R. v. T.W., 2017 ONSC 3669

COURT FILE NO.: 13-4-0000-529

DATE: 20170614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T. W.[1]

Defendant

Allison MacPherson and Martin Sabat, for the Crown

Dennis Lenzin, for the Defendant

HEARD: October 3, 4 and 5, 2016; March 20, 2017

Subject to any further Order of a court of competent jurisdiction, Orders have been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of any complainants and any information that could disclose such identities, and any information that could identify any witness who is under the age of 18 years, or any person who is the subject of a representation, written material or a recording that may constitute child pornography, shall not be published in any document or broadcast or transmitted in any way.

MOLLOY J.:

REASONS FOR SENTENCE

A. INTRODUCTION

[1] The Crown seeks a determination that T.W. is a dangerous offender and that he be sentenced to an indeterminate period of imprisonment.

[2] On November 7, 2014, I convicted T.W. of sexual assault with respect to a crime that occurred on a date between September 1 and October 18, 2000. In 2014, T.W. was also facing other charges, which were separately tried in this Court before Campbell, J. and which resulted in his being convicted of: two counts of possession of child pornography (with offence dates in July, 2012); one count of criminal harassment (with an offence date between May and July, 2012); and one count of breaching a probation order.[2] On those offences, T.W. was sentenced to an effective global sentence of five years, to be followed by a three-year probation order. After crediting the amount of time already served, the time remaining to be served on that sentence as of April 7, 2015 was ten months. That time has now been served. T.W. was not released from prison at that point because of this pending dangerous offender application.

[3] Because the underlying offence was committed in the fall of 2000, the legislative framework in force at that time governs whether T.W. should be designated a dangerous offender.

[4] Dr. Scott Woodside, a forensic psychiatrist, conducted a psychiatric assessment of T.W. and submitted a written report dated September 4, 2015. He also testified in person on this application. Dr. Woodside diagnosed T.W. as suffering from: a sever substance abuse disorder with respect to alcohol; a social anxiety disorder; a personality disorder with many aspects; as well as seven sexual paraphilias (pedohebephilia, sexual sadism, voyeurism, exhibitionism, fetishism, necrophilia and bestiality). In Dr. Woodside’s opinion, T.W. meets a number of the criteria to be determined a dangerous offender. If T.W. were to be released into the community, Dr. Woodside is pessimistic about the prospects of being able to manage the risk that he would reoffend. However, Dr. Woodside provided a list of recommendations for terms of a Long Term Supervision Order (“LTSO”) if I were to find that such a designation was appropriate.

[5] I find Dr. Woodside’s opinion to be persuasive. In my opinion, T.W. meets the test for designation as a dangerous offender. The underlying offence is a sexual assault, which meets the Criminal Code requirement that it be a “serious personal injury” offence. Based on the circumstances of that offence, other offences committed by T.W., and the content of his own writings and collection of pornographic materials, it is clear that T.W. constitutes a threat to the life, safety, and mental well-being of members of the community, most specifically children and women. He has shown a pattern of repetitive behavior that is criminal and injurious to others and is unlikely to restrain such behavior in the future. He has also demonstrated a complete lack of empathy for the victims of his violent and aggressive behavior. He has repeatedly shown a failure to control his sexual impulses and it is highly unlikely he will do so in the future. Given the range and breadth of his criminal sexual preferences, he is likely to cause injury and pain to women and children in the future. Attempts have been made to treat T.W. in the past, without success, and he has been derisive about the process.

[6] Defence counsel concedes that T.W. meets the test for dangerous offender. However, he submits that T.W. has shown restraint in the past and with proper supervision any risk he represents can be effectively managed in the community. I do not agree. I see no reasonable possibility of controlling T.W.’s behavior in the community, short of imposing the kind of terms that would essentially duplicate a prison-type environment outside the prison. In my view T.W. is not suitable to be designated a long-term offender: the risk at this point is simply not assumable. I therefore declare him to be a dangerous offender and sentence him to an indeterminate period of imprisonment.

[7] My reasons for these findings follow.

B. THE STATUTORY FRAMEWORK AND GOVERNING LEGAL PRINCIPLES

[8] A dangerous offender designation requires that an offender be imprisoned for an indeterminate period of time. It is one of the most onerous sentences that can be imposed in our criminal justice system. It does not automatically result in the offender being held in custody for the rest of his natural life, but it can result in that. The Criminal Code provides that the National Parole Board must conduct a review at the expiration of seven years from the date the offender entered custody in order to determine whether the person can be released on parole and, if so, on what conditions. Thereafter, a parole hearing is held every two years. The offender is only released if he no longer presents an unmanageable risk to the community. Statistically, few offenders designated as “dangerous” are released under these provisions, which is perhaps not surprising given the nature of the offenders involved.

[9] Both parties agree that the applicable law is that which was in place at the time of the underlying offence, which was between September 1 and October 18, 2000.[3] Under the applicable regime, the first step is to determine whether or not the offender meets the requirements under the Criminal Code for the dangerous offender designation. There are several alternative routes by which a person could be found to be a dangerous offender. It is only necessary that the requirements under one of those routes be met. If the criteria for designation as a dangerous offender are established, the sentencing judge retains a discretion as to whether to make that declaration. The general principles of sentencing still apply. The offender must not be designated as a dangerous offender if the risk to the public he represents can be controlled by a sentence that is less restrictive of his liberty. One possibility is the long-term offender regime and the sentencing judge must be able to rule out that option before declaring the offender to be dangerous. If the risk to the community can be managed by designating the offender a long-term offender, a determinate sentence must be imposed, which would then be followed by a period of up to 10 years supervision in the community under a LTSO.

[10] The Supreme Court of Canada summarized this process in R. v. Johnson[4] as follows (at para. 44):

…[A] sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. The introduction of the long-term offender provisions expands the range of sentencing options available to a sentencing judge who is satisfied that the dangerous offender criteria have been met. Under the current regime, a sentencing judge is no longer faced with the stark choice between an indeterminate sentence and a determinate sentence. Rather, a sentencing judge may consider the additional possibility that a determinate sentence followed by a period of supervision in the community might adequately protect the public. The result is that some offenders who may have been declared dangerous under the former provisions could benefit from the long-term offender designation available under the current provisions.

[11] In this case, the Crown submits that the there are three statutory bases in the Criminal Code pursuant to which T.W. could be found to be a dangerous offender: s. 753(1)(a)(i); s. 753(1)(a)(ii); and s. 753(1)(b). While taking the position that T.W. meets the requirements in all three sections, the Crown submits that the most apt provision is s. 753(1)(b). All three possible routes to the dangerous offender designation required that the predicate offence is a “serious personal injury offence,” which is clearly met in this case.

[12] Under ss. 753(1)(a)(i) and (ii), the court must further be satisfied that “the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing”,

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

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

[13] The particular provision relied upon by the Crown in this case (ss. 753(1)(b)) is more specifically directed towards sexual offenders. Again, the predicate offence must be a “serious personal injury offence.” In addition, the judge must be satisfied that the offender, by his conduct in any sexual matter, including in respect of the conviction in question, 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.

[14] The defence relies upon the long-term offender provisions at s. 753.1 of the Criminal Code. With a few exceptions not relevant to this case, if a person is found to be a long-term offender, the judge must impose a custodial sentence of at least two years followed by a period of supervision in the community for a period not exceeding ten years.[5]

[15] The long-term offender designation is available for certain categories of offences, including sexual assault, the offence for which T.W. was convicted. Pursuant to s.753.1(1), the court may 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.

[16] In determining whether there is a “substantial risk” that the person will reoffend, the court must be satisfied that the offender has been convicted of one of a list of offences that includes sexual assault (the conviction in this case) and that the offender:

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

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence.[6]

[17] If an offender has met the criteria to be designated a dangerous offender, the first two requirements for long-term offender will almost invariably also be met, i.e. an appropriate determinate sentence would be two years or more and there is a substantial risk that the offender will reoffend.[7] Thus, whether the offender is designated as long-term as opposed to dangerous typically turns on whether there is a “reasonable possibility” of eventually controlling the risk to the community.

[18] The Supreme Court of Canada in Johnson described the purpose of the long-term offender designation as follows (at para. 32):

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

[19] A mere “expression of hope” that an offender’s future actions can be controlled, or that upon completion of treatment and with proper supervision he will not reoffend, is not sufficient to satisfy the requirements of the long-term offender provision. Hope is not enough. There must be evidence that the prospect of control is not merely possible, but “reasonably possible.”[8]

[20] In determining whether an offender can be appropriately supervised in the community, the sentencing judge must consider the availability of resources, as well as the reasonableness of the level of monitoring required in order to protect society. If the risk to the community could only be protected by essentially replicating jail-like conditions under the guise of a LTSO, that is not reasonable. The Ontario Court of Appeal held in R. v. G.L. (at paras. 61-62):[9]

I would make two further observations. First, as I have said, the supervision controls recommended by the trial judge were described by Dr. Klassen as "unusual", "stringent", "severe" and "strict and tight". I agree. The recommended conditions called for almost 24-hour monitoring of G.L. in the community by officials expert in his type of disorders, coupled with G.L.'s residency in a controlled environment, for ten years. Even if the resources necessary to create such a lengthy offender-specific form of community supervision existed, a conclusion that I have already indicated is not supported by the evidence in this case, the overall form of supervision proposed comes close to replicating in the community the form of monitoring and supervision that the state provides in custodial settings.

