared by Dr. David Nussbaum, who is a psychologist. After all the evidence was heard, the Crown altered its position and was not seeking an indeterminate sentence with respect to Mr. Carrie. The Crown submits that Mr. Carrie should be declared a dangerous offender and sentenced to a period of incarceration in the range of 10 to 12 years (less pre-sentence custody on a 1:1 basis) followed by a long-term supervision order for a period of 10 years.

[4] The position of the defence is that the evidence adduced at the hearing does not support a finding that Mr. Carrie be declared a dangerous offender or a long-term offender. The defence submits that the court cannot conclude, on the evidence, that there is a substantial risk that the offender will re-offend or that there is a reasonable possibility that Mr. Carrie’s risk cannot be controlled in the community. The defence argues that Mr. Carrie should be sentenced on the offences for which he has been convicted, pursuant to section 753.1(6) of the Criminal Code of Canada. It is the position of the defence that a sentence in the range of five to six years on the substantive charge of sexual assault is the appropriate range considering all the factors in this case. Given the lengthy period of pre-sentence custody that Mr. Carrie has served, the defence suggests that Mr. Carrie’s net sentence after pre-custody credit be a period of less than two years enabling the sentence to be served in an Ontario correctional institution and allowing Mr. Carrie to be placed on a probation order for three years following his release with terms tailored to his particular situation designed to maximize his chance of success and minimize the likelihood that he will re-offend.

Legal Principles and Tests to be Applied

[5] Section 753 of the Criminal Code of Canada sets out the parameters for a dangerous offender application. The relevant portions of that section reads as follows:

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

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

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

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

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

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

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

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

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

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

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

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

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

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

[6] If the court does not find the offender to be a dangerous offender, the court may treat the application as a long-term offender application, pursuant to section 753.1(1) of the Criminal Code of Canada. Section 753.1(1) of the Criminal Code reads as follows:

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.

[7] Subsection 753.1(2) states that the court shall be satisfied that there is a substantial risk that the offender will re-offend if the offender has been convicted of a number of offences set out in that section (which include section 271 - sexual assault); and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, 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) by conduct in any sexual manner including that involved in the commission of the offence for which the offender has been convicted, and has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

[8] Subsection (3) of section 753.1 of the Criminal Code of Canada provides that if the court finds an offender to be a long-term offender, it shall

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

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

[9] Paragraph 753.1(6) of the Criminal Code of Canada provides that “if the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted”.

[10] There is no dispute that the predicate offence underpinning the application, sexual assault, constitutes a serious personal injury offence.

[11] In the application before the court, the Crown is relying on the provision of section 753.(1)(a)(i) of the Criminal Code of Canada to establish that Mr. Carrie is a dangerous offender, namely, that Mr. Carrie constitutes a threat to the life, safety or physical or mental well-being of other persons as a result of a pattern of repetitive behaviour by Mr. Carrie showing a failure to restrain his 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 behaviour.

[12] The Crown is not relying on the provisions of section 753.(1)(ii) or (iii) or section 753.(1)(b) of the Criminal Code of Canada.

[13] The Crown bears the onus of proof in a dangerous offender application or a long-term offender application. The Crown must prove all the requisite factors, including the aggravating factors as set out in the aforementioned provisions of the Criminal Code of Canada beyond a reasonable doubt.

[14] The critical component under section 753.(1)(a) of the Criminal Code of Canada is a requirement of proof of a future likelihood of reoffending. As noted by Pierce J. in R. v. J.W., 2016 ONSC 408, [2016] O.J. No. 383, at paragraph 7,

The current wording of s. 753.(1) in the Criminal Code has, as the Court of Appeal pointed out in R. v. Szostak (2014), 2014 ONCA 15, 118 O.R. (3d) 401, par 36, removed the discretion of the trial judge to declare a person a dangerous offender, if he or she fits the definition. Instead, it requires the court to make a dangerous offender finding if satisfied that the Crown has proved there is a “likelihood” of the offender causing future harm. The current wording of a “likelihood” of future harm is more than a probability but it does not reach the level of certainty or even probability of future harm: R. v. Langevin, 1984 CanLII 1914 (ON CA), [1984] O.J. No. 3159 (Ont. C.A.) par. 31.

[15] It is important for the court to keep in mind that a dangerous offender application is a sentencing hearing. As with any other sentencing hearing, hearsay evidence is admissible. In the case at bar, expert evidence and expert reports have been tendered by both the Crown and the defence. It is open to the court to accept or reject any expert evidence, in whole or in part, and to determine how much weight to afford an expert report. R. v. Klassen, 1974 CanLII 1690 (BC SC), [1974] 4 W.W.R. 561.

Above all, the court must keep in mind that the principles of sentencing apply to a dangerous offender application. The decision of the court is a sentencing decision – the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R. v. Ipeelee, [2012] 1 S.C.R. 553 at paras. 51, 55 and 73.

The Background of the Offender and a Summary of his Criminal History

[16] David Daniel Carrie was born on April 1, 1966. That makes him 50 years of age presently and 44 years of age when he committed the predicate offence, sexual assault, on December 13, 2010.

[17] Despite his relatively young age, the offender has an extensive criminal record. Entered as Exhibit 37 was the certificate of conviction prepared by the Royal Canadian Mounted Police for David Daniel Carrie. Mr. Carrie’s criminal record can be accurately described as extensive.

[18] Mr. Carrie was first convicted on April 7, 1983 for theft over $200. He received a suspended sentence and two years probation. Mr. Carrie would have just turned 17 years of age at the time of his first conviction. Mr. Carrie’s criminal record spans from 1983 to 2010, a period of 27 years. As indicated in the criminal record, Mr. Carrie has spent his adult life engaged in criminal, anti-social activity. There are very little gaps of any significant length in his criminal record.

[19] As indicated in Exhibit 37, Mr. Carrie’s criminal record is summarized as follows:

Date and Place of Disposition

Charge

Disposition

1983-04-27 Sault Ste Marie, ON

Theft over $200 Section 294(a) Criminal Code

Suspended sentence & probation 2 years

1983-04-27 Sault Ste Marie, ON

(1) Attempt theft (2) Theft over $200 Section 294(a) Criminal Code

(1-2) Suspended sentence & probation 2 years on each charge concurrent

1983-11-10 Sault Ste Marie, ON

Possession of narcotic Section 3(1) Narcotic Control Act

1 day

1983-12-22 Sault Ste Marie, ON

Fail to comply with condition of recognizance Section 133(3) Criminal Code

$300 in default 60 days

1984-01-13 Sault Ste Marie, ON

(1) Theft under $200 Section 294(b) Criminal Code (2 charges) (2) Fail to appear Section 133(2) Criminal Code (3) Theft over $200 Section 294(a) Criminal Code (4) Mischief Section 387(1)(a) Criminal Code (5) Fail to comply with condition of recognizance Section 133(3) Criminal Code (2 charges)

(1-2) 2 months on each charge consecutive (3-4) 1 month on each charge consecutive & consecutive (5) 2 months on each charge consecutive & consecutive

1984-05-23 Sault Ste Marie, ON

Theft over $200 Section 294(a) Criminal Code

45 days consecutive to sentence serving

1985-03-22 Sault Ste Marie, ON

(1) Break & enter with intent Section 306(1)(a) Criminal Code (2) Possession of stolen property Section 312(1)(a) Criminal Code (3) Dangerous driving Section 233(4) Criminal Code

(1) 6 months (2) 5 months consecutive (3) 1 month consecutive

1985-08-06

Paroled

1986-11-21 Sault Ste Marie, ON

Possession of property obtained by crime Section 312(1)(a) Criminal Code

6 months

1987-01-23

Paroled

1991-10-08 Brampton, ON

Sexual assault Section 271 Criminal Code

2 years

1991-12-17 Sault Ste Marie, ON

(1) Mischief under $1000 Section 430(4) Criminal Code (2) Fail to attend court Section 133(2)(b) Criminal Code

(1) 15 days consecutive to sentence serving (2) 30 days consecutive

1992-02-10 Sault Ste Marie, ON

Assault Section 245 Criminal Code

3 months consecutive to sentence serving

1994-09-19 Sault Ste Marie, ON

Fail to comply with recognizance Section 145(3) Criminal Code

$100 in default 5 days

1995-01-30 Thessalon, ON

(1) Dangerous operation of motor vehicle Section 249(1)(a) Criminal Code (2) Mischief under $1000 Section 430(4) Criminal Code (3) Fail to comply with recognizance Section 145(3) Criminal Code

(1) 120 days & prohibited driving 1 year (2-3) 120 days on each charge concurrent & concurrent

1995-06-27 Sault Ste Marie, ON

Fail to comply with recognizance Section 145(3) Criminal Code

30 days

1996-01-30 Sault Ste Marie, ON

Fail to comply with recognizance Section 145(3) Criminal Code

45 days

1996-03-20 Sault Ste Marie, ON

(1) Resist arrest Section 129(a) Criminal Code (2) Fail to comply with recognizance Section 145(3) Criminal Code

(1-2) 4 months one each charge consecutive

1996-12-11 Sault Ste Marie, ON

Fail to attend court Section 145(2)(b) Criminal Code (2 charges)

45 days on each charge consecutive

1996-12-18 Sault Ste Marie, ON

(1) Break, enter & commit Section 348(1)(b) Criminal Code ( 2 charges) (2) Driving while disqualified Section 259(4) Criminal Code (3) Mischief over $5000 Section 430(3) Criminal Code (4) Fail to comply with recognizance Section 145(3) Criminal Code (4 charges) (5) Fail to attend court Section 145(2)(b) Criminal Code (6) Fail to appear Section 145(5) Criminal Code (2 charges) (7) Theft over $5000 Section 334(a) Criminal Code

(1) 8 months on each charge consecutive & consecutive to sentence serving (2-6) 6 months on each charge concurrent & concurrent (7) 3 months consecutive

1997-09-25 Guelph, ON

Assault Section 266 Criminal Code

3 months consecutive with sentence serving

1998-11-20 Guelph, ON

(1) Attempt break & enter with intent (2) Theft under $5000 Section 334(b) Criminal Code

(1) 6 months & (45 days pre-sentence custody) (2) 2 months concurrent

2000-02-25 Sault Ste. Marie, ON

(1) Assault Section 266 Criminal Code (2) Theft under $5000 Section 334(b) Criminal Code

(1-2) 90 days intermittent on each charge concurrent

2000-12-08 Sault Ste. Marie, ON

(1) Break, enter & commit Section 348(1) Criminal Code (2 charges)

(1-2) 3 months on each charge consecutive & probation 12 months on each charge concurrent

2001-07-20 Sault Ste. Marie, ON

(1) Sexual assault Section 271(1) Criminal Code

(2) Forcible confinement Section 279(2) Criminal Code (3) Unlawfully causing bodily harm Section 269 Criminal Code (4) Uttering threats Section 264.1(1) (a) Criminal Code

(1) 36 months (2) 15 months consecutive (3) 9 months conseuctive (4) 12 months concurrent

2006-11-21 Sault Ste. Marie, ON

Breach of recognizance Section 811 Criminal Code (5 charges)

10 months on each charge concurrent & (82 days pre-sentence custody)

2008-11-21 Sault Ste. Marie, ON

(1) Breach of recognizance Section 811 Criminal Code (2) Breach of recognizance Section 811 Criminal Code (3) Fail to comply with undertaking Section 145(3) Criminal Code (2 charges)

(1) 2 months & (80 days pre-sentence custody) (2) 2 months concurrent (3) 2 months on each charge concurrent & consecutive

2009-09-23 Sault Ste. Marie, ON

Theft under $5000 Section 334(b) Criminal Code

Suspended sentence & probation 3 years

2009-02-24 Sault Ste. Marie, ON

Possession of a Schedule I substance Section 491) Controlled Drugs & Substances Act

15 days consecutive to sentence serving

2009-10-20 Sault Ste. Marie, ON

Fail to comply with probation order Section 733.1(1) Criminal Code

Time served (1 day)

2010-06-17 Sault Ste. Marie, ON

(1) Fail to comply with undertaking Section 145(3) Criminal Code (2) Fail to comply with undertaking Section 145(3) Criminal Code

(1) 45 days & (20 days pre-sentence custody) (2) 25 days consecutive

[20] Not noted in the aforementioned summary of the criminal record is the offences for which he was found guilty by a jury on March 29, 2012, namely, sexual assault, contrary to Section 271 of the Criminal Code of Canada, assault with a weapon, contrary to section 267(1) of the Criminal Code of Canada, and assault causing bodily harm, contrary to section 267(b) of the Criminal Code of Canada.

[21] Included in the criminal record of Mr. Carrie are the convictions for sexual assault that occurred prior to the predicate offence of sexual assault on December 10, 2010. On October 8, 1991, he was convicted of sexual assault in Brampton, Ontario and received a sentence of two years incarceration. On July 20, 2001, he was convicted of sexual assault in Sault Ste. Marie, Ontario and received a sentence of three years incarceration. In addition to the sentence for sexual assault, Mr. Carrie received a 15-month consecutive sentence for forcible confinement, a 9-month consecutive sentence for causing bodily harm and a 12-month concurrent sentence for uttering threats, resulting in a total sentence of 60 months or 5 years incarceration.

[22] Filed as Exhibit 18, Tab 5 is a transcript of the proceedings with respect to the first sexual assault, the registration of a conviction taking place on October 8, 1991 in Brampton, Ontario. The transcript with respect to the facts and the sentence imposed with respect to that sexual assault reads as follows:

FACTS

MR. MARTIN: Your Honour, I thank you. These are the allegations facing the accused on today’s date.

On Friday, June 14^th, 1991, at approximately 3:30 a.m., the victim of this occurrence, a 19 year old female, was at home sleeping by herself at 8554 Mississauga Road in Brampton.

The accused was known to her as they had both grown up, they were both from the same town in northwestern Ontario.

At this time, approximately 3:30 a.m., the accused before the court entered the house through an unlocked door and proceeded to the victim’s bedroom.

The accused woke her and crawled into bed beside her. He started hugging her and stated that he wanted to “fuck you babe”. The complainant told the accused that she did not want anything to do with him.

The victim was wearing a tank top and shorts and tried to persuade the accused out of her bed and offered him a cigarette. The accused pushed the victim down on the bed and during the struggle she managed to break free and run from the bedroom.

Once outside the bedroom in the hallway of her residence, she came upon a large Doberman Pinscher dog which had been brought to the house by the accused.

The victim became frightened of the dog and did not want to go past the dog and she was apprehended from behind by the accused and carried back to her bed where he removed her clothing and forced her to have intercourse with him.

The accused then forced the complainant – This particular act of intercourse was not carried to completion. The accused then forced the complainant to masturbate. During the assault he performed oral sex upon her. The accused then had intercourse with the complainant, entered the complainant for a second time against her will. The accused eventually stopped the assault, called a taxi and left the residence on the arrival of the cab. The accused took his dog with him.