While I recognize that under s. 134.1(2) of the Corrections and Conditional Release Act, conditions of supervision may include those that are "reasonable and necessary in order to protect society", I do not believe that that statute or the long-term offender regime is intended to virtually replicate jail-like conditions in the community for offenders released from custody. Where restrictive conditions of this type, like those proposed by the trial judge in this case, are necessary to control the risk of reoffending by an offender, and to thereby protect the public, the dangerous offender provisions of the Code are engaged. In other words, protection of the public is paramount.

C. HISTORY OF T.W.’S CRIMINALITY

(i) The Early Years

[21] T.W. was born in October, 1977. He does not have a young offender record. However, from the diaries he created and his interview with Dr. Woodside, it would seem that, even at an early age, he had problems. For the most part, his non-sexual criminal conduct involved petty thefts and setting things on fire without doing significant damage. However, there are numerous entries in his diaries, compiled after-the-fact as an adult, in which he wrote about sexually deviant acts of voyeurism, exhibitionism and fantasizing rape from as young as seven or eight years old.

[22] From as early as five years old he was dressing in the dirty underwear of his mother and sister and searching in the bathroom for items with their menstrual blood for him to sniff.

[23] At some point before the age of 12, his mother left him in the car with a girl while she and her friend went into a store. T.W. wrote that he unzipped his pants and asked the girl to touch his penis. When she refused, he continued to fondle his own penis, in front of the girl, until his mother returned to the car.

[24] He also wrote of another occasion, also before the age of 12, when he and his friends held down their “girlfriends” and pulled down their clothing to look at their genitalia. His description of that in one of his journals states:[10]

I remember as a kid, still living in Newfoundland, me and my friends would hold down our girlfriends and pull their pants down to see their hairy cunts and pull up their T-shirts to see their juicey (sic) tits, and I remember that I ran home to jerk off, cause their kicking and screaming excited me. Even to this day, I still masterbate (sic) about it (doing it alone). Just that it’s other sluts that I’m doing it to.

[25] T.W. wrote in his diary, and also reported to psychiatrists, that he engaged in bestiality with the family dog from the age of 10 until the dog died of cancer when T.W. was 15. According to T.W., this happened daily in his youth and involved inducing the dog to lick his testicles and erect penis until he ejaculated.[11] In his first diary, T.W. wrote that after that dog died, he did not do this with any other animal and that he regretted doing what he did. However, in a report dated January 30, 2012, psychiatrist Dr. Brad Booth reported that T.W. told him he had “recurrent fantasies and sexual behaviours involving animals.” T.W. reported at that time that this started when he was 9 or 10 years old and continued until the age of 29 and involved him performing oral sex on female dogs as well as having the dogs lick him. He also reported recurring fantasies about watching women have sex with animals, a report which is confirmed by numerous entries in his journals.

[26] T.W. described a number of occasions when he exposed himself in public or to girls privately, including some where he was caught, but he was never charged. When he was 13, a female cousin was at his family’s home overnight. He wrote about stripping naked and entering the room where she was sleeping, masturbating for a while and then touching her breasts through her clothes. He wrote that he was hoping she would wake up, but that she did not, so he sat on an adjacent love seat and masturbated while watching her.[12] Similarly, he wrote that when he was 16 he entered his parents’ room on many occasions while they were sleeping and masturbated while staring at his mother’s exposed body.

[27] In one of his journal entries, written in July 2008, T.W. referred to fantasizing constantly about having sex with children and stated:[13]

And I also admit commiting (sic) sexual acts, truth is: thats (sic) why my society mother despises me around children, cause she caught me once groping a young girl between her legs, but she’s kept it a secret, for that, I would have to say…thank you.

[28] On that same page, T.W. referred to another incident of sexual interaction with a child as follows (although it must be noted that it is unclear from this entry how old T.W. was at the time):

Memories: I once made a 9-10 year old jerk me off while watching the infamous sex tape of Pam and Tommy-Lee

[29] Also during his early years, T.W. developed a fascination with pornography and serial killers, an absorption that carried through to his adult life.

(ii) First Criminal Charge: Criminal Harassment 2000

[30] The first criminal charge laid against T.W. was in June, 2000 and related to his criminal harassment of a young clerk (H.B.) at a local copy centre he frequented. The prelude to the laying of the charge is relevant and compelling.

[31] In 1995, T.W. met H.T.[14] on an internet chat line. At the time, T.W. was an 18-year-old unemployed high school dropout and was living in a basement apartment of his father’s home in Scarborough.[15] Ms. T was 24 years old, had recently graduated from university with a Bachelor’s degree in Fine Arts, and was employed as a painter in ceramics studio. They began dating and decided to live together in the Scarborough basement apartment. Ms. T was aware of T.W.’s obsession with serial killers, which she described in her evidence as being a “hobby.” In addition to having a large collection of photographs, movies and documentaries about serial killers, T.W. made scrapbooks about them.

[32] In compiling the scrapbooks, T.W. would gather material, including photographs from various sources, clippings, and things downloaded from the internet. He would tape these onto sheets of paper, interspersed with his own thoughts and comments. He would then take the completed pages to a photocopying shop so that the finished product looked smooth, with no jagged edges. Those scrapbooks were later seized, along with other material, and were part of the evidence before Campbell J. on the criminal charges resulting in convictions for possession of child pornography.

[33] Ms. T was aware of T.W.’s interest in this subject matter and assisted T.W. in some ways. For example, she watched movies and videos with him and if she saw an article on the topic, would clip it and give it to him. For Christmas one year, she gave him a gift that she had hand-made for him – a doll in the image of infamous serial killer Jeffrey Dahmer. However, Ms. T did not share his interest in such things and insisted that he take down a photograph of Paul Bernardo adorning the wall of T.W.’s living room before she would move into the apartment. She also had no role in the preparation of the scrapbooks themselves and had not initially seen the finished product.

[34] In 1998, Ms. T and T.W. moved to Niagara Falls together, where they opened a store selling items about witchcraft and related matters. During this time, T.W. continued to work on his scrapbooks. In June 2000, T.W.’s mother came to Niagara Falls for a visit. While T.W. was taking his mother on a tour of the area, Ms. T noticed that T.W. had left his current scrapbook on top of his bureau rather than in a drawer. Curious, she looked inside. She looked at other things inside the bureau drawers. Ms. T was alarmed by the violent and pornographic nature of what she saw. When T.W. and his mother returned, Ms. T showed the mother what she had found and asked her to take T.W. back to Toronto with her as she no longer felt safe around him. T.W.’s mother was also alarmed. The two women decided to call the police. They were motivated in part by their belief that T.W. needed psychiatric treatment and would get help if taken into custody. When the officers arrived, T.W. was placed under arrest and one volume of his scrapbooks was taken by the police.

[35] Ms. T was aware that T.W. sometimes obsessed about women. Previously, he had been obsessed with certain female celebrities, and also with a girl named “M”, who was a person from his past. However, while in Niagara Falls, Ms. T noticed that T.W. had become obsessed with a young woman who worked at the photocopy centre where he would make copies of material for his serial killer scrapbook. Ms. T was troubled by the fact that this obsession was current and local. She became even more concerned when she realized that T.W. had written things about this young woman in his journals and she drew this to the attention of the police.

[36] Following his arrest in 2000, T.W. was charged with criminal harassment of H.B., the clerk who worked at the copy centre. H.B. was in her early 20s at the time. Some of the particulars of his harassment of H.B. are set out in the decision of Campbell J. dated August 1, 2014 as follows (at para. 11):[16]

The materials in this scrapbook also included “love letters” and other notes revealing the accused’s obsession with the complainant and another young woman. More specifically:

• In one note dated March 29, 2000, the accused described the complainant as his “soulmate” and discussed why he wanted his “precious” H.B. “in [his] life forever.”

• In a note dated April 1, 2000, the accused detailed his “first time talking” to the complainant. In this note the accused explained that he had contacted her by phone at work. When he asked her if she had a boyfriend, she replied: “Yes, unfortunately I do.” When he asked if he could “call [her] sometime,” she hung up the phone without responding. The accused wrote that he felt as if his “heart just stopped beating,” but he vowed that he was “not giving up” on becoming her “lover.”

• In a note dated April 10, 2000, the accused reflected on his feelings about the complainant as it had been “10 days” since he had called her, concluding that he could not be mad at her, she was “to[o] beautiful to hate,” and that he still loved her and “always will,” stating that H.B. “will be mine to hold and love forever.”

• In a note dated April 18, 2000, however, the accused expressed his knowledge that the complainant was not the one for him, as he “finally came to [his] senses,” and realized that his true love was the other young woman he had been obsessing over.

• In subsequent notes dated in April and May of 2000, the accused continued to focus on the other young woman.

[37] H.B. remembered T.W. coming into the copy centre a number of times with Ms. T and also remembered the phone call from a man asking if she had a boyfriend, although she did not know it was T.W. Although T.W.’s writings indicate that he had been stalking and obsessing about H.B., she had no knowledge of it. Ultimately, in January 2001, the criminal harassment charge was resolved by T.W. entering into a peace bond for a period of 12 months requiring him to keep the peace and be of good behavior and including terms that he: (1) have “no contact directly or indirectly” with the complainant; (2) “not attend” at the complainant’s residence, her school, or any place of her employment; (3) report to a named police officer in the “offender management unit”; (4) attend such counseling as may be deemed appropriate by the supervising police officer; and (5) abstain from acquiring or possessing any firearm, cross-bow, prohibited or restricted weapon or device, ammunition, or explosive substance. The criminal harassment charge was withdrawn and the serial killer scrapbook was returned to T.W.

(iii) Sexual Assault of H.T.: Fall, 2000

[38] After his arrest on the criminal harassment charge, T.W. was granted bail, one of the terms being that he reside with his sister and her husband in Toronto. Ms. T remained in touch with T.W., visiting him in jail and at his sister’s home when he was on bail. It was on one of these occasions when Ms. T was visiting T.W. at his sister’s home that T.W sexually assaulted her. Ms. T. was still residing in Niagara Falls and stayed overnight at the sister’s home. T.W. usually slept on the couch in the living room, but when Ms. T stayed over, they would sleep on a quilt on the living room floor. On the occasion in question, Ms. T and T.W. were engaged in consensual vaginal intercourse, when T.W. began anally penetrating her. She told him to stop and he kept going anyway, notwithstanding that she was crying, and indeed sobbing, before he had finished.

[39] At the time of this incident, Ms. T did not report it to the police. However, on May 4, 2001, Niagara police conducted a 3 ½ hour video-taped interview of Ms. T with respect to T.W., in the course of which Ms. T disclosed the sexual assault that had happened in the fall of 2000. Those officers took no further steps with respect to the sexual assault.

[40] In 2012, Toronto police officers were investigating a charge that T.W. had begun again to criminally harass H.B., in the course of which they reviewed the Niagara police file from the former harassment charge in 2000. They decided to re-interview Ms. T about the sexual assault she had reported. As a result of that interview, T.W. was charged in 2012 with the sexual assault that had occurred in the fall of 2000. The trial proceeded before me, without a jury. T.W. did not testify. I convicted him of sexual assault for oral reasons delivered on November 7, 2014.

[41] It is important to note that this offence was committed while T.W. was on bail.

(iv) Sexual Assault of Niece: August, 2010

[42] On the night of August 20, 2010, T.W. was at his sister’s home for a family gathering. Later in the evening, most of the guests left. Remaining were: T.W.’s sister (“E”); E’s boyfriend; E’s 14 year-old-daughter (“S”); and T.W. At about 1:00 a.m., E and her boyfriend went to bed. S was in the living room with her uncle T.W. Initially, S was downloading music on her computer. Then, T.W. and S watched pornography on the computer. S left to use the bathroom. T.W. followed her and proceeded to have oral and vaginal intercourse with her. S was a virgin before that assault. The next day, S told her mother what had happened. Her mother called the police. T.W. was arrested and charged with, inter alia, sexual assault and invitation to sexual touching of a person under the age of 16. He pleaded guilty to both counts on October 12, 2010 and, on a joint submission, was sentenced to two years less a day to be followed by three years’ probation. It was understood at the time of the sentencing that T.W. would be serving his sentence at the St. Lawrence Treatment Centre where he would receive treatment for his sexual deviance as well as alcohol abuse. Included in the terms of the probation order were provisions that he have no unsupervised contact with anyone under the age of 16 and that he continue rehabilitative treatment programs. There was also an order that he would be placed on the Sexual Offender Registry for a period of 20 years.

(v) Further Criminal Harassment of H.B.: 2012

[43] T.W. was released from custody and started his period of probation on February 12, 2012.

[44] By May 12, 2012, he had already tracked down H.B., who now lived in a different city and was working at a women’s shelter. He called her work number late at night and left a voice message, using her first name, as follows: “I’m still waiting for you Princess [H]. Shall you accept?”[17]

[45] In July, after H.B. returned from a vacation, she found four more voice messages from T.W. as follows:[18]

• “Uncover your eyes. Do our souls collide? Invite me in.”

• “Please Princess [H.B.] I’m very proud of you since [her job in the copy centre] and now a women’s shelter. I love you and always will. I love you.”

• “You’ve come a long way Princess [H.B.]. I’m very proud of you since [her job in the copy centre] and now a women’s shelter. I love you and always will. I love you.”

• “Good evening. If you know we’re meant to be one call me on Friday between 7 and eleven at [his seven-digit cell phone number]. You know who I am, Princess [H.B.].”

[46] T.W. was arrested on July 10, 2012 and charged with criminal harassment and breach of his probation order. Search warrants were issued for his apartment and for his mother’s home. Numerous documents, photographs and binders of material were seized.

[47] From the material seized pursuant to the search warrant, it is apparent that T.W.’s obsession for H.B. had continued over the prior 11 years, from the time he entered into the peace bond in 2001 to the phone calls he placed in 2012. The material he had collected included contact information for H.B. and photographs of her that he managed to obtain on the internet, even though she had been cautious over the years not to have her photograph or personal information appear anywhere. There are multiple entries in T.W.’s journals about his “love” for H.B. every year from 2000 through to 2010 (when he went to jail) and commencing again in 2011 when he was released from jail. In these journal entries, T.W. refers to H.B. as his “princess” and as his “beautiful wife” and vows his eternal love for her.[19]

[48] Particularly unnerving in the context of this application before me are the following excerpts from an entry that was written at some point between March 31, 2007 and April 17, 2007:[20]

When I stare at you, the only thing that appears in my mind is: what shall you feel like lifeless in my bed.

I am blessed … It would be my pleasure to walk inside a funeral home and see my 2 beautiful wives [one of whom was H.B.] laying stiffless (sic) inside a casket, as I ply open their eye lids and kneel down before them, as I embrace my lips onto theirs (sic) as they both awake just like Snow White, what an honour it shall be. We shall never be apart….

I kiss my daughters good-bye every day before I leave for work [referring to three Barbie dolls that he played with, gave names to, and pretended were real], and if I came home and they weren’t there, the only thing that I shall think and do is: suicide.

It makes me wonder if my 2 beautiful wives [one being H.B.] think about me in this sick society

[49] Equally troubling is a poem written by T.W. to H.B. on April 17, 2011, which reads in part:[21]

[H], uncover your eyes. Stare as our Souls collide.

[H], invite me in embrace the warmth that we spread

Your beauty, endless kiss

Caress the hand, I shall defend

Touches, burning deep

Don’t let go, I beg for more

I hunger for your Breathe

You are My Dream of fire

Sweat drips from your breasts

Aching Body I lie beside

[H], I bleed and crawl for you. My bloodlust Shall never expire

[H], I Swear It’s you. You’re the Angel that I feed upon.

[50] Based on this, and other clear evidence referred to in his written decision, Campbell J. found T.W. guilty of criminal harassment.

(vi) Possession of Child Pornography: July, 2012

[51] During the execution of the search warrant following T.W.’s arrest for criminal harassment in June, 2012, the police seized a number of items that then became the subject of two charges of possession of child pornography. One charge related to a small number of photographs found in T.W.’s apartment; the second related to three binders of material, referred to as the Mopboy Diaries, comprising 490 pages of photographs of women and girls with personal journal entries handwritten by T.W. “Mopboy” is an alter-ego of T.W. The Mopboy Diaries are also part of the evidence before me on this dangerous offender application.