The victim reported the incident to the police the following day and the accused was arrested on the 14^th of June.

The accused, Your Honour, was held for a bail hearing. He was detained. He has been in custody on these charges for 4 months up until today’s date, 3 months, 3 weeks. These are the allegations facing the accused.

THE COURT: Are the facts correct?

MR. PARTINGTON: Substantially correct, Your Honour.

THE COURT: Very well, finding of guilt to count 1. As to count 2?

MR. MARTIN: Your Honour, I wish to withdraw count 2 on the instructions of Leslie Baldwin, the Crown whose case this is.

THE COURT: Okay.

MR. MARTIN: Your Honour, the accused has a criminal record for dishonesty. There is no sexual assaults but I wish to put that criminal record before Your Honour.

MR. PARTINGTON: The record is admitted, Your Honour.

THE COURT: Thank you.

MR. MARTIN: All of his convictions come from Sault Ste. Marie. April, 1983, theft over $200. Again, in April of ’83, attempt theft and theft over $200. Probation was the disposition for both of these. November, 1983, possession of a narcotic, one day. December ’83, fail to comply with condition of recognizance, a fine. January, 1984, theft under $200 and fail to appear, theft over $200, mischief, 2 counts of fail to comply. A total of 5 months in custody on that. May, 1984, theft over $200, 45 days consecutive to that. March, 1985, break and enter with intent, possession of stolen property, dangerous driving. That totalled up to 12 months in custody. November, 1986, possession of property obtained by crime, 6 months in custody. He was paroled in January of 1987. There are no indications, save and except this activity, since that time.

...SUBMISSION BY MR. PARTINGTON

...SUBMISSIONS BY MR. MARTIN

REASONS FOR SENTENCE

LANGDON, J. (ORALLY);

Stand up please, sir. This was a particularly odious offence occurring as it did within the confines of the complainant’s own residence.

All I can say is that you are getting the maximum benefit of, first of all, a plea of guilty without a trial, sparing the state the expense of the trial, sparing the victim the second ordeal of giving evidence and the gap in your record. I can tell you that if you had been found guilty after trial on these facts, the sentence would be closer, in my view, to five years.

Two years penitentiary is imposed.

[23] Filed as Exhibit 18, Tab 18 is a transcript of both the reasons for judgment and the reasons for sentence of McMillan J. with respect to the 2000 sexual assault which took place in Sault Ste. Marie, Ontario. Mr. Carrie was convicted on June 22, 2001 and was sentenced on July 20, 2001. The transcript of the reasons on sentence contains a salient synopsis of the facts giving rise to the sexual assault conviction and is repeated below:

THE COURT: Before proceeding this morning, there are two collateral matters that I wish to address, and the first is with respect to the court’s obligation under Section 726 of the Criminal Code, and that of course requires myself to ask Mr. Carrie whether he has anything that he wishes to say or convey to the court before proceeding.

MR. CARRIE: No, Your Honour.

THE COURT: Thank you, sir. The second issue is with respect to the request that had been made as part of the submissions by the Crown for Forensic DNA sampling, and at that time there was an indication that there had already been a sample provided and, of course, if that is the case, under Section 487.053, the court would be prohibited from granting that order today, as I read the section and subsection. Ms. Weeks, are you satisfied that there is a sample in existence already?

MS. WEEKS: I have no way of knowing that, Your Honour, so I can’t confirm or deny that, and that’s why the position of the Crown’s office has been to continue to request it. I don't know.

THE COURT: Can you help us, Mr. Willson?

MR. WILLSON: My client tells me that, just one second.

THE COURT: Certainly.

MR. WILLSON: My client says that he recalls having DNA taken in Brampton, seven or eight years ago. Now, that would have predated this section. I don't know what the circumstances were, Your Honour, in the taking of that sample, but, again, that would predate it. It wouldn’t be one that was under this section at all.

MS. WEEKS: I would think that that would have been for a specific case and that is no longer, that isn’t kept and that isn’t part of the DNA Databank. So, that it would appear that no, there hasn’t been a specific DNA Databank order made.

THE COURT: All right. Then the court is content to make such an order, and that will be done in due course.

Having dealt with the two collateral issues, then I wish to turn my attention to the sentencing of Mr. Carrie.

While I am sure counsel are cognizant of the facts, I think it is appropriate to have a brief review before sentencing. Mr. Carrie appears before the court today for the imposition of sentences on the following four offences, in respect of which he has either pleaded guilty or been found guilty following his trial herein;

COUNT NUMBER ONE: Sexual assault, Section 271(1) C.C.C.

COUNT NUMBER THREE: Unlawful confinement, Section 279(2) C.C.C.

COUNT NUMBER FOUR: Assault causing bodily harm, Section 269(a) C.C.C.

COUNT NUMBER SIX: Uttering a threat, Section 264.1(1)(a) C.C.C.

The most salient facts relevant to the sentencing of the accused involve a social evening of considerable alcohol consumption on the part of the complainant teenager and the 35 year old accused on November 26, 2000, and into the early morning hours of November 27, 2000, at the accused’s apartment in this City. The said two individuals were acquaintances and there was no evidence led to suggest that there had been any previous altercation in their relatively recent relationship. Further, there was no behavioral aberration by the accused throughout the evening of conviviality that could be viewed as indicative of any problem and to the contrary, the evidence was that the two were amorous.

The cause of the accused’s disenchantment was not clearly established at this trial. According to the complainant, the accused suddenly became upset with her, then enraged, and then violent. The facts supportive of the commission of the four offences occurred within a short period of time, an hour to two hours at most. During that time, the accused brutally assaulted the complainant by striking her repeatedly as was evidenced from the photographs entered in evidence, as well as from the evidence of Nurse Laramont. The accused himself testified that he did “slap her silly”. It should be recalled the complainant was a female of approximately 110 pounds, and he a male of approximately 250 pounds.

The accused threatened the complainant with death and then bodily harm, and she held an honest belief that she might well not survive the ordeal. She simply was terrified.

During this timeframe, the accused had non-consensual intercourse with the complainant. Thereafter, the complainant attempted to escape from the premises but was caught and subdued on the outdoor deck and forcibly carried naked back into the premises. She was then subjected to further blows and non-consensual intercourse. The sexual assault then took the form of forced fellatio and then a reversion to intercourse again.

Throughout this period of approximately one to two hours, the complainant repeatedly pleaded with the accused to permit her to leave the premises on her assurance that she would not involve the authorities. The accused was fixated on the premise that if he were to release the complainant, he would surely be incarcerated. Once the accused fell asleep, she was able to escape the confinement.

On submissions as to sentence, the Court was informed by the Crown that a Victim Impact Statement was not being tendered.

With respect to Mr. Carrie, we are told that he is a man of some 35 years of age who resides in this City. He has a grade 12 level education and has no particular employment skills. His employment record is sporadic at best. He is alcohol dependent and his substance abuse has been prolonged. He sought treatment approximately 10 years ago but without success.

In 1983, 1984, 1985 and 1986, the accused was convicted of approximately 15 property related offences and breaches of recognizance. He was paroled January 23, 1987. On October 8, 1991, he was convicted of sexual assault and sentenced to two years in a penitentiary. His record contains three individual assault convictions on February 10, 1992, September 25, 1997 and February 25, 2000. The criminal record of the accused, again for the record, was acknowledged and its entry into evidence was consented to by defence counsel. Through the mid to late 1990’s , the accused incurred approximately 15 convictions, again primarily related to property offences and breaches of recognizance, failing to attend court and resisting arrest. The lengthiest sentence, that is, beyond the two years for the sexual assault appeared to have been a total of approximately 21 months on December 18, 1996. He has what appears to be two break and entry convictions in late 2000, and early 2001, as well as a conviction for breach of probation. He was on a recognizance of bail at the time these charges were laid.

The court, of course, must consider what aggravating factors are relevant to this process, as well as the mitigating circumstances.

In dealing first with the mitigating factors, the Court was referred to the provisions of Section 718.1 and 718.2 by defence counsel, and it was submitted that the accused had not contravened any of the legislated deemed aggravating circumstances in subsection (2) of the latter. Other than the disparaging remarks of the accused in his evidence at trial concerning the inappropriate stereotypical characterization of aboriginals and alcohol, the complainant being of aboriginal descent, the submission is accurate.

However, the said subsection is certainly not an exhaustive treatise on aggravating factors. Although the accused had consumed copious amounts of alcohol, and illicit drugs earlier in the day, he, by his own evidence, was aware of what he was doing to the complainant, save perhaps for the few brief spans when he, in his terminology, gapped out. He was sufficiently aware to recognize the consequences of his behaviour once he had embarked upon this course of terror to this vulnerable teenager, namely, the sure prospect of incarceration in the event that she informed the police thereon. Further, and again according to his own evidence, the accused was aware that he was certainly prone to act irrationally following the consumption of alcohol. That is based on his evidence to the effect that he definitely is nuts when he drinks.

The Court questioned why the accused would have been so fixated and concerned about going to jail if he permitted the complainant to leave, and she did, in fact, report matters to the police. On his evidence, he could have only been convicted of assault in respect of the initial singular punch to the face of the complainant. Given his record, another assault conviction ought not to have been a matter that one would think would cause him much concern. However, another sexual assault conviction is something that surely would have caused him much consternation.

The gratuitous ongoing violent beating of the complainant and threats of death and bodily harm caused her to understandable fear for her life. The accused’s horrifying behaviour was compounded by his pursuit and capture of the complainant when she did manage to briefly flee from his constraint.

Then there are the repeated sexual assaults. As to the offence itself, Mr. Justice Sopinka in R. v. Daviault (1995), 1994 CanLII 61 (SCC), 93 C.C.C. (3d) 21 at page 38, characterized that offence as follows, and specifically in relation to intoxicated perpetrators:

Sexual assault is a heinous crime of violence. Those found guilty of committing the offence are rightfully submitted to a significant degree of moral opprobrium. That opprobrium is not misplaced in the case of the intoxicated offender. Such individuals deserve to be stigmatized. Their moral blameworthiness is similar to that of anyone else who commits the offence of sexual assault and the effects of their conduct upon both their victims and society as a whole are the same as in any other case of sexual assault. Furthermore, the sentence for sexual assault is not fixed. To the extent that it bears upon his or her level of moral blameworthiness, an offender’s degree of intoxication at the time of the offence may be considered during sentencing.

In addition to the non-consensual succession of intercourse perpetrated by the accused, there was the further sexual indignity of forced fellatio, imposed on the complainant during that period of the deprivation of her liberty.

Lastly, there is the matter of the attitude of the accused and what would appear to be a complete lack of contrition on his part. Defence counsel did not make any submissions that addressed any degree of remorse on behalf of the accused. While this is not so much an aggravating factor as a factor that could disentitle the accused to any consideration of leniency, it nonetheless is an appropriate consideration in his sentencing.

Those are the aggravating factors that the court observed in its dealing with this matter, and I now wish to turn to the mitigating factors that would operate in favour of the accused in the sentencing process.

What can be said, if anything, in support of the accused that could mitigate against the imposition of a sentence at or approaching the maximum punishment provided by statute?

A consideration of the facts leads the Court to conclude that the criminal conduct of the accused resulting in convictions on the four offences for which he is to be sentenced, was indeed spontaneous and the precipitating assault certainly had a great element of impulsiveness. There is no evidence whatsoever to suggest that the treatment of the complainant on this occasion was in any way premeditated, planned or deliberate. The complainant had, on a recent prior occasion, remained at the accused’s residence over night without any complaint of mistreatment. Accordingly, she had no reason to anticipate what was to evolve.

The criminality of the accused took place over a short period of time, as was previously indicated, perhaps one to two hours maximum. The elapsed time factor is particularly significant in respect to the offence of unlawful confinement and the consideration of comparative sentences. This is not at all to suggest that the brief period over which the complainant was subjected to the accused’s brutality was not horrific for her.

Then there is the matter of the accused’s voluntary intoxication. The passage by Mr. Justice Sopinka quoted earlier addresses the propriety of considering intoxication in the sentencing process. Mr. Justice Cory, in that same case, commented at pages 61 and 62 as follows:

It was argued by the respondent that the “blameworthy” nature of voluntary intoxication is such that it should be determined that there can be no violation of the Charter if the Leary approach is adopted. I cannot accept that contention. Voluntary intoxication is not yet a crime. Further, it is difficult to conclude that such behaviour should always constitute a fault to which criminal sanctions should apply. However, assuming that voluntary intoxication is reprehensible, it does not follow that its consequences in any given situation are either voluntary or predictable. Studies demonstrate that the consumption of alcohol is not the cause of the crime. A person intending to drink cannot be said to be intending to commit a sexual assault.

The propriety of intoxication as a mitigating factor in the sentencing of an accused on sexual assault was considered and applied by Chief Justice Gale in R. v. Shanower (1972), 1972 CanLII 1367 (ON CA), 8 C.C.C. (2d) 527 at page 528, when dealing with an appeal from a suspended sentence for the accused’s rape of the 15 year old virgin babysitter where Gale, C.J.O. stated:

So far as the offence itself is concerned, the only thing that can be said in mitigation is that he had consumed a large quantity of alcohol before he embarked upon the attack on this young girl.

It is evidence that in this case the accused had consumed such a sufficient quantity of alcohol as to cause or contribute to lapses in memory or “gaps” as he described them.

Then there is the matter of the accused’s lengthy record which was referenced as an aggravating factor. While the accused’s lengthy criminal record is per se an aggravating factor, closer scrutiny does reveal particulars to be considered in this process. For example, the offender does have a prior conviction for sexual assault for which he was sentenced to two years in a penitentiary. However, the conviction was in 1991 and a period of almost 10 years has elapsed between that conviction and this one. There was also a substantial gap between the first assault simpliciter conviction in February, 1992 and the subsequent two in September, 1997, and February, 2000. The sentences imposed do not indicate those offences to have been of a serious nature, if indeed such can be said for any assault conviction. Otherwise, the criminal record is essentially comprised of petty property offences and an obvious inability to abide by the terms of recognizances or probation orders.

Lastly, there is the matter of the accused’s guilty pleas, a factor that accrues to his credit. The accused pleaded guilty to counts three, (confinement) and six, (threatening) and not guilty to count four as charged, but guilty to the lesser and included offence of assault causing bodily harm. The Crown rejected that plea but the accused was ultimately convicted of the very offence he had pleaded guilty to. The accused, therefore, pleaded guilty to three of the four offences for which he stands convicted today. He is not to be penalized for his right to make full answer and defence, and the Crown is not to be faulted for its refusal to accept a guilty plea to a lesser offence.

The Sentence

The Court has informed itself with respect to the provisions of Section 718, 718.1 and 718.2 of the Criminal Code of Canada, as well as the principles enunciated by our Court of Appeal in R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270, particularly at page 279 and R. v. C.A.M. (1996), 1996 CanLII 230 (SCC), 1 R.C.S. 500 S.C.C. and particularly at page 531, as they apply to the “Totality Principle”.

The Court is also mindful of the “jump effect” respecting the length of a sentence to be imposed on a repeat offender in circumstances of a markedly more serious offence.

Here, the gravamen of the overall criminal conduct of the accused is both significant and serious. It is most fortunate that no greater harm befell the complainant during the period of her confinement. The Court is persuaded that in all of the instant circumstances, the highest regard must be had for these sentencing principles concerned with the protection of the public and the denunciation of conduct such as that exhibited by the accused. As was stated by Lord Justice Lawson in R. v. Sergeant (1974), 60 C.R. App. R. 74, at page 77:

...society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass.

While those principles of sentencing are directed more to the offences, rehabilitation and reformation mandate a punishment to fit the offender, and the Court has noted several mitigating circumstances. The sentence imposed today ought not to be of a magnitude that would dash all hope for the rehabilitation of Mr. Carrie.

However, the sentence will require the accused to be imprisoned in a federal penitentiary and he is sentenced to the following:

On the lead offence, COUNT ONE, the sexual assault conviction, 36 months.

With respect to COUNT THREE, the unlawful confinement conviction, 15 months consecutive.

With respect to COUNT FOUR, the assault causing bodily harm, nine (9) months consecutive.

And with respect to COUNT SIX, the threatening conviction, 12 months concurrent.

The total sentence, therefore, is 60 months.

Is there anything else, counsel?

MR. WILLSON: No, Your Honour.

THE COURT: Thank you.

[24] With respect to the most recent sexual assault conviction, the predicate offence of sexual assault, which took place on December 13, 2010, Mr. Carrie entered a plea of not guilty on March 19, 2012 and the trial proceeded before me with a jury. The jury returned a verdict of guilty on March 29, 2012. To understand the facts and circumstances surrounding that sexual assault it is helpful to consider my instructions to the jury in my charge pertaining to the theory of the defence, the theory of the Crown and the requisite elements required on the charge of sexual assault, contrary to Section 271 of the Criminal Code of Canada. Those portions of my charge to the jury are repeated below:

THEORY OF THE DEFENCE:

The theory of the defence with respect to count 1, the charge of sexual assault, is equally applicable to counts 2, 3, 4, and 6 of the indictment.

It is the position of the defence that the sexual assault and the assaults alleged by Ms. Gagnon did not happen.

It is the position of the defence that for a variety of reasons, Ms. Gagnon is not a credible witness and her evidence is not dependable or reliable and as such, should be rejected by members of the jury.

The complainant, Ms. Gagnon, is an admitted drug user. She described herself as a “junkie”. She admitted in her evidence that during the period of November and December, 2010 her drug use increased and she was, as she put it “using a lot”.

Ms. Gagnon also indicated that she would regularly consume 3 grams of cocaine and some pills every day during this period of time. Mr. Carrie would abuse drug and alcohol with her and they were daily under the influence of either illegal drugs or alcohol or both. As Ms. Gagnon put it in her evidence, “they never had a sober day together”, referring to her and Mr. Carrie.

During the two-day period surrounding the alleged sexual assault, Ms. Gagnon was awake for two days straight and was using drugs. Ms. Gagnon could not recall the details of all the drugs she consumed on December 13, 2010 prior to going to Halle Smith’s house with Mr. Carrie but she indicated that she had “quite some” drugs and clearly recalls injecting cocaine into her system with a needle, or as she put it, that she “smashed cocaine”.

Ms. Gagnon’s evidence was that she was using drugs regularly and heavily in the three-year period leading up to her relationship with David Carrie, which began in October, 2010.

Ms. Gagnon would clean herself up and then relapse and during many periods her “whole day is fixed on where her next hit is coming from”, as Ms. Gagnon put it.

The theory of the defence is that given this background, Ms. Gagnon’s memory cannot be relied on and the jury should doubt her recollection of events during the months of November and December, 2010.

The defence is also suggesting that the jury consider the actions of Ms. Gagnon after the alleged December 13, 2010 incident. The defence points to the letters that Ms. Gagnon sent to Mr. Carrie at the jail after the alleged sexual assault is said to have taken place. Those letters from Ms. Gagnon to Mr. Carrie were entered into evidence as Exhibits 5, 6 and 7.

The defence suggests that although Ms. Gagnon indicated that Mr. Carrie was “not the type of guy for me to be with”, that the letters suggest otherwise.

In the December 18, 2010 letter, Exhibit 5, Ms. Gagnon indicates to Mr. Carrie, “I have been very, very loyal”, “I love you baby”, and “hold me” and “I miss you”.

In the December 19, 2010 letter, Exhibit 6, Ms. Gagnon writes to Mr. Carrie, “I would not change a thing about you” and states that she was “wishing you were by my side”.

In the December 29, 2010 letter, Exhibit 7, Ms. Gagnon refers to Mr. Carrie as “my handsome husband to be”, and tells him that she will work on getting them their own place, indicating that “2011 will be the beginning of a new life for us.”

Although Ms. Gagnon attempted to distance herself from these letters and stated, “I would like to say that I am ashamed by these letters”, the defence is suggesting that Ms. Gagnon would not have written these letters to Mr. Carrie if she was sexually assaulted by him on December 13, 2011 or physically assaulted by him in the manner in which she indicated in her evidence.

The defence points to other actions of the complainant after she left Halle Smith’s house on December 13, 2010 to indicate that her evidence is not credible.

In cross-examination, Ms. Gagnon admitted that her “recollection of events after Halle’s house is sketchy”. The first person Ms. Gagnon encountered after the alleged sexual assault on December 13, 2010 was Carolyn McKay. In her evidence, Ms. McKay testified that Ms. Gagnon told her that she got beat up by some guy she didn’t know. Ms. Gagnon indicated in her evidence that she said this “because she wasn’t sure what to do”.

Ms. Gagnon told the ambulance attendant, Richard Bennett, that she had been “forcibly sodomized with an object”.

Ms. Gagnon told the emergency room nurse, Erin Smylie, that she was assaulted by a man she met on Hughes Street who was known to her for 3 weeks.

Ms. Gagnon told Beth Desaulnier, the sexual assault nurse examiner, that during the sexual assault, there as an attempt to penetrate her anus, mouth and vagina.

The theory of the defence is that with all these differing explanations as to what occurred, that Ms. Gagnon’s credibility is called into question and the jury should not be accepting her evidence.

This is the theory of the defence – it is up to you as members of the jury to test that theory after considering all of the evidence that you have heard at the trial.

(B) THEORY OF THE CROWN:

The theory of the crown with respect to the charges against Mr. Carrie is that the jury does not have to rely on the evidence of Ms. Gagnon alone. The crown takes the position that there is corroboration of Ms. Gagnon’s evidence – in other words, support for Ms. Gagnon’s evidence, in the witnesses you have heard at the trial.

Carolyn McKay saw injuries to Ms. Gagnon when she first encountered her. Ms. McKay’s evidence was that she saw red marks on Ms. Gagnon’s neck.

Richard Bennett, the ambulance attendant, also saw injuries. He observed injuries to one of Ms. Gagnon’s hands; he observed Ms. Gagnon walking with a limp sue to an injury to her foot; he observed an injury to her nose and a reddened area around Ms. Gagnon’s neck which appeared to him to be fingerprints. In the ambulance, enroute to the hospital, Ms. Gagnon disclosed to Mr. Bennett that she has been “beaten with a bat” and sexually assaulted – “forcibly sodomized with an object”.

The emergency nurse, Erin Smylie, in her evidence detailed the injuries that she observed Ms. Gagnon to have sustained. She noted an injury to Ms. Gagnon’s left thumb and abrasions and bruising around her neck. Ms. Smylie noted an injury to Ms. Gagnon’s right foot. The injury to the hand and foot were significant enough that x-rays were taken although the x-rays did not reveal any fracture to either the thumb or the foot. Ms. Smylie noted that Ms. Gagnon had a hematoma to her left eye and abrasions on her shin. Ms. Smylie found that Ms. Gagnon was oriented as to person, place and time and although she was upset and tearful, Ms. Smylie found Ms. Gagnon to be “alert and oriented” when she dealt with her. As to whether or not Ms. Gagnon was intoxicated when she was at the hospital, Ms. Smylie indicated “if she hadn’t told me she was drinking, I would not have assumed that she had been drinking.”

Beth Desaulnier also spoke to Ms. Gagnon at the Sault Area Hospital. Ms. Desaulnier did so in her capacity as the sexual assault nurse examiner on call on December 13, 2010. Ms. Desaulnier noted injuries to Ms. Gagnon. She indicated that Ms. Gagnon had difficulty standing – to sit in a wheelchair. She also noted that Ms. Gagnon “seemed to be in a lot of pain”. Ms. Gagnon disclosed to Ms. Desaulnier that she had been sexually assaulted and had been physically assaulted with a weapon, which Ms. Gagnon described as “a big stick”. Ms. Desaulnier did not complete the testing in a sexual assault evidence kit that evening because she formed the opinion that Ms. Gagnon could not give informed consent due to her alcohol and cocaine use that day.

The evidence is that after the police became involved, a warrant was obtained to conduct a search of Halle Smith’s apartment at 142 Albert Street, East, Sault Ste. Marie, Ontario. Members of the jury heard evidence from Staff Sergeant Sean Sparling who supervised the search of Mr. Smith’s apartment, which was conducted on December 14, 2010 beginning at 5:43 a.m. This search was done to corroborate Ms. Gagnon’s version of evidence. The photograph book entered as Exhibit 1 was reviewed by Sergeant Sparling in his evidence. One of the photographs taken was at page 42 of the Exhibit 1, which was identified as the earring of the complainant, Jesse Gagnon. Sergeant Sparling gave evidence that this earring was located during the search on the floor by Mr. Halle Smith’s bed, mixed in with the wooden sticks and pipe, earlier entered as Exhibits 2 and 3. Ms. Gagnon had testified that she had been hit by Mr. Carrie with one of the wooden sticks and that she had lost one of her earrings in the process of being assaulted by Mr. Carrie in Halle Smith’s room on December 13, 2010.

The theory of the crown is that the aforementioned evidence as to events and observations made by various witnesses after Ms. Gagnon left Halle Smith’s apartment on December 13, 2010 corroborates her evidence and as a result, her evidence as to what occurred during the alleged assault with the bat and sexual assault on December 13, 2010 should be believed.

OFFENCES:

(COUNT ONE) SEXUAL ASSAULT (CODE, S. 271)

Mr. Carrie is charged with sexual assault. The formal charge reads:

1. David Daniel Carrie stands charged that he on or about the 13^th day of December, 2010, at the City of Sault Ste. Marie, in the said Region, did commit a sexual assault on Jesse Gagnon-Tegosh, contrary to Section 271 of the Criminal Code of Canada.

Sexual Assault:

1. The real issue in this case is whether the events alleged to form the basis of the crime charged ever took place.

2. It is for the crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that Mr. Carrie was the person involved in them. It is not for Mr. Carrie to prove that these events never happened. If you have a reasonable doubt whether the events alleged ever took place, you must find Mr. Carrie not guilty.

3. You do not decide whether something happened by comparing one version of events with another, and choosing one of them. You have to consider all of the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that form the basis of the crime charged in fact took place.

For you to find Mr. Carrie guilty of sexual assault, Crown counsel must prove each of these essential elements and:

i. that Mr. Carrie intentionally applied force to Ms. Gagnon;

ii. that Ms. Gagnon did not consent to the force that Mr. Carrie applied;

iii. that Mr. Carrie knew that Ms. Gagnon did not consent to the force that Mr. Carrie applied; and

iv. that the force that Mr. Carrie applied took place in circumstances of a sexual nature.

If Crown counsel has not satisfied you beyond a reasonable doubt of each of these essential elements, you must find Mr. Carrie not guilty of sexual assault.

If Crown counsel has satisfied you beyond a reasonable doubt of each of these essential elements, you must find Mr. Carrie guilty of sexual assault.

Each essential element may be made into a question for you to consider carefully and answer.

Did Mr. Carrie intentionally apply force to Ms. Gagnon?

The application of force may be direct, for example, by Mr. Carrie using a part of his/her body, such as a hand, finger, foot or penis or indirect, for example, by Mr. Carrie using an object, such as a stick or other instrument.

The force applied may be violent, or even gentle. To be an assault, however, Mr. Carrie must apply the force intentionally and against Ms. Gagnon’s will. An accidental touching is not an intentional application of force.

The word “intentionally” refers to Mr. Carrie’s state of mind when he applies the force. “Intentionally” means “on purpose”, in other words, not by accident. To decide whether Mr. Carrie applied force intentionally, you will have to consider all the circumstances surrounding the application of force. Take into account the nature of the contact and any words or gestures that may have accompanied it, along with anything else that indicates Mr. Carrie’s attitude or state of mind at the time he applied force to Ms. Gagnon.

It was the evidence of the complainant, Ms. Gagnon, that after the first sexual encounter with Mr. Carrie on December 13, 2012, which was consensual, she went back into the main room of Mr. Halle Smith’s apartment and “drank a little more”. Ms. Gagnon indicated that Dave was upset and said to her “how dare you stop me” referring to the first sexual encounter. The evidence of Ms. Gagnon is that she and Mr. Carrie went back into the bathroom and while in the bathroom, Mr. Carrie pushed her into the tub with her face first, and pulled down her pants from behind. She indicated, “he was pushing himself on me”. Ms. Gagnon indicated in her evidence that “he put his penis in my vagina” and began to have sex and that Mr. Carrie put “his fingers in my ass.”.

If you are not satisfied beyond a reasonable doubt that Mr. Carrie intentionally applied force to Ms. Gagnon, you must find Mr. Carrie not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Mr. Carrie intentionally applied force to Ms. Gagnon, you must go on to the next question.

Did Ms. Gagnon consent to the force that Mr. Carrie (intentionally) applied?

Consent involves Ms. Gagnon’s state of mind. It is the voluntary agreement of Ms. Gagnon that Mr. Carrie do what he did in the way in which he did it and when he did it. In other words, Ms. Gagnon wanted Mr. Carrie to do what he did. A voluntary agreement is one made by a person, who is free to agree or disagree, of his or her own free will. It involves knowledge of what is going to happen and voluntary agreement to do it or let it be done.

Just because Ms. Gagnon did not resist or put up a fight does not mean that Ms. Gagnon consented to what Mr. Carrie did. Consent requires knowledge on Ms. Gagnon’s part of what is going to happen and a decision by Ms. Gagnon, without the influence of force, threats, fear, fraud or abuse of authority, to let it occur.

Because consent refers to Ms. Gagnon’s state of mind, you will have to consider all the circumstances surrounding Mr. Carrie’s application of force to Ms. Gagnon to decide whether Ms. Gagnon consented to it. Take into account the nature of the contact and any words or gestures that may have accompanied it, including any alleged threats, along with any other indication of Ms. Gagnon’s attitude or state of mind at the time.