[52] Campbell J. found that a number of the individual photographs constituted child pornography and convicted T.W. on Count 1 of the indictment.[22] One of the documents was a sheet of paper to which had been taped three photographs of girls approximately 9 to 11 years old, wearing skimpy underwear and posed provocatively to display buttocks and crotches. On this paper, T.W. had written, “Sluts lie to themselves, let alone others.”[23] Another item found to be child pornography was a large framed photograph T.W. had on the wall of his bathroom, which appeared to have been printed from a pornographic internet site and which depicted a girl of approximately 12 to 14, completely naked and provocatively posed.[24]

[53] Campbell J. also convicted T.W. of possession of child pornography in relation to the Mopboy Diaries. The three journals were obviously constructed over a period of years. The style is consistent throughout the three volumes – photographs of young women and girls, which have been cut out from some other source and taped in place, interspersed with handwritten entries by T.W., sometimes commenting on the photos and sometimes reminiscing about events in his life or simply talking about his passions. The pages were photocopied after they were assembled and then placed inside plastic sleeves and put in three-ring binders. The first volume starts in 1997, when T.W. would have been 20 years old. T.W. was still working on the third journal at the time of his arrest in 2012. The first page of Volume Three is a title page reading “Secrets of a Mopboy, Book 3, ‘My Hunger Remains’” and would appear to have been started upon his release from prison and while still on probation in respect of the charge of sexually assaulting his niece. There were a number of pages lying on T.W.’s desk that were still in rough format, but which were obviously intended to be photocopied and added to the binder, and which he was clearly in the process of working on at the time of his arrest.

[54] Campbell J. found that significant portions of the Mopboy Diaries constituted child pornography because: (1) some of the photographs included were sexually graphic pictures of girls under the age of 18; and (2) some of the handwritten notes by T.W. were sexually graphic and advocated the sexual exploitation of children. Campbell J. wrote (at paras. 58-59):

Ultimately, I am driven to the conclusion that significant portions of the accused’s three-volume journal constitute child pornography. This finding is based upon the fact that significant portions of the journal send the message, both directly and implicitly, that young teenaged females, between the ages of 13 and 17, inclusive: (1) want and enjoy all manner of sexual activities with adults; (2) deliberately dress provocatively so as to entice adults and to signal their interest in, and availability for, sexual activities; and (3) want to be raped, enjoy being raped, and deserve to be raped. This conclusion is also based upon my opinion that portions of the journal suggest that sexual activities with young females, whether consensual or otherwise, is worth any potential punishment that might eventually be inflicted upon adults by society, and can and should be pursued by adult males. In short, the journal encourages, expressly and implicitly, criminal sexual activity. See: R. v. Beattie, at paras. 19-25.

Many entries in the accused’s journal send this same message in relation to adult females who are 18 years of age and older. Some entries in the journal send this same message in relation to children who are younger than 13 years of age. But I am satisfied beyond a reasonable doubt that significant portions of the accused’s journal send this message in relation to teenaged females who are between 13 and 17 years of age inclusive. The accused’s habitual use of generic descriptions such as “teenage slut,” combined with his focused interest on young females, and his frequent discussions of sexual activities, real and/or imagined, with young females clearly within that illegal age range, lead me to conclude that significant portions of the accused’s journal constitute “child pornography.”

(vii) Breach of Probation Order: 2012

[55] T.W. was also convicted in 2012 of breaching the term of his probation order that required him to keep the peace and be of good behavior. That conviction was based on the criminal offences he committed while on probation as referred to above, rather than on a separate incident of breach.

[56] It is significant, however, that T.W. resumed criminal behavior almost immediately after being released from prison, both with respect to stalking H.B. and in continuing to possess and create child pornography.

D. OTHER EVIDENCE

[57] Significant portions of the Mopboy Diaries are referred to in the two decisions of Campbell J., both in reference to the criminal harassment of H.B. and the possession of child pornography. Those portions are directly relevant to the issue of dangerousness in this application. There are also many other aspects of those journals that are relevant to the determination of whether T.W. is a dangerous offender. Likewise, there are entries in the serial killer binders that are relevant.

(i)The Serial Killer Binders

[58] There are three serial killer binders (comprising a total of 329 pages), each binder being dedicated to a particular serial killer: Ted Bundy; Jeffrey Dahmer; and Albert DeSalvo (the “Boston Strangler”). These compilations go far beyond an interest in the personality of a serial killer or what motivates such men. These are actual homages to the serial killers, showing a level of adulation that betrays a desire to emulate the monstrous deeds of these “hero” figures. Underlying everything is a level of misogyny that is staggering.

(a) Volume 1

[59] The first of the three binders is primarily dedicated to Jeffrey Dahmer.[25] The first page bears the title “Serial Killer Gods 1991-2000,” the dates being a likely reference to when they were created by T.W. as their contents relate to many events prior to 1991. The next few pages contain photographs of and a general tribute to the three serial killers: Dahmer, Bundy, and DeSalvo.

[60] The vast majority of the first volume is a collection of newspaper and magazine articles about Jeffrey Dahmer, his victims, and his death in prison – for the most part without pornographic images or personal commentary by T.W. One significant exception is a verse that is handwritten by T.W.:[26]

Fucked my fist

Jacked my willy

Can’t get laid

Makes me silly

It ain’t aids

It ain’t trauma

Girls think I look like

Jeffrey Dahmer!

[61] The collection of material about Dahmer focusses significantly on necrophilia and the fact that Dahmer ate the flesh of his victims. The penultimate page of the binder is a tribute to Dahmer in verse entitled “Immortal.” The final page is entitled “What I Loved About Jeffrey Dahmer.” T.W. describes having been fascinated by Dahmer since seeing information about him on the news in 1991 (when T.W. would have been 13 or 14 years old). He then wrote the following:[27]

But the #1 reason I love “Jeffrey Dahmer” is what he did after his victims were dead, such as having sex with their corpse, eating a bicep of one of his victims, so that victim will be a part of him forever, dismembering and collecting the skulls/bones as decoration. If this doesn’t declare his as a god, “I don’t know what does” Rest in peace Jeff. Love [T.W.].

[62] T.W.’s interest in Dahmer is not merely academic. Dr. Woodside identified necrophilia as one of the many sexual paraphilias from which T.W. suffers. There are many examples of T.W.’s own writings in his Mopboy Diaries in which he refers to his desire to have sex with corpses and also to eat them. In Volume 2 of the Mopboy Diaries, T.W. refers to tangible efforts he made to have access to dead bodies so that he could satisfy these urges. He wrote:[28]

It sure makes me wonder what happens behind funeral locked doors cause I know for a fact that I would be fondling/fucking the female corpses, (the owners would be sick if they didn’t). I sent out so many resumes in the past, but they weren’t interested most likely because funeral homes are a family business.

(b) Volume 2

[63] As is the case with the Jeffrey Dahmer volume, the first sixteen pages of the Ted Bundy binder[29] consists primarily of text clipped from magazine articles and photographs from newspapers and magazines of Ted Bundy and his victims. At page 17 there is a photograph of mostly nude young woman along with three headings: “another slutty object for Ted;” “CHOKE HER TO DEATH” and “yummy.”

[64] After another few pages of articles and information about Ted Bundy, T.W. then adds a comment of his own: “Ted Bundy was a sexual predator, and just like every other serial killer – their needs were more important than a human life – and I don’t feel sorry for none (sic) of Ted’s victims, because I think they deserved it.”[30]

[65] The middle portion of the binder[31] sinks into further depravity. Page after page is covered in multiple photographs of women (some of whom appear to be teenagers), undergoing all manner of torture, pain, bondage, mutilation, and some of them apparently dead. In between these vile images, T.W. has added his own commentary. The following are but a sampling:

I’m gonna put you sluts through pain as much as you put me through; Creep up behind the slut and strangle her; I’m gonna get so wet as I watch the terror in all these sluts eyes[32]

I am not a mean guy, I’m very pleasant, even though I’m very shy, but when I come across girls like yourselves, voices in my head are telling me that sluts like you shouldn’t exist in my world (any world as a matter of fact)[33]

make the bitch scream[34]

make them feel as much pain as I do[35]

murder the young virgins[36]

fuck her in her tight teenage ass (this being a comment on a girl who looks to be about 15)[37]

let me release all my anger on these sluts[38]

Most beautiful girls wouldn’t give you the time of day, so what did Ted do, he basically kidnapped them, brought them to a deserted area, and he did whatever many men dreamed about doing. He had his way with them, and these people say we should feel sorry for these girls. My question is why?[39]

I believe beautiful sex objects should get murdered because most of them just laugh and tease you, believing that they are all that a everyone else is trash, so I have no pity or remorse when I turn on the t.v. and hear that a beautiful girl got raped or killed or both last night.[40]

[66] The rest of the binder contains more articles and clippings about Ted Bundy’s crimes and about his execution, again interspersed with occasional pornographic pictures of women and T.W.’s personal comments. The last nine pages of the binder revert again to T.W.’s personal thoughts, written around images of naked women, including comments about his admiration for what Ted Bundy did. Particularly chilling is page 139 which contains numerous vile comments including the following:

Don’t blame the serial killer for your wife/daughters death, it was sluts like them who provoked in the first place.

Most teenagers these days have what’s coming to them, just look how slutty they dress, they’re mostly naked besides their private parts, even most of that is exposed, if they don’t want to be raped or murdered cover all your body up, maybe then this world would be a safer place to live in.

I’m gonna rape your slutty corpse for the next two weeks.