With respect to this element of the offence, it was Ms. Gagnon’s evidence that she did not want to go into the washroom with Mr. Carrie the second time and that she told Mr. Carrie that. Her evidence as to the reason why was that she didn’t feel comfortable in having sexual relations in someone else’s home. It is Ms. Gagnon’s evidence that when Mr. Carrie put his penis into her vagina and when Mr. Carrie put his fingers in her ass she asked him to stop. She indicated in her evidence that it hurt and she was crying and she said to Mr. Carrie “please stop”. It is Ms. Gagnon’s evidence that Mr. Carrie did not stop and that she continued to ask him to stop “begging him to stop” as she put it throughout this encounter which she says went on for 5 minutes.

If you have a reasonable doubt whether Ms. Gagnon consented to the force that Mr. Carrie (intentionally) applied, you must find Mr. Carrie not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Ms. Gagnon did not consent to the force that Mr. Carrie (intentionally) applied, you must go on to the next question.

Did Mr. Carrie know that Ms. Gagnon did not consent to the force that Mr. Carrie (intentionally) applied?

This element involves knowledge, a state of mind, Mr. Carrie’s state of mind. Crown counsel must prove beyond a reasonable doubt that Mr. Carrie knew that Ms. Gagnon did not consent to the force that Mr. Carrie (intentionally) applied. To ‘know’ something is to be aware of it, at the time you do it.

I am submitting to you that in the circumstances of this case, it is clear that if you accept the evidence of Ms. Gagnon and accept that she was crying and told Mr. Carrie to “please stop” and continued to ask him to stop, to use her own words “begging him to stop”, that Mr. Carrie would have known that Ms. Gagnon was not consenting to the sexual act. If Ms. Gagnon’s evidence is accepted, Mr. Carrie simply cannot argue that he did not know that Ms. Gagnon was not consenting to the sexual activity.

Your finding in relation to the element of this offence will therefore be determined on the basis of whether or not you should accept Ms. Gagnon’s evidence that she made the statements to Mr. Carrie.

Did apply force to Ms. Gagnon in circumstances of a sexual nature?

A sexual assault is any intentional application of force, even an intentional touching, which occurs in circumstances of a sexual nature so that the sexual integrity of Ms. Gagnon is violated. It includes any act that is meant to degrade or demean Ms. Gagnon for Mr. Carrie’s sexual pleasure. An intentional touching takes place in circumstances of a sexual nature if you are satisfied beyond a reasonable doubt that the sexual context of the touching would be apparent to any reasonable person who saw it happen.

To decide whether the force was intentionally applied in circumstances of a sexual nature, you should examine all the circumstances surrounding what Mr. Carrie is alleged to have done. Consider, for example, the part of the body Mr. Carrie touched, the nature of the contact, and the situation in which it occurred. Take into account any words or gestures that may have accompanied the conduct and all the other circumstances in which what is said to have happened occurred. The purpose of the application of force or touching, as well as any threats, may also help you decide whether it was of a sexual nature.

Once again, with respect to this fourth element of the offence, it is my view that if you find Mr. Carrie touched and applied force to Ms. Gagnon without her consent, such force was applied in circumstances of a sexual nature. There is no suggestion that the touched was intended for anything other than sexual gratification.

Although you need to make a finding with respect to this element, as well as the previous element, your finding will be based on your findings in relation to the first two constituent elements of this charge.

Please record your decision on the verdict sheet provided for you.

[25] Mr. Carrie has been in custody on the predicate charge since December 15, 2010. That means that Mr. Carrie has had 68 months of pre-sentence custody to the date of his sentencing on June 29, 2016.

Behaviour While in Custody

[26] The Crown filed as Exhibit 23 a brief titled “Occurrences in Custody” which are behavioural incidents that the offender has been involved with while incarcerated. The Crown was clear in submitting this document that it was relying on the information as observations and not proof of misconduct while Mr. Carrie was incarcerated.

[27] A sampling of what is reported is as follows:

(a) March 19, 1993: “Carrie was receiving a tattoo on his left arm”.

(b) December 20, 2001 @ 12:25: “On the above time and date while feeding I/M Carrie exited his cell while the control was trying to lock up the even side of the range, this inmate went into the kitchenette on this range and did not lockup with the rest of the range. The doors had been shaken 3 times.”

(c) January 9, 2002 @ 16:50: “On the above date and approx. time I/M Carrie returned to unit from recreation with the wrong range. Returned with last range called, his range was the first one called ‘ongoing behaviour’”

(d) July 30, 2002 @ 9:35: “On the above date and approximate time, while conducting a routine cell search, this officer did find a homemade tattoo needle in Carrie’s cell”.

(e) April 19, 2003 @ 22:00: “On the above noted date and approx. time I/M Carrie (FPS #6715098) was disrespectful to this officer. While trying to explain to I/M Carrie how the range policy was going to be run after the 2000 count he would not take the time to listen and told me to ‘Fuck off. Do what you want’. This type of attitude seems to be an ongoing thing with I/M Carrie and is not suitable behaviour for a range rep. The CS in charge was notified of this incident.”

(f) August 18, 2003 @ 18:36: “On the above date and approximate time while conducting a range walk and the 10 out policy I closed cell 17-3-F who works in the kitchen. I continued my range walk on the second tier and inmate Carrie came right up to me and proceeded to swear and raise his voice at me. Inmate Carrie said that the kitchen workers are supposed to be allowed out plus the 10 out. I tried to explain to inmate Carrie that they are to be included in the 10 out. Inmate Carrie did not agree with this and told me not make any problems on the fucking range. I informed Correctional Supervisor J. Feeney and he came to the range and spoke with inmate Carrie. This incident has also been written in the range log book.”

(g) November 27, 2003: “I/M Carrie did refuse a direct order to lock up as part of institutional routine for 08:00 hours work up.”

(h) February 2, 2004 @ 8:20: “On the above date inmate Carrie (FPS #671509B) came down to Healthcare to receive his methadone. Inmate Carrie was placed in the holding cell where he was given his methadone by the nurse. While on camera inmate Carrie was observed lifting his shirt to his mouth, as if to be diverting his methadone. The wing and cells were notified, so that inmate Carrie could be searched on his way back. The VCR tape for this incident was pulled for CX1 Lambert to give to the IPSO.”

(i) November 5, 2004 @ 8:35: “On the above date and approximate time I gave I/M Carrie a direct order to extinguish his cigarette because he was in a no smoking area. I/M Carrie refused my order and continued to smoke. He exhaled the smoke towards me.”

(j) November 14, 2004 @ 07:50: “Inmate Carrie threatened saying ‘You’re a fucking goof! I’m gonna punch you in the mouth someday’.”

(k) September 28, 2005 @ 09:25: “On above date inmate Carrie was informed that because of a random selection he was requested to provide a urine sample. He refused stating he was gated and would not provide. He was informed he would be charged.”

(l) On December 21, 2005, David Carrie tested positive for opiate A – morphine.

(m) March 18, 2006 @ 07:55: “On March 18, 2006 at approximately 0740 I/M Carrie from upper F was asked by the nurse to show her his mouth to see if he had swallowed his meds. At this point I/M Carrie kept walking and ignored her. Once again she asked him to show her, but his response to her was ‘fuck off’. It appeared that he had not swallowed the medication. At this point I called the wing and informed them of the situation.”

(n) April 23, 2006 @ 20:10: “At the above date and time inmate Carrie FPS# 671509B did approach the Upper F office window and asked this officer to open his cell door. This officer informed inmate Carrie that two other inmates on the range and that this officer needed the range to be in compliance with the locked door policy (zero doors open) before his request could be granted. This officer further advised Carrie that this officer was not in charge of upper F but rather upper G and as such this officer was unable to “bend the rules on another officer’s range”. This officer then informed Carrie that the officer in charge of upper F would return in short order, and that he would have to ask her upon her return. Inmate Carrie immediately became verbally abusive towards this officer and called this officer “a fucking goof” and “a fucking bitch”. This officer again tried to reason with Carrie but he continued to be disrespectful to this officer then slammed the window shut. Inmate Carrie returned to the window a short moment later and demanded “open my fucking door or you ain’t going to get me in!”.

(o) May 7, 2006 @ 13:50: “On Sunday May 7, 2006, this officer was doing a range walk with Officer Clarke Baker. While walking the bottom tier, this officer witnessed inmate Carrie sitting at the table closest to the office, smoking a cigarette.”

(p) June 6, 2006 @ 07:20: “Inmate Carrie leaves the range to go to health care when it was not his med time. Carrie did lie stating he was a diabetic.”

(q) June 24, 2006 @ 13:20: “On the above date and time I observed inmate Carrie receive a tattoo on his left forearm from inmate.”

[28] At Tab 19 of Exhibit 23 are various occurrences and misconduct reports spanning from September 15, 2006 to as recent as February 11, 2015. A review of these reports indicate that the violations complained off range from the offender using foul and vulgar language toward staff, to being non-compliant, to acts of defiance and not finally on February 11, 2015 concealing contraband in his rectum.

[29] In reviewing the totality of these records, I am not concerned that these incidents are excessive or that they indicate that Mr. Carrie was dangerous to the staff or to other inmates while he was incarcerated. In my view, they reflect incidents that are to be expected given what the offender was sentenced for and given his criminal record. In his reply evidence, Dr. Philip Klassen, described these incidents as “not particularly bad” in that he did not place much emphasis or weight on them in the conclusions he reached about the likelihood of Mr. Carrie to re-offend.

Pattern of Repetitive Behaviour

[30] For a designation of an offender as a dangerous offender under section 753.(1)(a)(i) of the Criminal Code of Canada, the Crown must initially establish that offender has been convicted of a “serious personal injury offence” as described in section 752 and that “the offender constitutes a threat to the life, safety or physical or mental wellbeing of other persons on the basis of evidence adduced at the hearing establishing “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”.

(Section 753.(1)(a)(i) C.C.C. )

[31] The offence of sexual assault, the predicate offence underpinning this application, is a serious personal injury offence. This fact was not disputed by the offender.

[32] Although the defence did not go so far as to concede that there is a pattern of repetitive behaviour established by the three convictions of sexual assault, the defence did indicate that there was “something there” in the nature of a repetitive pattern.

[33] In R. v. Langevin (1948), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336, the Ontario Court of Appeal addressed what is required to fulfil the element of a “pattern of behaviour”. The court in that decision found that a pattern is not solely dependent on the number of offences that the offender omitted but also in the similarity in the offences (par 30).

[34] In R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963, the Ontario Court of Appeal made the following comments at paragraph 40:

The pattern of behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of behaviour is the same, so that the concerns raised by Marshall J.A. – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

[35] As noted in R. v. Neve (1991), 1999 ABCA 206, 71 Alta. L.R. (3d) 92 (Alta. C.A.) at paragraph 113:

Similarity...can be found not only in the types of offences but also in the degree of violence or aggression threatened on the victims.

[36] The three sexual assault convictions for Mr. Carrie detailed in the previous paragraphs (the 1991 conviction, the 2001 conviction and the 2010 convictions) in my view have striking similarities and indicate a pattern of repetitive behaviour by the offender. The offences that Mr. Carrie perpetrated involved people that he knew. In the 1991 incident the complainant was a friend of Mr. Carrie’s whom he had grown up with. In the 2001 and 2010 incidents, the complainants were females that Mr. Carrie was involved in an ongoing relationship with. The latter two incidents would aptly be referred to as offences of domestic violence. All three offences were violent in nature. All three incidents involved some restraint and confinement of the complainants. The latter two offences involved the consumption of large quantities of alcohol by Mr. Carrie and the consumption of drugs by him. All three offences included full sexual intercourse and full penetration by Mr. Carrie without the consent of the complainants.

[37] In my view, these similarities between the 1991, 2001 and 2010 actions of sexual assault indicate a pattern of repetitive behaviour and I am satisfied that the Crown has established this beyond a reasonable doubt.

[38] That brings us to the second part of the test in section 753.(1)(a)(i). In addition to establishing the pattern of repetitive behaviour the Crown must establish “a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons through failure in the future to restrain his behaviour”.

(Section 753.(1)(a)(i) C.C.C.)

[39] It is this second part of section 753.(1)(a)(i) C.C.C., the likelihood of future behaviour, that was the major focus of the dangerous offender hearing and which the court must now turn its attention to.

Risk Assessment

[40] David Carrie was assessed, pursuant to a court order, by Dr. Philip E. Klassen. Dr. Klassen was called by the Crown to testify.

[41] Dr. Klassen has a practice in forensic psychiatry. Dr. Klassen has been a forensic psychiatry fellow for over 20 years and has vast experience in assessments and reports and estimates that he has prepared roughly 160 to 170 assessments under section 752.1 of the Criminal Code of Canada. Dr. Klassen has been qualified as an expert on many occasions and has testified extensively in court. There was no contest about Dr. Klassen’s qualifications and he was qualified by this court as an expert in forensic psychiatry and in diagnoses and risk assessment and risk management related to offenders. Dr. Klassen’s curriculum vitae was filed as Exhibit 1.

[42] Dr. Klassen prepared an extensive report with respect to Mr. Carrie. This report, dated January 20, 2013, was filed as Exhibit 2. Dr. Klassen indicated that “risk assessment” involves “trying to generate some kind of probability statement or a conditional probability statement as to whether something will or won’t, or more specifically, is more or less likely to happen”. Risk assessment in forensic psychiatry involves the use of structured or actuarial tools. Dr. Klassen indicated in his evidence that structural or actuarial tools do a better job in predicting risk than the clinical judgment of a psychiatrist.

The structured or actuarial tools are not fool-proof and do not generate perfect or absolute results. As Dr. Klassen put it in his evidence:

The challenge, of course, is the tools are imperfect, although the blessing is, you know what the error is associated with them, which you never know with clinical judgment. And the other challenge is that tools describe an outcome for a group of people, but of course, when we come to court we’re concerned about one person and so sometimes there are translation issues from the group data to the individual person, which in this case, of course, is Mr. Carrie. That being said, the practice standard certainly these days is to use instruments like and I’m sure we’ll hear more about them, the psychopathy checklist or PCL-R, the HCR-20, the Static 99 and others.

[43] Dr. Klassen met with the offender in November and December of 2012 for a period of approximately 9 hours. By way of background information in preparing his risk assessment, Dr. Klassen reviewed material pertaining to the time Mr. Carrie spent in Provincial institutions and with Correctional Service Canada. Mr. Carrie underwent phallometric testing. Dr. Klassen also spoke to Mr. Carrie’s mother and a former partner, Sara Bower, spending approximately one hour with each of them.