[67] The binder closes with T.W.’s tribute to Ted Bundy, under the heading “What I loved about Ted Bundy” and ends with the following:

But the #1 reason I love Ted Bundy is he hunted and killed cute objects, his victims were young and beautiful girls, and in my opinion, they all died for a good cause – for Ted’s pleasure – Rest in peace Ted, Love [T.W.][41]

[68] To put this veneration of Bundy in context, it should be noted, as is discussed in more detail below, that much of the content of the Mopboy Diaries centres on the rape and murder of young women and girls. Also, when interviewed by Dr. Woodside, T.W. claimed that none of his fantasies were about inflicting pain. When asked how he would could carry out a murder without pain he replied, “by strangling. Painful is killing by stabbing.”[42]

(c) Volume 3

[69] The third binder in the serial killer series, dedicated to Albert DeSalvo (the Boston Strangler), is similar in nature to the Bundy volume. Again, the binder starts with informational background and photographs about DeSalvo, his crimes and his victims, clipped from magazine or internet articles.[43] This is followed by graphic photographs of murdered women[44] and then by pornographic images of women, some of whom are tied up, or being tortured and killed, with T.W.’s commentary in the margins.[45] His comments include:

Strangle the pretty teen (accompanying a photograph of a distressed young woman appearing to be strangled with a rope in a pair of man’s hands)[46]

Please strangle me (beside the nude photo of a young woman)[47]

rape the blonde; put some terror in her eyes; tear the fucking clothes off her; you won’t be beautiful when I finish with you (around a photo of a young blonde woman, gagged and bound with her dress partly torn off)[48]

[70] Particularly troubling, and illustrative of T.W.’s preference for children and teenagers, is the following passage from p. 274:

I keep asking myself, why did DeSalvo rape and murder senior citizens, wouldn’t a young slut be more peasureable (sic) why would anyone even wanna rape a senior citizen. I cannot imagine sticking my cock inside a senior citizen’s cunt, plus why kill a senior citizen when you know that they’re gonna die anyway. (That’s my only turn-off about DeSalvo)

[71] After the section of pornography with commentary, the binder returns to articles and clippings, with more illustrations with pornographic images of women. As with the other two binders, this one closes with a tribute entitled “What I Loved About Albert DeSalvo”[49] and concludes with:

But the #1 reason I loved Mr. DeSalvo is – he kept it nice and clean. He strangled his victims, blood was’nt (sic) flying every where making a mess, {I hate that} and showing his soft spot on how nice he was, he would pose his victims in a strange way before leaving, {how nice can a madman be, he was so sweet} Rest in peace Al. Love [T.W.]

[72] At various other points in the binder, T.W. makes reference to DeSalvo being extremely neat and tidy. Notably, as described by his former girlfriend, T.W. shares this personality trait with DeSalvo, and it is clear T.W. identifies with DeSalvo’s tidiness.

(ii)The Mopboy Diaries

[73] As gruesome and disturbing as the Serial Killer Binders are, the Mopboy Diaries are worse. These three volumes are largely biographical in text and almost purely pornographic in imagery. Each page is covered in pornographic images of young women and teenagers, along with musings by T.W., sometimes about his dreams and fantasies, and sometimes describing things he has done in his past. He often refers to wanting to murder women and have sex with their dead bodies.

[74] Throughout the diaries, T.W. makes many references to his three daughters. These entries are not obscene or misogynist, and are unique in that respect. However, the three daughters (named Victoria, Rain and Destiny) are not real. They are dolls, which T.W. dressed up and played with as if they were real. Also in the diaries there are frequent references to T.W.’s two “beloved wives.” Although these are references to real people (the two women he had obsessions with – “M” and H.B.), T.W. never had “real” relationships with either of them.

(a) Mopboy Volume 1: “Secrets of a Mopboy”

[75] The first volume of the Mopboy Diaries starts with a title page (“Secrets of a Mopboy), a few introductory pages (including a second title page “Confessions of a Mopboy”) and then a number of pages of collages of photographs of female celebrities.[50] For the next 202 pages, the diary is devoted to multiple images per page of pornographic images, some of young adult women and some of girls who look to be in their teens, all posed provocatively, sometimes engaged in various sexual acts. Surrounding these images are T.W.’s writings, sometimes about his childhood, sometimes about crimes he has committed, sometimes about crimes he wants to commit, and most often just filthy, misogynist statements about the images on those pages.

[76] This section of pornographic content begins with a photograph of a teenager who looks to be between 13 and 17, clipped from a magazine called “Come of Age” with a subtitle “Anything younger would be a crime.”[51] On this page, T.W. has handwritten, “‘Just Coming of Age’ is my favourite adult magazine because it features so many teenage sluts, who in my opinion, deserve to fade away … Every fucking last one of these sluts in this magazine belongs in ‘Samhain.’” There are many references to “Samhain” in T.W.’s writings. It is apparently a fantasy place where he believes young “sluts” and “vermin” will go after they die.

[77] The next page of this section[52] contains a photograph of another young girl, who seems to be around 14 or 15 years old. T.W.’s lengthy writing on this page starts with “If I was to become a serial killer in the future, I would love to fulfill my fantasies.” He then describes in some detail sexual assaults he would like to inflict on women wearing: overalls without a shirt; fishnets (red and black); and jogging suits (grey bra/shorts). He then finishes with, “And as usual, the only thing I would keep from the sluts as souvenirs are their panties, cause I know that I would be masterbating (sic) constantly to them, panties to me means eternal sniffing.” Many of T.W.’s writings refer to this fetish about women’s underwear, and he reports at various times that this began when he was five or six years old when he started sniffing the underwear and menstrual pads of his mother and sister.[53]

[78] Throughout Volume 1, T.W. makes numerous references to wanting to rape young women or girls. Women and girls are referred to in derogatory terms, typically as “sluts’ or “vermin.” These kinds of references are simply too numerous to list; they are everywhere. He reports in his journal that he has had such fantasies from as early as eight or eleven years old.[54] Some of his descriptions of these rape fantasies are very detailed. Sometimes they include murder and necrophilia. For example, on a page with a young girl wearing a bikini[55] he wrote a poem entitled “A Taste of Innocence” which reads in part: “Inhaling the smell of her burning flesh; As I devour her luscious uterus; No longer disdained by this young bitch; As her blood drips from my mouth.” Across the abdomen of the young woman in the photo, he wrote, “Let me nibble on your uterus”. Above the photo, he added a handwritten caption: “I can just imagine how much pleasure I would receive by fondling her corpse.”

[79] Later in Volume 1[56] he reported that, “Not a day that goes by do I not fantasize about murdering a teenage slut.” He then wrote that he has a similar fantasy every day of having his basement windows boarded up with “a few decaying bitches spread out on the floor in the hallway, and in my bedroom their (sic) are always only 3 breathing sluts inside, 2 of them are shackled to the wall with tears running down their cheeks and the other slut is shackled to the floor lying on a dirty mattress below the window, waiting to be raped.” He then added as a kind of postscript in parentheses and smaller font, “I don’t consider myself mentally sick, even though others may, cause I believe everybody has similar fantasies.”

[80] In Volume 1 (as well as the later diaries), T.W. advocates raping young girls, and blames the girls themselves for being raped, saying, e.g. that when they are raped they “get what they deserved.”[57] He justifies this by characterizing them as sluts or whores. For example, he wrote at one point in Volume 1, “In my eyes, most girls are sluts when they reach the age of 13.”[58] In his decision convicting T.W. for possession of child pornography, Campbell J. describes some of these entries as follows:[59]

On countless pages of his journal the accused declares, in clear and unmistakable terms, that all such teenage females should be sexually molested in one way or another. This offensive sentiment is expressed by the accused in a wide variety of ways. The focus of many of his misogynistic comments is upon the youth of these females, suggesting they are “So Young [and] So Sweet [but] Not so Innocent,” and that they “love to be raped.” Other comments by the accused suggest that young women are eager to engage in sexual intercourse while they are still in their “teens.” He sometimes refers to them as being “sex crazed teens,” or “horny little sluts.”

[81] Many of the entries display frightened women in pain or tied up. Campbell J. described some portions of Volume 1 portraying such images as follows:[60]

The journal also contains pages displaying images of frightened young women, naked or partially naked, in various states of bondage. In one image the male captor is displaying a knife. The accompanying commentary by the accused has a violent theme and includes statements suggesting that young women should be raped, abused, and butchered. One image has the caption “The Art of Raping.” In one image a woman in handcuffs is being dragged by her hair. On another page the accused suggests that he prefers “teenage sluts” when they are “bound and gagged.”

[82] In his writings, T.W. made a number of references to concrete steps he would take to ensure he would not be caught after acting out his sadistic rape/murder fantasies, as follows:

• not leaving any cigarette butts behind, but rather keeping them in his pocket until he gets home;[61]

• going out of town to get “the slutty disease” referring to his victims and always paying cash so as not to leave a credit card receipt with information on it;[62]

• if raping and not murdering, taping his own mouth to prevent saying anything so that the victim could later identify his voice to the police;[63]

• if murdering, never using the same weapon twice and disposing of it because blood stains and the “slut’s hair” could still be there after washing;[64]

• after raping a murdering a slut, wash his clothes, sweep the floor, vacuum and then throw away the vacuum bags “because the sluts (sic) hair would most likely be on my cloths (sic) and on the floor;”[65]

• never throw the victim’s belongings in the garbage;[66]

• never wear the same size sneakers that he usually wears, always wearing sneakers a couple of sizes larger;[67]

• “I would never dispose the remains of my victims by flushing them down the toilet, cause if the toilet clugs (sic), and I can’t unclug (sic) it, I would have to call a plumber and what the hell am I suppose (sic) to say when he finds human remains?”[68]

[83] Pages 557-597 of Volume 1 contain various writings by T.W. involving his obsession with a girl named M, whom he had met over a decade earlier while he was working at a community centre. She was 13 years old at the time. They never had any kind of a relationship. However, T.W. fantasized about her being his wife for many, many years thereafter.

(b) Mopboy Volume 2: “The Jealousy Ends…”

[84] T.W. appears to have started Volume 2 of the Mopboy Diaries[69] in late 2002 and finished it in August 2010, at about the time he was arrested for sexually assaulting his niece. The title page reads, “Secrets of a Mopboy, Book 2, The Jealousy Ends…”

[85] The tone is set at the outset: one page with large capital letters in the centre stating “Everyday I fantasize about fucking a decaying slutty corpse and I have no explaination (sic) why”; and on the opposite page, with similar printing, similarly placed, “Society means nothing to me but a hunting ground.”[70] Both pages contain pornographic images of nude or semi-nude young women and other salacious writings by T.W.

[86] There are more references in this volume to T.W. fantasizing rape and murder of actual teenage girls in his community. There are numerous references throughout the journal about T.W. walking around the community at night watching women and young girls, often through windows, and fantasizing raping them.[71] He was particularly fixated on a teenage girl who would walk past his apartment and on a young girl who delivered newspapers.[72] This description at p. 601 (dated November 18, 2002) is a typical example:

Today, I seen (sic) such a delicious sight through my basement window. A young slut was walking home from school, (same slut that I mentioned earlier). She looks 14 years old or so and she was wearing a tight short black skirt showing her bare legs. I was hoping for her to drop something so she would bend over so I could see if she had any panties …. I fantasize constantly about raping that teenage whore. Maybe one day I’ll follow her home, so I could spy on her at nights.

[87] On December 5, 2002, he writes again about the same teenager, stating that she makes his heart pound. He writes, “I’m beginning to grow very fonded (sic) of the teenage girl who walks past my basement window everyday between 3:24 and 3:26 PM. I stare at her with my binoculars to get a closer look.”[73]

[88] In his description of these incidents of voyeurism, and elsewhere throughout the journal, his language is extremely violent, even more so than in the first journal. For example:

• All you sluts are nothing but young naked prey[74]

• When I see a pretty teenager as I walk in this sick society, I see rape me tattooed on their forehead[75]

• I believe that it would be more arousing if the teenage sluts tried to fight back if I started to rape them … I will be masterbating (sic) as I stare down on you as you lay on your death bed[76]

• Children/teenagers are all alike, they always have an (sic) “come rape me look” on their faces[77]

• Your eyes are telling me to rape you[78]

• If I raped a vermin I probally (sic) wouldn’t remember the next day, let alone shed a tear, cause that’s how much they mean to me… You will scream, that I promise.[79]

• In my opinion, every day should be cave man day, if you see a slut walking down the street, you should be allowed to bang her across the head and drag her home to have your way with her, considering they’re basically asking for it anyway.[80]

[89] In Volume 2, T.W. appears to be turning towards younger and younger children. He seems to be aware of this trend. At one point, he writes, “I’ve always fantasized about teenagers since day one, but recently . . . all that I fantasize about are children and young young young preteens and I keep asking myself why?”[81] At another point, he refers to having masturbated at the bottom of the stairs leading to a daycare almost every day.[82] He states that his “heart is black” for girls over the age of 12.[83] He also reports masturbating to images of child models between the age of 6 and 9, even though they are wearing clothing,[84] and of doing the same to photographs in a catalogue of young girls wearing bikinis.[85] On that same page, he mentions that when he is in stores he always notices girls about 7-8 years old wandering around and wonders where their parents are. Elsewhere on the page he says, “Even children dress like sluts.” His final entry on that same page is particularly disturbing:

I knew that children aroused me, but to admit to myself is different, but no matter how deranged my thoughts become . . . I forbid myself to become attracted to infants.

[90] In the earlier Mopboy journal, T.W. talked about having frequent sexual contact with the family dog. In the second volume, he records more current and diverse episodes of bestiality, including with various dogs,[86] and cats,[87] and being sexually aroused by watching mating squirrels.[88]

[91] T.W. mentions his niece a number of times, including overhearing his mother telling his sister to keep her daughter (his niece) away from him.[89] One of the last entries in the journal is refers to the sexual assault on his niece. He wrote in his journal:[90]

Fact: Ever since [niece] was app 4-5 years old I knew that something sexual was gonna happen between us, the only question was when? …August 20, 2010 was the night one of my fantasies became reality.

(c) Mopboy Volume 3: My Hunger Remains

[92] Volume 2 of the Mopboy Diaries ended with T.W.’s arrest on the charge of sexually assaulting his niece. He was held in custody pending trial and sentenced on October 12, 2010 to two years less a day, to be followed by three years’ probation. He was released from custody on February 12, 2012 and reported to his probation officer on February 24, 2012.[91] Mopboy Book 3 starts after he was released and continues until his arrest for criminally harassing H.B.[92] The title page includes his mug shot from jail. The first three pages consist of a brochure about the Sex Offender Registry and T.W.’s original sentence information sheet from the Ministry of Community Safety and Correctional Services. This is followed by a full page describing his sexual assault of his niece, concluding with the following:[93]

The next day, the police came to my place and arrested me and I was sentenced to 2 years less a day (17 months, 3 weeks I served) 3 years probation and life on the Sex Offender Registration Act. Question is … Was it worth it? Yes, cause (sic) I got to steal my nieces (sic) virginity and I’ll be masterbating (sic) to that night for years and years to come.

[93] T.W. next includes in the volume two certificates of achievement for courses completed while in custody, including “Extended Self-Regulation for Sexual Offending Group,” the latter being followed immediately by a graphic pornographic “poem” written by T.W. entitled “Virgin Decay”. On the next page, T.W. includes a copy of the order requiring him to comply with the Sex Offender Information Registration Act, which he has doctored to remove a segment of text under the heading “sexual assault, invitation to sexual touching”, replacing it with an enlarged photograph of a hairless female vulva.[94]

[94] Volume 3 is not complete. Many of the pages were not yet inserted into the binder, and were in stages of preparation, e.g. with photos mounted and no text, or only partial text. The material in Volume 3 is similar to what is in Volume 2. It is apparent from the tone and content of Volume 3 that any treatment T.W. received in prison had little if any effect on his urges. T.W. himself makes that point a number of times, including as follows:[95]

When I was in jail pacing back and forth, I used to ask myself: why do they release people like me back into society? Considering I don’t even trust myself if a young slut crosses my path.

[95] On the next page, he wrote, “Sluts only have one purpose in this sick society and that is waiting to be raped.”[96]

[96] T.W. wrote repeatedly about not regretting the assault on his niece:

When I was in the sex offender class, one of the teachers asked if I could go back in time, would I do what I did again. I said—to be honest yes.[97]

I remember my lawyer asking me if I felt remorse for the incident between myself and [niece] considering I was the uncle and her protector? I said no, and just by the look on her face I think she wanted to hang me herself.[98]

I fantasize constantly about putting my dripping cock in [my niece’s] mouth again.[99]

[97] T.W. makes a number of references to treatment programs and psychiatrists he was involved with during his incarceration. These references were decidedly negative in tone.

E. THE EVIDENCE OF DR. WOODSIDE

[98] Dr. Scott Woodside is a forensic psychiatrist and the clinical head of the Sexual Behaviours Clinic at the Centre for Addiction and Mental Health in Toronto. He also lectures in psychiatry at the University of Toronto. Dr. Woodside has vast experience in the assessment of persons who have committed sexual offences with a view to determining whether they are treatable and/or controllable if released. There was no challenge to his expertise in this area, which is a highly specialized field of psychiatry.

[99] Dr. Woodside provided a 77-page written report and testified at the sentencing hearing. He fairly acknowledged that his assessment of T.W. was based on more limited first-hand interaction with T.W. than he would have preferred. His first psychiatric interview with T.W. continued for approximately three hours. However, the second session was cut short after 45 minutes, when T.W. refused to continue. Dr. Woodside did, however, have access to clinical records from prior assessments of T.W. as well as the Mopboy Diaries and Serial Killer Binders. He was also able to assess the level of risk T.W. represents by reference to a number of standard psychological tests.