[44] In the first 13 pages of his report, Dr. Klassen sets out the history and background of David Carrie, including his childhood, educational, employment and relationship history. Dr. Klassen also discusses Mr. Carrie’s substance abuse history. In pages 13 to 28 of his report, Dr. Klassen details and comments on Mr. Carrie’s past criminal activity and his criminal record. From pages 29 to 33 in his report, Dr. Klassen reviews Mr. Carrie’s institutional history and history of community supervision. On pages 34, 35 and 36 of his report, Dr. Klassen details his interview with Mr. Carrie’s mother, Betty Saaramaki. On pages 36 to 39 of his report, Dr. Klassen details his interview with Mr. Carrie’s former partner, Sara Bower. From there Dr. Klassen details the results of his mental status examination of Mr. Carrie. From page 42 onward in his report, Dr. Klassen comments on his opinions and recommendations.

[45] On page 44 of his report, Dr. Klassen states,

It is not my opinion that this gentleman suffers from an underlying sexual behaviour disorder. Phallometric testing was unhelpful, given possible manipulations of test outcome. That being said, it is my sense that the variables that have given rise to this gentleman’s sex offending are, largely, the same variables that have given rise to his offending in other areas. These criminogenic variables will be addressed in more detail elsewhere in this report, but generally speaking include a prediction for hyperdominant behaviour, aggressive pursuit of self-serving interests, devaluation of others around him, and disinhibition in the context of substance intoxication.

[46] Under the heading “Risk Assessment” starting at page 46 of his report, Dr. Klassen sets out the background for the actuarial testing that he performed on Mr. Carrie. It is useful to repeat these comments which are as follows:

Scientific research has consistently shown that actuarial methods of risk assessment are the most accurate. Actuarial methods provide probabilistic estimates of risk, based solely on empirically established relationships between predictors and the outcome of interest; a probabilistic estimate of risk indicates the percentage of people with the same score, on a given metric or risk assessment tool, who would be expected to re-offend within a defined period of opportunity. Among the best actuarial methods of risk assessment are the Violence Risk Appraisal Guide (VRAG), and the HCR-20, to be used when the index offense was a non-sexual offense, and the Sex Offender Risk Appraisal Guide and STATIC99-R (to be used when the index offense was a sexual offense). Most of these tools also incorporate the Psychopathy Checklist-Revised (PCL-R), which in and of itself is a useful risk assessment tool, and is also of assistance in predicting compliance with community supervision and treatment responsiveness.

For many years the term psychopathy was largely a lay term, poorly operationalized and understood. Over the past approximately two decades, due largely to the work of Dr. Robert Hare and his colleagues in the construction and repeated validation of the Psychopathy Checklist-Revised (PCL-R) our understanding of psychopathy has been greatly enhanced. Psychopathy is the personality dimension felt to be most related to offending behaviour. The “gold standard” for the measurement of psychopathy is the PCL-R. This is a semi-structured instrument that appraises individuals in 20 domains. Each domain may be scored 0, 1, or 2, thus rendering a total score on a continuum from 0 to 40, with 40 out of a 40 points representing Dr. Hare’s conceptualization of the prototypical psychopath. All scores on this continuum are felt to be significant.

[47] Dr. Klassen’s scores for Mr. Carrie using the actuarial testing and his explanation for the scores follow his explanation of the tests as set out in his report, beginning on page 47 as follows,

To score an individual using the PCL-R, a rater must be trained in this instrument. I am so trained. My score for this gentleman, with no items omitted and prorated, is 34 out of a possible 40 points. A score of 34 exceeds any diagnostic threshold for psychopathy. This score places this gentleman on the 96^th percentile, with respect to a reference sample of North American offenders. A score of 34 is a very high score. Individuals with scores in this range are at elevated risk of general and violent recidivism, and typically present with very significant difficulties as regards treatment responsiveness and community supervision.

I’ve chosen, in terms of purpose-built risk assessment tools, to score in this gentleman on the STATIC99-R, SORAG, and the HCR-20. The STATIC99-R and the SORAG assess risk for sexual and/or violent recidivism. The HCR-20 assesses risk for violent recidivism alone.

My score for this gentleman on the STATIC99-R is 5. A score of 5 places this gentleman on approximately the 89^th percentile, in comparison with the reference or standardization samples. In terms of relative risk, persons with a score of 5 present with 2.7 times the risk of sexual or violent recidivism, compared with the “average” sex offender. Similar scoring individuals recidivated violently or sexually at a rate of 46% over 10 years opportunity in the community (combined recidivism).

My score for this gentleman on the SORAG is 28. A score of 28 places this gentleman on the 96^th percentile, with respect to the reference or standardization sample. Similar scoring individuals recidivated violently or sexually at a rate of 89%, over 10 years opportunity in the community, albeit the reader should note that the probability estimates for the HCR-20 (below) and the SORAG are now somewhat dated, baserates of violent offending have declined, and these probability estimates may overestimate risk somewhat.

The HCR-20 is a 20 item instrument, wherein each item may be scored 0, 1, or 2, thus rendering a total score on a continuum from 0 to 40. Mr. Carrie’s score on this instrument is 33. Similar scoring individuals, in a federal correctional sample, recidivated violently at a rate of 93% over approximately 7 and one half years in the community (albeit the caveat as regards baserates of recidivism, and possible overestimate of risk, applies).

[48] As to the cumulative meaning of the aforementioned testing on Mr. Carrie, Dr. Klassen opines on page 48 of his report,

Taken together, in my opinion, this gentleman presents as being at high to very high risk of serious (violent, sexual or both) recidivism at this time.

[49] As to the criteria for a dangerous offender or long-term offender designation as set out in section 753 of the Criminal Code of Canada, Dr. Klassen states at page 49 of his report,

Given this gentleman’s lengthy history of problematic behaviour, and his failure to modify his lifestyle, or pursue self-change in the context of his history, it is my opinion that he’s shown, from a purely psychiatric perspective, indifference to the reasonably foreseeable consequences of his behaviour.

Accordingly, from a purely psychiatric perspective, it is my opinion that the test for dangerous offender status is likely met.

[50] In his oral evidence before the court, Dr. Klassen elaborated on his report and, in particular, the testing performed on Mr. Carrie. Dr. Klassen described the PCL-R score for the offender as “high” placing him in the 96^th percentile with respect to a reference sample of North American offenders. Dr. Klassen indicated in his evidence that he was not surprised by this score, given Mr. Carrie’s life history and his offence history given the fact that the PCL test is a measure of criminal values, criminal thinking and lifestyle. Dr. Klassen opined that individuals with scores on the PCL-R test like Mr. Carrie had experienced poorer outcomes in terms of treatment and recidivism, at least until they got older. Dr. Klassen acknowledged in his evidence that the PCL-R is not a good predictor of sex offence recidivism.

[51] As to the other tests used, Dr. Klassen in his evidence indicated that the SORAG considered general crime type factors whereas the STATIC99-R tends to be more about sexual deviance. Dr. Klassen described Mr. Carrie’s SORAG score as a “very high score”. Based on the STATIC99-R score, Dr. Klassen could not say that there is a probability of sexual violence recidivism with respect to Mr. Carrie. Dr. Klassen did testify that the tests indicated a probability of general violence or domestic violence recidivism, although Dr. Klassen could not comment on the severity of that violence. There is a probability of some kind of violence and Dr. Klassen indicated that the domestic violence context is of the greatest concern with respect to Mr. Carrie. It was Dr. Klassen’s opinion that the “likelihood test” in section 753.(1)(a)(i) of the Criminal Code is met in Mr. Carrie’s case for “some kind of interpersonal violence”.

[52] With respect to the treatment that Mr. Carrie has had while incarcerated and since Dr. Klassen’s report was prepared, Dr. Klassen did not know the full particulars or how Mr. Carrie did in these programs. Dr. Klassen did say that 30 hours of treatment is a small amount considering Mr. Carrie’s background and that higher doses of treatment tend to be more successful. It was Dr. Klassen’s opinion that it would be hard to imagine Mr. Carrie not going back to his old lifestyle and returning to the same “crucible that gave rise to these behaviours” if he was released from custody at this time.

[53] In his evidence in-chief, Dr. Klassen testified that he would be very circumspect about Mr. Carrie’s treatment possibilities and that he would place more weight on external controls and the aging process when it came to reducing the risk of re-offending with respect to Mr. Carrie.

[54] In his report dated January 20, 2013 (Exhibit 2), Dr. Klassen addressed the issue of advancing age when it comes to a likelihood to re-offend. On page 52 of his report, Dr. Klassen states,

Empirical evidence, looking at group data, suggests that once individuals, even individuals with high PCL-R scores, reach older age, their acting out behaviour declines, significantly (even while their criminal values and attitudes may remain the same).

This view was repeated by Dr. Klassen in his viva voce evidence at the hearing where he indicated that the risk becomes more assumable as a person moves through his 50’s and the closer you get to the age of 60. Dr. Klassen described the period of between the ages of 50 to 60 as a period of significant change where people become less aggressive sexually and violently. This means that in many respects, Mr. Carrie is in his last decade for his potential of re-offending.

[55] The evidence of Dr. Philip Klassen was not the only evidence the court received with respect to the risk posed by Mr. Carrie and the “likelihood” in the future of Mr. Carrie re-offending. The court also had the benefit of evidence called by the offender, through the report and viva voce evidence of Dr. David Nussbaum.

[56] Entered as Exhibit 28 was the curriculum vitae for Dr. Nussbaum. Dr. Nussbaum received his Ph.D. in biological psychology in 1983. That document indicates vast experience in research, teaching and academic publication. From 2003 to the present time, Dr. Nussbaum has worked as a research psychologist at the Forensic Program, Ontario Shores Centre for Mental Health Services in Whitby, Ontario. Dr. Nussbaum has extensive experience in doing risk assessment and risk evaluation and since 1997 he has been a member of the Ontario Review Board and has reviewed assessments of others in that capacity. The Crown was content that Dr. Nussbaum be qualified to provide opinion evidence and qualified to provide evidence as to risk assessment, management of offenders and the neurological and personality make-up of offenders.

[57] At the request of the defence, Dr. Nussbaum prepared a report which was entered as Exhibit 29. In his report, Dr. Nussbaum identifies the information he received, the interviews he conducted and the tests administered by him. It is fair to say that when examining the tests he performed and the tests that Dr. Klassen performed, that Dr. Nussbaum’s testing was more diverse, wide-ranging and holistic than Dr. Klassen. Dr. Nussbaum employed neuropsychological and cognitive testing as well as personality assessment in addition to the risk assessment instrument, the PCL-R-2 employed by him. The fact that the type of testing employed by Dr. Nussbaum is more wide-ranging than Dr. Klassen should not come as much of a surprise given the fact that Dr. Nussbaum is a psychologist and Dr. Klassen is a forensic psychiatrist.

[58] At the outset of his report, in fact on the first page, Dr. Nussbaum offers his opinion as follows,

The ultimate opinion in this Dangerous Offender hearing and an associated disposition lies with the court. This report is merely an attempt to assist the court to determine whether or not there is a pattern of offending of which the predicate forms a part. I will present evidence and reasons below in support of my opinion that given the salient changes in Mr. Carrie, a conclusion that he is likely to cause harm to another in the foreseeable future is less clear. Mr. Carrie is motivated. Treatment for his specific needs is available. In my view targeted treatment delivered in a timely manner is the best approach. The requisite degree of supervision is best determined by the court. It is difficult here to see qualitative differences between a probation order and an LTSO. What may be most important for Mr. Carrie is a balance between treatment and conditions that would support and motivate him as opposed to impede him.

[59] It is clear in his report and from his viva voce evidence that Dr. Nussbaum had a differing view as to what can be gleaned from the actuarial testing. The actuarial testing, according to Dr. Nussbaum, places an emphasis on static factors. As he indicated in his evidence, the fundamental idea of actuarials is that people don't change. Dr. Nussbaum does not feel that this belief is borne out in the recent psychopathy literature. An actuarial test is an observation of the individual based on the items being addressed or examined. The interpretation is relative to a group that scores and a group statistic is used to make a prediction about the individual. For Dr. Nussbaum the PCL score is a factor that is looked at but, as he put it, “it is just one piece of the puzzle”.

[60] It was Dr. Nussbaum’s evidence that it is important to get current information about the offender, as factors may change. As Dr. Nussbaum stated in his evidence, “it is useful to have something that is relevant to the time in question”. In this view, Dr. Nussbaum cautioned against using HCR-20 scores that are dated. Asked directly if a HCR-20 score from 2012 could be relied upon, Dr. Nussbaum answered “no”. Dr. Nussbaum indicated that if there is a reason to believe that something has changed with respect to the offender that the HCR-20 test should be re-applied, as the test relies on both non static and static factors.

[61] It is fair to say that some of the tests administered by Dr. Nussbaum on Mr. Carrie focused on treatment options and how treatment can best be focused to be effective rather than the assessment of risk or the likelihood to re-offend. For example, the Wisconsin Card Sorting Test reflected that Mr. Carrie’s verbal skills are better and that he has a normal level of attentional functioning. From the Iowa Gambling Task, Dr. Nussbaum concluded that Mr. Carrie is amenable to assistance to change his decision making to forward thinking rather than dwell in the past or the present. The Stroop Test scored Mr. Carrie in the mid-average range meaning that he has the neuro resources to obey decisions and rules. He has the neuro capacity to use instructional information. As Dr. Nussbaum indicated in discussing the results of the TSI-2 testing (the Trauma Symptom Inventory - 2^nd Edition) on page 11 of his report, “...Consequently he does not appear to be suffering from clinically relevant post-traumatic stress at the present. Absence of PTSD considerations at present removes a potential complication from Mr. Carrie’s current treatment needs”.

[62] As to formal risk assessment testing done by Dr. Nussbaum, as is indicated on pages 13 and 14 of his report, he used the PCL-R-2 and HCR-20, Version 2. Dr. Nussbaum scored Mr. Carrie at a 26 on the HCR-20. Dr. Klassen scored Mr. Carrie at a 33 on this test. Dr. Klassen indicated in his evidence that a score of 26 is still considered a high score on the HCR-20. Dr. Nussbaum’s comments on his scoring of the HCR-20 are indicated on the bottom of page 17 of his report as follows,

Given that Mr. Carrie, at least in my clinical judgment based on the information available to me at this point in time, his present Clinical and Risk realities provide an optimistic sense of his positive response to treatment moving forward, notwithstanding his significant Historical issues.

[63] On the PCL-R-2, Dr. Nussbaum scored Mr. Carrie a 28. Dr. Klassen used the PCL-R, not the second version of the test, which in his evidence caused Dr. Nussbaum some concern. Dr. Klassen scored Mr. Carrie a 34 out of a possible 40. Dr. Klassen indicated in his report (page 47),

A score of 34 is a very high score. Individuals with scores in this range are at elevated risk of general and violent recidivism, and typically present with very significant difficulties as regards treatment responsiveness and community supervision.

[64] It was the opinion of Dr. Nussbaum, expressed clearly in his viva voce evidence that Mr. Carrie was in the process of change and that he was being sincere and viewing his life in a different way. This psychologist was of the firm view that Mr. Carrie is sincerely motivated to make meaningful changes and was in the process of change when he conducted his assessment on him. As Dr. Nussbaum indicated in his evidence, personalities can change which is why psychotherapy exists. Dr. Nussbaum testified that “where I believe he is today is different than where he was 4, 5 or 10 years ago”. As Dr. Nussbaum indicated in his evidence, “I believe he has made a real shift, he turned the corner. It seems like there has been a real change there”.