[100] Dr. Woodside testified that in his opinion T.W. is not suffering from a major mental illness such as schizophrenia or bipolar disorder. Although a psychiatrist previously diagnosed T.W. as being schizophrenic, this was based on his descriptions of his life with his “three daughters.” In Dr. Woodside’s view, T.W. knew the dolls were not his actual daughters and his play-acting with them was based in fantasy. Dr. Woodside testified that T.W.’s bizarre interests and behaviours indicate a personality disorder, rather than psychosis. Testing shows T.W. to be in the “borderline” level of intellectual functioning with an I.Q. of 80, but he is fully functional.

[101] Dr. Woodside diagnosed T.W. with suffering from a severe substance use disorder with respect to alcohol. There is substantial support for that diagnosis in the material before me. T.W began drinking heavily while still a child. At his peak, he was drinking 160 ounces of whiskey a week and was suffering from alcohol-induced pancreatitis.[100] T.W. has reported that he would be drinking heavily when working on his journals and watching pornography. He also claims he was drunk at the time he sexually assaulted his niece. Dr. Woodside described T.W.’s desire to stop drinking as “pre-contemplative” – essentially T.W. saw no reason to stop drinking. Dr. Woodside considered this to be a serious concern because of the disinhibiting effect of alcohol use. He testified that it was a bad sign that T.W. had undergone the substance abuse program at the St. Lawrence Centre after his conviction for sexually assaulting his niece, but had nevertheless started drinking again as soon as he was released.

[102] Dr. Woodside testified that T.W. has a social anxiety disorder, more particularly, social phobia. Again, this is well-supported in the material, both from the reports of other professionals and from T.W.’s own writings. He is uncomfortable in social settings and believes he is being scrutinized and found wanting by others. He often comments on people making fun of him or mocking him. He has had these feelings from childhood. In Dr. Woodside’s opinion, this has worsened in T.W.’s adult years.

[103] Every doctor who has assessed T.W. has diagnosed him as suffering from a personality disorder of some form or another. Dr. Woodside testified that T.W. has many personality disorders, indeed, the longest list of such disorders he has ever seen in one person. He diagnosed T.W. as suffering from a personality disorder with the following features: paranoid; avoidant; schizoid; schizotypal; borderline; narcissistic; antisocial; and, obsessive-compulsive. The paranoid features shown by T.W. are a pervasive distrust and suspiciousness of others and seeing his difficulties as generated by others, rather than himself. He is avoidant. Feeling that people are mocking him and making fun of him, he avoids contact with others. People with schizoid elements tend to be loners, which is the case with T.W., and may seem haughty or entitled or narcissistic. Those who are schizotypal have odd beliefs and thinking, sometimes involving magical thinking with unusual perceptual experiences. These are also aspects of T.W.’s personality. Borderline traits include recurrent, intense outbursts of anger, instability of mood, relationships and self-image and a vulnerability to distorted thought and perception when under stress. Dr. Woodside also testified that people with borderline personalities may feel abandoned and resort to self-harming actions. These are also characteristics of T.W.’s personality. Dr. Woodside was of the view that he could not diagnose T.W. as having an Antisocial Personality Disorder because evidence of the conduct disorder must be present prior to the age of 15. In his report he defined a conduct disorder as involving a “repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated.”[101] Behaviours falling within the disorder are categorized as: (1) aggression to people and animals; (2) destruction of property; (3) deceitfulness or theft; or serious violation of rules. Although Dr. Woodside saw evidence that T.W. exhibited such behavior before the age of 15, he did not see this as being “repetitive” or “persistent” and felt that he therefore did not meet the criteria for Antisocial Personality Disorder. However, because T.W. certainly displayed such behaviours as an adult, Dr. Woodside characterized this as the presence of antisocial personality traits, rather than the full disorder.

[104] Dr. Woodside also diagnosed T.W. as suffering from many paraphilias (deviant sexual interests), as follows:

• Pedohebephilia: T.W. has a sexual preference for children and peri-pubescent aged children. This is a fixed preference and will not change. The fact that he will also engage in sexual acts with adults does not change his actual preference for sex with children.

• Sexual Sadism Disorder: T.W. has a primary sexual preference for sadism, meaning that he is sexually aroused by the physiological or physical (including humiliation) of his victim. His greatest response on phallometric testing was to rape scenarios in which the victim is seen to be resisting, in pain, humiliated and crying throughout. This is a condition that is rare, but is believed to be chronic. Dr. Woodside testified that only 1 to 2% of sexual offenders are overtly sadistic. The combination of sadism and pedophilia is even more unusual, too rare to quantify.

• Exhibitionism: T.W. is sexually aroused by exposing his genitals to strangers, often accompanied then or later, by masturbation. He has engaged in that behaviour since his childhood and continued in his adulthood as chronicled in his Mopboy Diaries.

• Voyeurism: this disorder is characterized by sexual arousal to the act of witnessing others engaged in intimate activities, such as sexual activity or undressing. T.W.’s diaries contain many references to his voyeuristic behaviour.

• Fetishism: T.W. has a fetish for women’s panties, something he has had since very early childhood.

• Necrophilia: T.W. is sexually aroused by the idea of having sex with a dead body. He fantasizes about this, writes about it, and masturbates to images. He has also persuaded sexual partners to pretend that they are dead while he has sexual intercourse with him. He reports in his journals that he made considerable attempts to get a job in a funeral home so that he could have sex with dead bodies, but nobody would hire him.[102]

• Zoophilia: T.W. repeatedly engaged in sexual acts with dogs. He also enjoys pornography depicting women being degraded through sexual activity with dogs.

[105] Dr. Woodside testified that treatment for people with sexual paraphilias can involve psychological treatment and pharmacological intervention. The psychological treatment typically includes counselling and cognitive behavior therapy to control relapse. Pharmacological treatment involves sex-drive reducing medication. In addition to these two primary modes of treatment other causative factors should be addressed, such as depression, anxiety, unemployment, poor social skills, loneliness and substance abuse.

[106] People can have sexual paraphilias and never act on them, or never act on them in a coercive or violent way. T.W. is not in that category – he has already acted on at least some of his paraphilias, in some instances in violent and coercive ways. Dr. Woodside took two approaches in considering the risk of T.W. acting on his deviant sexual urges in the future: (1) a consideration of various criminogenic variables in T.W.’s personal circumstances that may point towards or away from his acting on his paraphilias; and (2) risk assessment based on three actuarial/ statistical models. Dr. Woodside opined that having arrived at an objective actuarial estimate of risk, it is necessary to address the clinical, non-actuarial factors that may suggest adjustment of the risk appraisal upwards or downwards. He was candid in recognizing that empirical research has consistently shown that the risk assessment tools are superior to clinical expert opinions in offering a probability of recidivism over a defined period of time.

[107] T.W.’s degree of risk was assessed under three instruments: the Psychopathy Checklist Revised (“PCL-R”); the Sex Offender Risk Assessment Guide (“SORAG”); and the Static 99R. the PCL-R considers the extent to which an individual resembles the prototype of a psychopath. The test consists of 20 items, each of which are scored as 0, 1 or 2, with the result that possible total scores range from 0 to 40. Dr. Hare, who developed the test, defined psychopathy as evidence by a score of 30 or more. T.W.’s score was 17 out of 40, which places him on the 28th percentile of the population of male prison inmates.

[108] The PCL-R score is a component of the SORAG instrument, which is directed more specifically at identifying risk for sexual offenders. On the SORAG test, T.W. scored +26, which places him at the 93rd percentile. T.W. was rated at 8 out of 9 ascending degrees of risk, with 1-3 being a low risk, 4-6 being a moderate risk, and 7-9 being a high risk. In T.W.’s risk category, 89% of offenders committed a new violent offence within 10 years of their first opportunity. Taking into account the risk of error in either direction, Dr. Woodside placed his probability of violent recidivism at between 80% and 100% within 10 years of opportunity.

[109] On the Static-99R test, T.W. scored 2 out of 12, assuming he would be over 40 years old when released from prison (he will be 40 in October, 2017). That score is higher than 45% of “routine sex offenders.” In a sample of high risk/high needs offenders, approximately 20% with the same score committed a new sexual offence within 10 years of opportunity. Under this test, Dr. Woodside stated that T.W.’s risk of recidivating sexually was about the same as that of the average sex offender. However, Dr. Woodside testified that this instrument is not as reliable in assessing risk because of the limited number of factors it takes into account and because it does not include factors known to be highly correlated to future recidivism.