[65] In his viva voce evidence, Dr. Nussbaum testified that he disagreed with Dr. Klassens conclusion that Mr. Carrie suffered from an anti-social personality disorder. Dr. Nussbaums view of Mr. Carrie is that he presented as a good child until he was placed in the care of his father when he was approximately 10 years of age. At that time, while residing with his father, Mr. Carrie was exposed to “an extremely stressful and abusive situation” which, in Dr. Nussbaum’s view, would have had an effect on anyone. As a result of this external experience, Mr. Carrie experienced a shift in the type of person that he was. In Dr. Nussbaum’s opinion, this shift in Mr. Carrie was not as a result in an innate condition such as an anti-social personality disorder, but rather has an external explanation. As to the anti-social personality disorder diagnosis given by Dr. Klassen, in his evidence, Dr. Nussbaum indicated, “I would not give that diagnosis personally given the information that I have.” Dr. Nussbaum cited the Personality Assessment Inventory (PAI) testing results as consistent with Mr. Carrie not having an anti-social personality disorder.

[66] On the evidence it is clear that Dr. Klassen’s focus was on the past criminal behaviour as a predictor of the likelihood of future criminal behaviour whereas Dr. Nussbaum’s focus was on the changes that had occurred with respect to Mr. Carrie and his continued commitment to change. This is amply evident in the last paragraph of page 21 in Dr. Nussbaum’s report and in the first two paragraphs of page 22 of his report which reads as follows,

Is there anything specific about Mr. Carrie’s relatively recent life circumstances that indicate that he now sincerely motivated for positive change in his life? It is my clinical opinion that he is currently sincere about his desire to change and that the “catalyst” for this change was the protracted and painful demise of his sister Terry to live disease (cirrhosis) was identified as a motivational force by his three family members and Rev. Russo. The seriousness of her addiction saw her continuing consumption of alcohol even after obtaining a liver transplant. I believe that was the principle event that changed Mr. Carrie’s attitude about his life. It made him stop and realize that he had to do something different or if ever released would face a similar end. This moved him from Precontemplation to Contemplation. With that seismic shift, he began reflecting (Contemplating) about how his irresponsibility and self-centeredness negatively impacted his aging mother and surviving sisters. This for the first time in his adult life generated a realistic appraisal of where his life was and what his future would look like. His words were “I was scared straight” and while I believe that expression is overused and misunderstood, for the first time it shook him from his psychological perch and induced a sense of anxiety that worked to dispel his earlier feelings of social dominance bordering on invincibility.

It is my opinion that his sister Terry’s illness and ultimate passing was the event that triggered Mr. Carrie’s loss of dominance, inducing the changes and willingness to obtain help expressed by Mr. Carrie. It also induced a sense of regret for wasted parts of his life and the harm he caused his family members and victims. There is evidence that he has responded appropriately to relevant treatment counselling by Rev. Russo, removing that outcome from the realm of speculation. His family is willing to provide support when he is in the community. It is therefore my opinion that with a comprehensive intervention program, Mr. Carrie can safely continue his rehabilitation in the community. Having observed his late sister’s decline in health, he is also motivated to avoid the path to physical disease that he observed with his sister’s death. He also stated a desire to re-connect with his daughter and his sisters and mother. He feels that he should be there for them.

[67] As to Dr. Klassen’s report, Dr. Nussbaum testified that he “didn’t have qualms with Dr. Klassen’s scoring” but there was more to understanding risk than indicators in VRAG and SORAG scores. Dr. Nussbaum indicated that he was cognizant of what Dr. Klassen had done when he did his assessment and report concerning Mr. Carrie – “I read his report. I don't discount it but I don't think risk is a matter of 2 numbers, there is more to it”.

[68] The bottom line opinion of Dr. Nussbaum is that Mr. Carrie at the present time is not a risk and is not dangerous. That is an assessment made at the present time. As Dr. Nussbaum indicated in his evidence, “If you had asked me this five years ago, I would have had a very different opinion”. In arriving at this conclusion, Dr. Nussbaum indicated that he was “well aware of Mr. Carrie’s harmful behaviours for a large part of his life”. In Dr. Nussbaum’s views, events have intervened in Mr. Carrie’s life that has caused a change and have caused the past pattern to change. Mr. Carrie’s aging, his recent treatment, the influence of his family members and the death of his sister have all been an impetus to the change Dr. Nussbaum indicated in his evidence that what he saw in the testing done on Mr. Carrie is consistent with his interactions with him and what have been observed by Judith Russo and members of Mr. Carrie’s family. Dr. Nussbaum sees in Mr. Carrie an “attitudinal shift” and “a commitment to change”. When the question of a likelihood of Mr Carrie to re-offend was put squarely to Dr. Nussbaum in cross-examination, his evidence was “if he is placed under an appropriate comprehensive management plan, I don't think he is a significant threat to re-offend violently”.

[69] After the evidence of Dr. Nussbaum was received by the court and other evidence was led by the defence (to which reference will be made later in these reasons), Dr. Philip Klassen testified in reply. Dr. Klassen did not have the benefit of Dr. Nussbaum’s report when he had testified earlier in the proceedings but had reviewed Dr. Nussbaum’s written report and excerpts of his viva voce evidence in preparation for his reply evidence. In the early stages of his reply evidence, Dr. Klassen reiterated the opinion he gave when testifying in-chief, which he summarized as follows,

So as I recollect my conclusions, I said that I believe that there was, on the basis of the available instruments, a likelihood of some form of violent re-offence and I think I said that there were some considerations related to age and in relation to those, that the risk in the community under supervision may be assumed.

[70] As to Dr. Klassen’s comments about Dr. Nussbaum’s view that a probation order being a feasible solution instead of a long-term supervision order, Dr. Klassen testified that he could not endorse a probation order as a solution for Mr. Carrie.

So, I mean, Mr. Carrie, in terms of his history, and I suppose I should say as a preamble because we’ll come up against this periodically, Mr. Carrie has about 35 years of history of living one way and has recently stated that he plans to live a different way and I haven’t seen him, of course, since that statement was made. That being said, empirically, notwithstanding Mr. Carrie’s assertion, I have no grounds to say that the 35 years of living a different way don't have significant weight, in my opinion. And this gentleman’s challenges in terms of community supervision on bail or s. 810 on probation, really are very, very significant and I – I could not endorse probation as a solution. I think in 170 cases like this that I’ve done, the disconnect between the risk, the history and the remedy would stand out as the most significant.

For Dr. Klassen the risk assessment scores for Mr. Carrie identify a significant risk to re-offend and therefore his supervision should be greater than can be provided in a probation order.

[71] Dr. Klassen testified in reply that even if the changes in Mr. Carrie identified by Dr. Nussbaum were true, that he would still prefer to manage Mr. Carrie from a position of security first and then gradually reduce this. As to the changes reported by Dr. Nussbaum in Mr. Carrie and the effect of these changes on his opinion, Dr. Klassen made the following comments,

I guess what I would say is that that may be true. I’m not saying that is or that isn’t true. That exists in a circumstance or a set of circumstances in custody that are quite dissimilar from the community. And we know that good behaviour in custody is not necessarily a predictor of good behaviour in the community. And I would say that I would approach that from a reverse onus situation in the sense that if that change is legitimate, then focusing on public safety, a step-wise cascade to the realization of – of his commitment to a different lifestyle would be the approach I would take rather than an assumption that, or an opinion, a position, that the articulated change is both sincere and durable under real-life conditions.

[72] Dr. Klassen repeated this position at a later point in his reply evidence when he stated,

My preference would be to manage this person from a position of security as opposed to a position of low security and essentially banking on the fact that his aspirations will be realized, as opposed to the possibility that his prior criminal behaviour again be triggered in some way.

[73] In his evidence, Dr. Klassen indicated that even if Mr. Carrie is sincere in the changes he wishes to make that it can best be described as “aspirational rather than practiced when it comes to real-world conditions”. By that Dr. Klassen meant, “Mr. Carrie may well aspire to that, but it is not yet the case that it’s been practiced and could be considerable durable”.

[74] It is clear in the comments of Dr. Klassen that he places much more weight on Mr. Carrie’s past than his present situation in assessing his risk and his likelihood to re-offend. As Dr. Klassen put it, “we know that past behaviour is an important predictor of future behaviour”. Dr. Klassen went on to elaborate in his reply evidence as follows,

I’m not saying that it’s completely determinate and we’ve talked about age and the impact of age, the potential for community controls, treatment and the like, but you know, there is a very, very, very long history of a particular approach to community living and it’s not something that I would submit can be necessarily or should be necessarily dispatched in terms of our considerations because even if Mr. Carrie has sincerely committed himself to a different approach.

[75] Although I did not form the impression from his evidence in-chief that Dr. Klassen was recommending a determinate sentence of a specific duration for Mr. Carrie, it was clear in his reply evidence that he was not suggesting an indeterminate sentence for Mr. Carrie but rather a sentence that included a highly structured release in the form of a long-term supervision order. Although I am not going so far to say that this represents a change in Dr. Klassen’s position it certainly brings his position more in line with that of Dr. Nussbaum although Dr. Nussbaum believes the release management for Mr. Carrie can be accomplished through a probation order and there is not the requisite likelihood of re-offending required to designate Mr. Carrie as a dangerous offender. This shift or perhaps clarification of Dr. Klassen’s position is the likely explanation for the Crown abandoning its position that Mr. Carrie should receive an indeterminate period of incarceration.

[76] Another shift in Dr. Klassen’s position in comparing his evidence in-chief to his reply evidence is that in reply Dr. Klassen conceded that Mr. Carrie does not have to be designated as a dangerous offender to manage his risk, “more top down than bottom up”. As Dr. Klassen indicated in his evidence, his view was that Mr. Carrie can be effectively managed with a long-term offender designation and subject to a long-term supervision order.

[77] Both Dr. Klassen and Dr. Nussbaum in their reports and in their evidence spent a great deal of time discussing the prognosis and treatment plan that Mr. Carrie might benefit from when he is released from custody on either a long-term supervision order (which Dr. Klassen would prefer) or a probation order (which Dr. Nussbaum would prefer). It is fair to say that there are no major disagreements between the two experts as to what programs or course of treatment that Mr. Carrie requires or would benefit from. The major area of disagreement between them is on the amount of supervision that Mr. Carrie will require when he is released from custody.

Other Evidence Called by the Defence

[78] In addition to the two expert witnesses, the court had the benefit of the evidence of other witnesses, which were called by the defence.

[79] The defence called numerous witnesses involved with David Carrie while he has been incarcerated since 2010. Mike Michalycia is the Remand Chaplain at the Algoma Remand Treatment Centre in Sault Ste. Marie, Ontario. He has been on staff for 10 years and provides spiritual care for inmates and staff as well as one-on-one counselling. Mr. Michalycia testified that for the period from 2010 to 2015, David Carrie has spent a significant amount of time at the Algoma Remand Centre. During that time, Mr. Michalycia has worked with Mr. Carrie in 10 to 15 one-on-one counselling sessions and in group programs. Mr. Michalycia described his discussions with Mr. Carrie as “deep discussions” spurred on by family tragedies in his life and health challenges that Mr. Carrie was experiencing. Over the course of time in being involved with Mr. Carrie, Mr. Michalycia testified that he saw a change in Mr. Carrie which he felt was legitimate and sincere. It was Mr. Michalycia’s view that he saw in Mr. Carrie a real desire to address things in his life that he hadn’t addressed in the past. As far as Mr. Michalycia was concerned, Mr. Carrie was in the process of change and “genuine in his desire to change”.

[80] Mark Sicoly is the rehabilitation officer at the Algoma Remand Treatment Centre. He is responsible for the delivery of programs to offenders and has held that position for the past seven years. The programs that Mr. Sicoly run involve cognitive behavioural therapy focusing on decision making, belief systems, feelings, behaviour and consequences. Mr. Sicoly testified that Mr. Carrie went into custody on December 15, 2010 and since that date he was involved with Mr. Carrie in three programs or classes. Mr. Sicoly testified that from January 18 to 21, 2011, Mr. Carried was involved in a six-hour program that focused on substance abuse and coping skills. In February 2011, Mr. Carrie took a five-hour program focusing on change and anger management. That program focuses on awareness and developing tools to deal with anger reaction. In addition to these courses, Mr. Carrie took a life skills/care program that focused on the use of leisure time relating to substance abuse.

[81] Mr. Sicoly described Mr. Carrie as an active participant in programs offered at the Algoma Remand Treatment Centre. As to Mr. Carrie’s conduct at the programs, Mr. Sicoly reported that Mr. Carrie acted appropriately in these courses and that “his responses are relevant”. Mr. Sicoly indicated in his evidence that Mr. Carrie was a good person to have in the programs, describing him as a “role model” for the rest of the inmates.

[82] Mr. Sicoly was very candid and upfront in his responses to questions about whether Mr. Carrie has changed or whether he noticed a change in Mr. Carrie. Mr. Sicoly responded by testifying that the most he could say is that Mr. Carrie appears to understand the content of the courses that he taught him. As to a change in Mr. Carrie, Mr. Sicoly stated “I can’t say that he is changing. I don't know if he is ready to change.” Given that response and the fact that Mr. Sicoly’s involvement with Mr. Carrie was primarily in the 2011 courses he took, Mr. Sicoly’s evidence is of minimal use to the court.

[83] Reverend Judith Russo testified by video link from Newmarket, Ontario. Rev. Russo is a counsellor at the Toronto East Detention Centre and performed that function for seven years prior to her retirement in July 2015. Presently Rev. Russo is an unpaid counsellor at the Toronto East Detention Centre one day a week. Rev. Russo testified that she was engaged in counselling with Mr. Carrie for a period of approximately one year, from May/June 2014 to May/June 2015. Rev. Russo described the counselling as “very focused” in one-on-one sessions. Rev. Russo also offers programs such as “Battlefield of the Mind” which is based on cognitive behavioural therapy and is designed to help people understand how they can take control of their own thoughts.

[84] Rev. Russo testified that Mr. Carrie took the “Battlefield of the Mind” program and received a certificate of completion on June 11, 2015. That program is comprised of four sessions of two hours each and requires work to be done by the inmate outside of the classroom setting. The program also involves video instructions. Rev. Russo testified that Mr. Carrie asked to see some of the videos a second time to re-fix in his mind the concepts that he had learned. It was Rev. Russo’s view that this course helped instill in Mr. Carrie a belief that he could change. As she put it, “It helped him to have that sense of hope that he could change his life”.

[85] With respect to the individual counselling that Mr. Carrie received, Rev. Russo testified that she saw Mr. Carrie twice a month and had over 30 hours in counselling sessions with him. She described forming a “bond” with Mr. Carrie in which she gained his trust. Rev. Russo indicated that she was prepared to continue to work with Mr. Carrie because he was genuinely interested in changing his life. Rev. Russo described the counselling sessions as becoming increasingly involved and taking Mr. Carrie “deeper into aspects of his life”. Rev. Russo described Mr. Carrie as a “sensitive” person and a “generous spirited person”. She described Mr. Carrie’s difficulty in his early life which led him to drugs and alcohol. Mr. Carrie, in Rev. Russo’s opinion is “not a hardened individual” but rather an individual amenable to change and an individual “who wants to reclaim his life and reclaim his relationship with his daughter and his family”.

[86] Reverend Judith Russo described David Carrie as a person who has “a realistic view of his life”. Mr. Carrie has expressed to her “a desire to be clean and sober” and has a clear recognition that he gets himself into trouble when he consumes alcohol or drugs. Rev. Russo described Mr. Carrie’s background as being “on the more severe end of the scale”. As Rev. Russo put it in her evidence, “I have seldom seen the degree of sexual abuse that David talked about”. Rev. Russo described Mr. Carrie’s detailed description of the sexual abuse that he endured with the appropriate affect. Rev. Russo indicated in her evidence that Mr. Carrie had insight about requiring ongoing help and treatment when he is released from custody. As Mr. Carrie put it to Rev. Russo, “I am going to need to talk to someone when I eventually get out”.

[87] It is Reverend Russo’s opinion that the death of Mr. Carrie’s sister, Theresa, had a profound effect on him and assisted Mr. Carrie in obtaining insight about his own life. As Rev. Russo put it, “I think it put him back in touch with emotions that he has suppressed”. Rev. Russo reported that by the spring of 2015, Mr. Carrie had worked on plans for his future and how he would conduct his life outside of an institution. Rev. Russo testified that she had spoken to Mr. Carrie’s 21-year-old daughter who required her father to be free from substances before she was willing to re-connect with him. Rev. Russo described Mr. Carrie as “very motivated to be in his daughter’s life again”.

[88] Rev. Russo indicated that Mr. Carrie strove to have normalcy in his life; that he wanted to avoid things that would bring him back to jail. Part of the plan for this was Mr. Carrie’s recognition that it would be unwise for him to return to live in Sault Ste. Marie, Ontario. Mr. Carrie acknowledged to Rev. Russo and understood that the people he had interacted with in the past in Sault Ste. Marie would not be a good influence on him.

[89] Reverend Russo reported that a lot of time was spent in counselling with Mr. Carrie on the relationship between men and women and how men should treat women. Mr. Carrie acknowledged to Rev. Russo that he needs to do more work on himself before he can have a successful relationship and he indicated that he thinks he should not have a relationship right away after being released from custody. Rev. Russo testified that Mr. Carrie expressed to her regret about his past conduct and how he had treated other people, including the parent he had been to his daughter.

[90] Rev. Russo indicated that over the course of her counselling with Mr. Carrie he became more “self-critical” and showed more insight with respect to his past behaviour. Mr. Carrie had shown a desire and capacity to learn and a desire and capacity to change. Rev. Russo testified that she could see a change in Mr. Carrie, that he was in the process of change, that he had gone beyond contemplating change but was engaged in change. In Mr. Carrie, Rev. Russo found a man who was motivated to take treatment and the capacity to be successfully engaged in treatment.

[91] In cross-examination, Judith Russo acknowledged that she did not do any formal risk assessment tests on Mr. Carrie, as “that is not part of my mandate”. Rev. Russo disagreed with the suggestion made to her by the Crown that Dr. Klassen was in a better position than her to make a risk assessment with respect to Mr. Carrie. As Rev. Russo put it, “he is qualified but not in all cases would his risk assessment be better”.

[92] I must say that I found Judith Russo to be an impressive witness. Her responses to questions were thoughtful and well thought out. She did not evade difficult questions and was very consistent and firm in her views and opinions while giving her evidence without the benefit of notes or a file.

[93] In her evidence, Judith Russo referred to the family of Mr. Carrie and his desire to re-connect with his family members. Some members of Mr. Carrie’s family were called by the defence to testify at the hearing. Patricia Collings (who goes by the name of Patty) is an older sister of David Carrie. Ms. Collings is 58 years of age. In order of siblings there is Patty, Bernadine (56 years old), Theresa (died at the age of 54), David (50), and Robert (referred to as Ralph – age 47). Leo is the biological father of the older three children and Donald is the biological father of David and Ralph. The children’s mother is Betty Saaramaki who is now 77 years of age.

[94] Patty Collings provided the court with evidence regarding her brother David’s upbringing and behaviour as a youth. Ms. Collings testified that at the age of 10 David went to reside with his father for a three-year period. Ms. Collings described David prior to the age of 10 in positive terms as a good student and as a kind person who “did not use bravado to impress people”. David, at that time in his life, was described as “a sweet young man”. Ms. Collings described a change in David Carrie when he returned home after living with his biological father. Ms. Collings describes David as “changed after the came to me from Dad’s house”. She described David as agitated and unfocused. She said that David “had lost his innocence along the way”. Ms. Collings indicated that “she didn’t know what happened but something did”. The evidence of Ms. Collings was clear that her brother David Carrie was a changed person after living with his father from the ages of 10 to 13.

[95] This is not surprising given the description by Patty Collings of the home life when Donald Carrie resided with Betty Saaramaki. She describes physical and sexual abuse inflicted on her mother and the children by her step-father. She described her home life as “terrifying” and described situations where her step-father held a gun to the head of her mother and hit her mother with such force that she dislocated her jaw.

[96] This is the home life that David Carrie experienced when the family was together. There is no evidence as to what life was like with Donald Carrie when he resided alone with his father. One can only imagine. In any event, Patty Collings describes David Carrie as a changed person for the worse after the experience. Ultimately, David Carrie left home at the age of 15 years and was out on the streets.

[97] After David Carrie was out on his own, Patty Collings describes it as a lifestyle of drinking and drugs. Mr. Carrie was involved with a woman by the name of Tina La Palme. David had a child with her, his only biological child. Her name is Robbi-Ann and ultimately she was placed in CAS foster care and adopted by Patty Collings at the age of 15 months. Ms. Collings indicated in her evidence that she feels that her brother David “suffered with the decision” to give his daughter up for adoption at the same time referring to that as “David’s crowning moment” because he was doing what was best for his child.

[98] Patty Collings has gone long periods of time without contact with David Carrie, for a period of time as long as 20 years. Ms. Collings testified that she would get news about David Carrie and it was all bad – he was the same bad person. During that period, Ms. Collings did not want her brother David around her children.

[99] Ms. Collings testified that in or around 2012 she heard that her brother David had some health difficulties. As a result of that, Ms. Collings took the initiative of sending a letter to David Carrie at the Algoma Remand Treatment Centre. Mr. Carrie responded to the letter which resulted in renewed contact between the two of them by telephone calls and correspondence which Ms. Collings describes as “a slow process”.

[100] In her evidence, Ms. Collings indicated that when her sister, Theresa, started to experience health difficulties in 2012, which ultimately led to her death in 2014, is when she started to see a real change in her brother David. He began to be more open in his communication with her. He listened and shared. He discussed his past openly and expressed remorse that he had harmed his family. Ms. Collings indicated in her evidence that she hears a calmness and a sincerity in David Carrie’s voice when she talks to him now.

[101] Ms. Collings testified that David Carrie has attempted to communicate with Robbi-Ann by letter. In those letters, Mr. Carrie was “begging for forgiveness” and indicated his commitment to Robbi-Ann not to do drugs or consume alcohol. Ms. Collings indicated in her evidence that the death of Theresa not only opened up communication with David Carrie but also the entire family. Some members of the family are going to counselling to deal with their past and in general there is a much more open and healthier communication among family members.

[102] Patty Collings indicated in her evidence her commitment to assist David Carrie once he is released. She is committed to attend counselling and meetings with him, to, as she put it, “be part of his healing if given the chance”. Ms. Collings indicated that she is frequently in Sudbury, Ontario as the head office for her husband’s business is there and he maintains an apartment in Sudbury. Ms. Collings is prepared to assist David Carrie in Sudbury, Ontario if that is ultimately where he resides after being released from custody. Ms. Collings testified that as far as her brother David is concerned that “I believe he is ready for change now” and that she is prepared to assist him on his journey of change.

[103] The court also heard evidence from Mr. Carrie’s older sister, Bernadine Scott, who goes by the name of Bernie. She confirmed the evidence of her sister Patty about the home life with Donald Carrie and how her brother David was before living with his father at the age of 10. As to Donald, Ms. Scott indicated that “if he wasn’t screaming at you he was beating it out of you”. She described her home life growing up as “nasty, awful”. Ms. Scott described David, before he went to live with his father, as a “nice little boy” who was “happy” and “loveable”. According to the evidence of Ms. Scott, at the age of 13 David Carrie returned to their home as “troubled” and “anxious”. As she put it “we didn’t get the same person back that left”. Her evidence was that David Carrie came back as a harder, damaged person. Ms. Scott indicated that David Carrie was not the only person with difficulties. She stated “we were all damaged people” as a result of their situation growing up.

[104] David Carrie’s sister Theresa died in April 2014. Ms. Scott testified that she spoke to David Carrie about Theresa’s illness and that he expressed remorse about not being able to be around Theresa or being a brother to her. Ms. Collings went so far as to bring Theresa to the Algoma Remand Treatment Centre to see David Carrie. It was the view of Bernadine Scott that Theresa’s death had an effect on David Carrie. Ms. Scott indicated that David Carrie thought that he could help Theresa with her drug and alcohol problem but did not have the opportunity to do so. David Carrie expressed to her that he had also done drugs and alcohol and thought he could be the next to die in the family but in order to prevent this he had to make changes in his life. Ms. Scott indicated that she also noticed a change in David Carrie when he started to talk to “this woman Chaplain”, Judith Russo. After he began to speak to Rev. Russo, Ms. Scott noted that Mr. Carrie became more open about experiences in this past, including his sexual abuse, and that he “turned into young David, softer David”. Ms. Scott described the change in David Carrie after he began talking to Judith Russo as “like turning on a switch”. Ms. Scott testified that David Carrie had indicated to her that he could talk openly with Judith Russo and “tell her stuff”.

[105] Like her sister Patricia Collings, Bernadine Scott expressed her commitment to assist her brother David with counselling and treatment after he is released from custody. Ms. Scott indicated in her evidence that she believes that Mr. Carrie is committed to succeeding in changing his life “because he wants Robbi-Ann close and the only way he can do this is to walk a different path”.

[106] Ms. Scott was candid in her evidence, particularly in cross-examination, that her brother David has known for a long time that he must abstain from the use of alcohol and drugs to have Robbi-Ann back in his life and in the past has tried to do this unsuccessfully. Ms. Scott also admitted in cross-examination that this “softer side” of David Carrie is not entirely new, in that she has seen it before only to have David revert back to his “harder side”.

[107] From the evidence of Patricia Collings and Bernadine Scott it is obvious that they love their brother David Carrie and are hopeful that he has put his criminal past behind him. From their evidence it is clear that David Carrie’s childhood was a troubled one, particularly with respect to his relationship with his biological father. Both Ms. Collings and Ms. Scott appear sincere in their commitment to assist David Carrie after his release from custody and assisting him with whatever treatment and programs that he may require.

Should David Carrie be Declared to be a Dangeous Offender?

[108] If the criteria in section 753.(1)(a)(i), (the section which the Crown is relying on) is established beyond a reasonable doubt then Mr. Carrie must be found to be a dangerous offender. There is no discretion in the court. It is worthwhile reciting section 753.(1)(a)(i) of the Criminal Code of Canada. It reads as follows:

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

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

(i) A pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour.

[109] As indicated previously in my reasons, I am satisfied that the predicate offence (sexual assault) is a serious personal injury offence as defined in section 752 of the Criminal Code. I am also satisfied, as previously discussed, that the offender has demonstrated a pattern of repetitive behaviour, of which the predicate offence forms a part, that shows a failure to restrain his behaviour. What I must now consider is whether there is a likelihood of causing death or injury or inflicting severe psychological damage by the failure in the future to restrain his behaviour. (Emphasis added.)

[110] With respect to that issue we have the conflicting expert evidence of Dr. Philip Klassen and Dr. David Nussbaum. I believe it to be a fair reflection of Dr. Klassen’s evidence and position that a dangerous offender designation is not required for Mr. Carrie and a long-term offender designation would suffice thereby enabling Mr. Carrie to be placed on a lengthy long-term supervision order. Dr. Nussbaum’s evidence and position is that Mr. Carrie should not be designated as either a dangerous offender or a long-term offender and that a long-term supervision order is not required. In Dr. Nussbaum’s view a probation order would be sufficient.

[111] With respect to the evidence of Dr. Klassen, I found him to be an impressive witness. He was articulate in his responses and was obviously very experienced at testifying in court. Dr. Klassen was confident in findings he reached and the opinions that he expressed. He was very well versed in questions put to him in cross-examination about the literature in the field, research studies, various scholarly opinions, and about the tests that he performed. I found Dr. Klassen very balanced in his evidence and that he truly was the court’s witness and not advocating a position for a party despite the fact that he was called as a witness for the Crown.

[112] Having said that, I have some concerns with respect to Dr. Klassen’s report. I can summarize my concerns as follows:

(a) Dr. Klassen’s report is dated. His report is over three years old and is based on information obtained and testing done in November and December of 2012. This was well before some of the treatment received by Mr. Carrie and certainly before the treatment received by Mr. Carrie from Judith Russo in the one-year period from mid-2014 to mid-2015.

(b) There is collateral information that Dr. Klassen did not seek out or that was not available to him due to the timing of his report. This is especially so related to recent treatment that Mr. Carrie has received while incarcerated and drastic changes in Mr. Carrie’s life, including his own illness and the death of his sister Theresa, which Dr. Nussbaum views as life altering events which have provided an impetus for change in Mr. Carrie. Mr. Carrie’s family relationships and his childhood experience appear to be significant factors in his life which Dr. Klassen minimized in comparison to the approach taken by Dr. Nussbaum. Dr. Klassen interviewed Mr. Carrie’s mother and one previous partner, whereas Dr. Nussbaum interviewed more diverse family members.

(c) It appeared that Dr. Klassen did not use the most current risk assessment tools available to him. By this I have in mind that Dr. Klassen used the PCL-R as one instrument to assess whether Mr. Carrie had an elevated risk of general and violent recidivism. Dr. Nussbaum employed the second version or edition of that test, the PCL-R-2. Dr. Nussbaum testified that the preferred approach in testing is to use the most recent tools available. This makes sense. Dr. Klassen did not provide an adequate explanation as to why he used the more dated version of the PCL-R test.

(d) In his views and approach, Dr. Klassen was wedded to the past. The actuarial testing used by him placed a great deal of emphasis on “static” factors, factors to score that reflect the past and are therefore incapable of change or alteration. The “dynamic” factors to score the test had less of an impact in the total score achieved. This approach is consistent with Dr. Klaeen’s firm view that past behaviour is the best indicator of future behaviour. Dr. Klassen appeared to be closed to the possibility that effective change in Mr. Carrie could occur except change that was age-related; that is that the risk of sexual re-offending would be reduced by the process of age in Mr. Carrie’s 60^th decade of life to near zero by the time Mr. Carrie attained the age of 60 years.

(e) Dr. Klassen was very clinical in his approach with his opinion being primarily based on the actuarial risk tool scores. In contrast, Dr. Nussbaum was more holistic in his approach, using not only a risk assessment tool, but also personality assessment tests and neurological/cognitive tests along with validity tests. This contrast in approaches may reflect nothing more than the fact that Dr. Klassen is a forensic psychiatrist and Dr. Nussbaum is a psychologist.

[113] I also have some concerns with respect to Dr. Nussbaum’s report. His risk assessment testing seems to be limited in that apart from the psychological type testing he did, his report reflects that the only “risk instrument” he used as the PCL-R-2. This is a concern. Dr. Klassen used more numerous risk assessment tools. Dr. Nussbaum indicated in his evidence what he concluded from the interviews he conducted and his clinical observations were supported by the personality and cognitive testing that he did on Mr. Carrie. I formed the impression from Dr. Nussbaum’s report and from his viva voce evidence that in the end his approach was more of a clinical assessment than that of Dr. Klassen, who relied more on the actuarial risk assessment testing. This causes me some concern as far as Dr. Nussbaum’s report is concerned in that both he and Dr. Klassen agreed that clinical assessment as far as risk assessment is concerned proved unreliable to the point where the risk assessment tools were developed and improved.

[114] In discussing the strengths and weaknesses of both Dr. Klassen and Dr. Nussbaum’s report, it must be borne in mind that at the end of the day, that although the scores of both experts were different on the PCL-R test, the scores for both were high reflecting the strong possibility of re-offending for Mr. Carrie, albeit not re-offending of a sexual nature. Dr. Nussbaum explains this high score on the weight given to static factors in the scoring, ignoring the impact of dynamic factors which would reflect the change that he sees in Mr. Carrie.

[115] I am cognizant of the fact that for the court to designate David Carrie as a dangerous offender it must be proved that there is a “likelihood” of causing death or injury to others or inflicting psychological damage to others through failure in the future to restrain his behaviour. This likelihood of re-offending in the future must be proven by the Crown. The Crown must satisfy the court that there is a likelihood that the accused will be a danger to others, not simply a mere possibility. (R. v. Gibson, 2013 ONSC 538, at par. 19).

[116] By using the word “likelihood” the statute relieves the Crown of its ordinary burden of proof beyond a reasonable doubt, leaving the Crown with the burden of proving this element beyond a balance of probabilities (R. v. H.(J.T.), 2002 NSCA 138, 2002 NS C.A. 138 at par. 84). In addressing this element, the court can consider the offenders treatment prospects, relative degree of seriousness of conduct, extent of moral blameworthiness and the offender themselves. (R. v. H.(J.T.) par. 84 citing R. v. N.(L.) 1999 ABCA 206, 1999 AB C.A. 206).

[117] After a careful examination of the evidence presented by Dr. Klassen and Dr. Nussbaum, I cannot conclude that I prefer one opinion or report over the other. There is merit in the position taken by Dr. Klassen and equally there is merit to the position taken by Dr. Nussbaum. On reviewing this evidence and the totality of the evidence, I cannot conclude that I am satisfied that there is a likelihood that David Carrie will inflict death, injury or severe psychological damage to others in the future by the failure to restrain his behaviour. I simply cannot conclude that this element of the test in section 753.(1)(a)(i) of the Criminal Code of Canada has been established by the Crown. As a consequence of that, I cannot find and declare that David Carrie is a dangerous offender.

Should David Carrie be Declared to be a Long-Term Offender?

[118] Once Mr. Carrie has been found not to be a dangerous offender, the court must consider whether Mr. Carrie should be declared to be a long-term offender. The test for such a declaration is set out in section 753.1(1) of the Criminal Code of Canada. That section is reproduced below with a revision to subparagraph (2) to include only the offence applicable to this offender.

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 re-offend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

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

(a) the offender has been convicted of an offence under section 271 (sexual assault);

(b) the offender

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

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

[119] If the court finds an offender to be a long-term offender it shall

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

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

[120] With respect to the appropriate sentence to be imposed (section 753.1(1)(a)) an appropriate gross sentence would exceed two years although, in my view, an appropriate net sentence to be served would be less than two years given the fact that Mr. Carrie has been in custody since December 15, 2010. With Mr. Carrie receiving a credit of 1.5:1 for his pre-sentence custody, he would receive a credit of 102 months for time served to the date of sentencing.

[121] Based on the report and evidence of Dr. Nussbaum and even based on the report and evidence of Dr. Klassen, the test in section 753.1(1)(c) would be met, in that there is a reasonable possibility of eventual control of the risk in the community. To achieve this end, Dr. Klassen recommended a lengthy long-term supervision order where as Dr. Nussbaum was of the view that a probation order of three years could accomplish the same ends.

[122] With respect to the test set out in section 753.1(1)(b) of the Criminal Code, what is meant by there being “a substantial risk that the offender will re-offend” is amplified in subsection (2). Mr. Carrie meets the requirements of having been convicted of three offences of sexual assault (section 271 Criminal Code of Canada). In addition to a conviction for sexual assault, the offender must be shown to have a pattern of repetitive behaviour (in our case for sexual assault) that shows a likelihood of the offender causing death or injury to other persons or inflicting severe psychological damage on other persons. Subsection 753.1(1)(2)(b)(ii) does not apply to Mr. Carrie in that both Dr. Klassen and Dr. Nussbaum concluded that they could not say that Mr. Carrie is likely to re-offend by way of acts of a sexual nature in the future.

[123] As far as the “likelihood” test is concerned, for the same reasons previously set out in this decision, based on the totality of the evidence that I heard, including the expert evidence, I cannot be satisfied of a likelihood of Mr. Carrie causing death, injury or psychological damage to another person. In this regard I cannot prefer the evidence of Dr. Klassen over the evidence of Dr. Nussbaum and the evidence of Dr. Nussbaum has raised a doubt in my mind as to the likelihood of Mr. Carrie’s criminal conduct in the future.

[124] On the evidence before me I cannot conclude under section 753.1(1)(b) of the Criminal Code of Canada that there is a substantial risk that David Carrie will re-offend. Accordingly, I am not prepared to make a finding and declaration that David Carrie is a long-term offender under the provisions of the Criminal Code of Canada.

[125] Having reached that conclusion, the alternative left for the court is to impose a sentence for Mr. Carrie for the offences for which he has been convicted, namely, the offences of sexual assault, contrary to section 271 of the Criminal Code of Canada, assault with a weapon, contrary to section 267(a) of the Criminal Code of Canada, and assault causing bodily harm, contrary to section 267(b) of the Criminal Code of Canada.

(Section 753.1(6) of the Criminal Code of Canada)

The Sentence David Carrie is to Receive

[126] On March 29, 2012 Mr. Carrie was convicted by a jury of the three offences set out in the previous paragraph. In addition to these three offences, on March 31, 2016, David Carrie plead guilty to two counts of breaching a recognizance by consuming alcohol and by consuming controlled substances, contrary to section 145(3) of the Criminal Code of Canada and breach of a probation order by failing to keep the peace and be of good behaviour, contrary to section 733.1(1) of the Criminal Code of Canada. Counsel for the Crown and defence were in agreement that I deal with these offences globally with the offences which Mr. Carrie was convicted of on March 29, 2012.

[127] Mr. Carrie is now 50 years of age. The facts with respect to the offences that resulted in convictions on March 29, 2012 are referred to earlier in detail. This was a violent sexual assault and assault upon the complainant which was fuelled by alcohol and drug consumption. The breaches arise from this alcohol and drug consumption which were contributing factors in the events which took place on December 13, 2010. These are all aggravating factors as is the criminal record of Mr Carrie entered as Exhibit 36. This criminal record is extensive, spanning most of Mr. Carrie’s adult life. The record includes two previous convictions for sexual assault. In 1991, Mr. Carrie was sentenced to 2 years incarceration for sexual assault and 10 years later in 2001. Mr. Carrie was sentenced to 3 years for sexual assault plus an additional 2 years for forcible confinement and causing bodily harm.

[128] Mr. Carrie’s personal background including his family relationships and childhood history are all previously discussed and documented in detail in this judgment. Mr. Carrie’s childhood is both troubling and tragic. He was the victim of physical and sexual abuse and resided for a period of time at a formidable and impressionable age with a father who can best be described as cruel. Although these personal circumstances may go a long way to explain why Mr. Carrie turned to criminal conduct, they do not condone his actions or provide any excuse for his actions. Mr. Carrie is alone responsible for his actions and his behaviour and to date he has failed miserably with his life, has let down his family, has let down his child and has been anything but a productive member of society.

[129] The evidence that I have heard leads me to believe that the present attitude of Mr. Carrie is one that gives his change and reformation a chance of success. Having said this, the substantive charges of sexual assault, assault with a weapon and assault causing bodily harm require the court not to focus on rehabilitation but rather general and specific deterrence as the paramount factors in the sentence that is imposed on Mr. Carrie. The sentence that Mr. Carrie receives must be sufficient to deter him and likeminded individuals from criminal behaviour and sufficient to reflect society’s abhorrence for such conduct.

[130] A period of incarceration is clearly necessary in this case to satisfy the principles of denunciation and deterrence and the objectives of sentencing as set out in section 718 of the Criminal Code of Canada.

[131] The fundamental duty of the court is to impose a sentence that is just for the offender and for the offence. I have taken into account the pertinent factors in this case, including David Carrie’s age; his criminal record; his background, including his family history; the aggravating and mitigating factors; the guidance provided by the jurisprudence; and the principles of sentencing as set out in section 718 of the Criminal Code of Canada in arriving at a sentence that I believe is fit and just.

[132] Mr. Carrie has been in pre-sentence custody for a period of 68 months, from December 15, 2010 to the date of his sentence on June 29, 2016. Based on the principles set out in R. v. Summers (2014) 2014 SCC 26, 308 C.C.C. (3d) 471, Mr. Carrie is to receive credit of 1.5 days for each day served in pre-sentence custody. That amounts to a credit of 102 months.

[133] Applying the totality principle, my view is that a global sentence of 10.5 years or 126 months is a fit and just sentence for the offences that Mr. Carrie is before the court on. The sentence will be broken down as follows:

(a) Sexual assault – 6 years

(b) Assault with a weapon – 2 years consecutive

(c) Assault causing bodily harm – 1 year consecutive

(d) Breach of recognizance – 6 months consecutive

(e) Breach of recognizance – 6 months consecutive

(f) Breach of probation – 6 months consecutive

[134] With the credit of 102 months for presentence custody served by Mr. Carrie, he is to be sentenced to a net sentence to be served of 24 months to be reduced to 2 years less one day. My intention in imposing this net sentence is that Mr. Carrie serve his remaining sentence in an Ontario Correctional Facility.

[135] Upon his release from custody, David Carrie will be placed on a probation order for a period of 3 years. It is in the terms of this probation order that I hope to maximize the potential for Mr. Carrie to succeed in making the changes to his life that he says he is committed to make. Both Dr. Klassen and Dr. Nussbaum in their reports provided useful guidance in what programs Mr. Carrie could benefit the most from to enhance his chances of success. I have deferred to the views of the experts in crafting the terms for a probation order to take effect upon Mr. Carrie’s release from custody.

[136] Upon his release from custody, David Carrie shall comply with the following terms of a probation order with such terms to be in addition to the terms imposed by statute:

(a) The term of the probation order will be for 36 months, the maximum amount of time permitted under the Criminal Code of Canada;

(b) Within 24 hours of his release from custody, Mr. Carrie is to report to the Probation Office and from that period forward is to be supervised and under the guidance of a probation officer for the duration of the probation order;

(c) Mr. Carrie is to keep the peace and be of good behaviour;

(d) Mr. Carrie is to remain away from Sault Ste. Marie, Ontario and is to reside outside of the District of Algoma for the duration of the probation order at an address approved by his probation officer;

(e) Mr. Carrie is to receive ongoing treatment from a qualified psychologist as arranged by his probation officer with the frequency of such treatment to be determined by the treating psychologist;

(f) Mr. Carrie is to follow the treatment recommendations of his psychologist and probation officer;

(g) Mr. Carrie is to receive treatment and counselling for substance abuse which is to include the abuse of alcohol and non-prescription drugs;

(h) Mr. Carrie is to attend Alcoholics Anonymous meetings on a weekly basis and is to be under the direction of any sponsor arranged by Alcoholics Anonymous;

(i) Mr. Carrie is to receive ongoing cognitive behavioural therapy and counselling as arranged and directed by his psychologist;

(j) Mr. Carrie is to attend counselling and therapy for family violence and for relationship and positive attitudes and conduct toward women as arranged and directed by his psychologist;

(k) Mr. Carrie is to report all intimate relationships with women to his probation officer and to his treating psychologist;

(l) Mr. Carrie shall not cohabit with a female partner during the duration of this probation order;

(m) Mr. Carrie is to refrain from the use of alcohol and from the use of non-prescription drugs;

(n) Mr. Carrie is to receive social skills training and vocational assessment and training as recommended by his psychologist and arranged by his psychologist;

(o) Mr. Carrie is to receive anger management counselling and treatment as recommended by his psychologist and arranged by his psychologist;

(p) Mr. Carrie is not to communicate, directly or indirectly, with Jesse Gagnon-Tegosh;

(q) Mr. Carrie is not to attend within 200 meters of the place of residence, employment or education of Jesse Gagnon-Tegosh.

[137] Although I cannot order it, I am requesting that any counselling or treatment that Mr. Carrie is involved in be directive in nature and on a one-on-one basis wherever possible as there is evidence that Mr. Carrie responds best to this type of intervention. Additionally, although I cannot order it, it would be advisable if Mr. Carrie resided in Sudbury, Ontario during the period of his probation as programs would be available for him there and he would be close in proximity to family members who could assist him.

[138] In addition to the orders referred to above, there will be the following ancillary orders:

(a) A firearm prohibition for life, pursuant to section 109 of the Criminal Code of Canada;

(b) The offender be subject to the Sex Offender Information Registration Act (SOIRA) for life, pursuant to section 490.022(3)(d);

(c) The offender provide his DNA sample to the National DNA Data Bank, pursuant to section 487.051(1) of the Criminal Code of Canada.

Justice E. Gareau

Released: June 29, 2016

CITATION: R. v. Carrie, 2016 ONSC 3721

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DAVID DANIEL CARRIE

REASONS ON DANGEROUS

OFFENDER APPLICATION

Justice E. Gareau

Released: June 29, 2016