[110] Dr. Woodside also took into account a number of dynamic factors relating to T.W.’s likely degree of risk, all of which he considered to be negative indicators, as follows:

• Sexual deviance: It is not uncommon for a person with one paraphilia to have others. However, the number and range of T.W.’s deviant sexual preferences is unusual, and is a negative factor. The combination of these multiple paraphilias enhances the risk. Also, the fact that these sexually deviant urges were early in onset and persistent in nature is a negative factor. T.W. was acting on some of these paraphilias when he was as young as eight years old. Dr. Woodside testified that the fact that T.W. engaged in “rehearsals” of these sexually deviant fantasies with partners and his history of offending increased the risk of his reoffending. He wrote in his report that “once sexually sadistic individuals move beyond fantasy to behavioural rehearsal and preparation for an offense, they are unlikely to stop until apprehended.”[103]

• Empathy and remorse: According to Dr. Woodside, T.W. is a narcissistic personality who does not see himself as having any problems and sees no reason to change. He has no concern about whether his actions hurt others. Indeed, he enjoys hurting women and children. He has no empathy for others. Dr. Woodside noted that when caught most offenders will say they are sorry. He therefore finds expressions of remorse to bear almost no relationship to assessing the risk of future violence. However, what is a good predictor is when someone says he is not sorry. Dr. Woodside referred to T.W. as being “one of a tiny handful of men” he had seen throughout his career who said he was not sorry for a sexual offence. Indeed, Dr. Woodside noted that in referring, in his journal, to the sexual assault of his niece, T.W. said going to jail for 15 months was “worth it” and that he would do it again. In his interview with Dr. Woodside, T.W. stated quite openly that he did not see that he had done anything wrong with his niece as she was 14 years old and had consented to having sex with him. He told Dr. Woodside that if a child was old enough to know what sex was and they were willing to say yes to it, he did not see there was any problem with it. When asked if this would extend to 12-year-olds, he said it would. When asked if an eight-year-old could consent, he said, “That’s different.”

• Friends and family: T.W. has no friends, family or other supports in the community. His closest support was his mother, but she died in 2013. He had previously also had some connections with his sister, but that ended when he sexually assaulted her daughter (his niece). This lack of a support system was cited by Dr. Woodside as a negative risk factor.

• Substance abuse: T.W. is a longstanding and severe abuser of alcohol. His alcohol use has been associated with some of his criminal activity in the past. Dr. Woodside testified that this greatly increased his risk of re-offending. Further, T.W. does not see his alcohol consumption as a problem and is resistant to controlling it.

• Vocational skills: T.W. has a low IQ, limited education and no vocational skills. To the extent he had steady employment in the past, it was mostly because he was employed for 10 years by his brother-in-law (the father of the niece he sexually assaulted). When not employed, T.W.’s time was unstructured and he engaged in a lifestyle of consuming alcohol, watching violent pornography, creating pornography, and writing extensively about his sexual deviances. Dr. Woodside found this pattern to be a negative factor for future stability.

• Prior response to treatment and supervision: Dr. Woodside was particularly concerned about T.W.’s resistance to treatment and his track record with respect to prior attempted treatments. He was previously prescribed sex-drive reducing drugs, which he stopped taking because he did not like the fact that they reduced his sex-drive and interfered with his masturbatory practices, reduced his sexual thoughts and impacted his ability to achieve orgasm. T.W. had undergone the conventional treatments after his conviction for sexually assaulting his niece and was not only resistant, but scornful and derisive of that treatment. When released from prison that time, and while still on probation and under strict supervision, he immediately returned to a lifestyle of heavy drinking, watching and creating pornography and writing about this in his journal. Also, he almost immediately reoffended by criminally harassing H.B.

[111] Given all of these variables, Dr. Woodside’s opinion is that the actuarial instruments probably significantly underestimate T.W.’s likelihood of reoffending. In his view, T.W. is “at moderate to high risk[104]for purely violent recidivism and moderate to high risk for sexually violent recidivism from a purely clinical perspective, as well as from an actuarial perspective.” However, Dr. Woodside is unable to say what the severity of future reoffending might be. He recognized that the actual crimes committed by T.W. thus far, are not as extreme or violent as those things he fantasizes about doing (e.g. murder and necrophilia of children and women). He stated that T.W.’s likelihood of enacting his most violent fantasies “while deeply concerning, remain unknown.”[105]

[112] Dr. Woodside considered whether, from a psychiatric perspective, T.W. met some of the criteria for dangerous offender status. With respect to s. 753(1)(a)(i) of the Criminal Code, Dr. Woodside testified that T.W. had shown a failure to restrain his behavior and that there was a likelihood that he would cause death, injury or severe psychological harm to another person in the future. However, he believed that this would be primarily related to sexual offending. Further, with respect to s. 753(1)(a)(ii). Dr. Woodside is of the opinion that T.W. has shown a “substantial degree of indifference” respecting the foreseeable consequences to other people of his behavior. He stated in his report, “[T.W.’s] writings speak eloquently to his almost total indifference to the harm he may cause to his victims, and more significantly to his enjoyment of their suffering.” Finally, Dr. Woodside testified that T.W. meets the criteria for designation under to s. 753(1)(b) because based on actuarial and clinical assessments he is at moderate to high risk of committing a future sexual offence.

[113] In considering whether T.W.’s risk of reoffending could be managed in the community, Dr. Woodside was pessimistic. In his view, given T.W.’s multiple paraphilias and personality disorders, as well as his past record of treatment and reaction to treatment, the prognosis for success in treating him is poor, even if he were to persist in treatment, which is doubtful. T.W.’s response to prior supervision was also very poor, another indicator for the unlikely ability to manage the risk he represents in the community.

[114] However, in the event that an LTSO was made, Dr. Woodside offered his views on what would be required to supervise T.W. in the community, as follows:[106]

(1) Programming during incarceration, including cognitive skills and programs to deal with alcohol abuse and sexual offender treatment;

(2) Treatment programs for alcohol abuse in the community, including urine drug testing twice weekly and whenever substance abuse is suspected, participation in relapse prevention, and attendance at community support groups such as AA;

(3) Anti-alcohol medication supervised daily to ensure compliance;

(4) Abstention from alcohol in perpetuity;

(5) Intense supervision upon release, including 1-2 years in a correctional facility, with privileges for unsupervised time being earned through demonstrated compliance and any release taking place on a graduated and slow basis allowing for rapid intervention if there was a failure to comply;

(6) Whereabouts outside the facility should be subject to verification initially on a daily basis and with regular, unannounced visits if T.W. is living outside a correctional facility;

(7) Any future intimate partners should be contacted by probation and parole and fully informed of T.W.’s history and advised to contact police immediately if they have reason to believe T.W. has access to children or has resumed alcohol use;

(8) No contact with peers with a history of sexual activity with children;

(9) No unsupervised contact with individuals under the age of 18 in perpetuity;

(10) Treatment with sex-drive reducing medication prior to any eventual release and as a critical component of any release - to be initiated two to three months prior to release and monitored to ensure that testosterone levels have been suppressed;

(11) Sex-offender treatment should be viewed as life-long and if T.W were to refuse sex-offender treatment or with sex-drive reducing medication, then he should be seen as an unmanageable risk;

(12) Ongoing psychiatric follow-up for anxiety-related disorders, including use of cognitive-behavioural treatment and or psychotropic medications (but not medications with abuse potential such as benzodiazepines).

F. ANALYSIS: DANGEROUS OFFENDER

[115] I agree with the submission of Ms. MacPherson, for the Crown, that T.W. meets the criteria for designation as a dangerous offender under all of ss. 753 (1)(a)(i), 753(1)(a)(ii), and 753(1)(b). This is also consistent with Dr. Woodside’s opinion evidence. I also agree with Ms. MacPherson that of these three provisions, the most applicable to T.W.’s particular situation is s. 753(1)(b). I will therefore focus my analysis on that provision.

[116] The first prerequisite is that the index offence be a “serious personal injury offence.” By definition, forced non-consensual anal intercourse meets that requirement.

[117] The next requirement is that T.W. has shown a failure to control his sexual impulses. This requirement is also easily satisfied. T.W. demonstrated lack of control when he sexually assaulted Ms. T. In addition, since that time he failed to control his sexual impulses when he sexually assaulted his niece, and in respect of his repeated acts of criminal harassment of H.B., as well as his morbid fixation on creating binders of material featuring pornographic images of children and writings endorsing the kidnapping, rape, and murder of women and children.

[118] Finally, I must be satisfied that there is a likelihood that T.W. will cause injury, pain or other evil to other persons through his failure to control his sexual urges. I will consider this issue in two stages: (1) whether there is a likelihood that T.W. will fail to control his impulses; and, (2) the impact of such a failure on others.

[119] I found Dr. Woodside’s evidence to be balanced, fair, and supported by objective evidence. I accept his opinion that, based on the actuarial instruments he considered, there is a moderate to high risk that T.W. will reoffend in a sexual way. I also accept his opinion that, from a clinical perspective, T.W. likely presents an even greater risk than is shown in these tests.

[120] T.W.’s entire focus in life is his fantasies, almost all of which are sexually perverse. He has been obsessed with H.B. and M. for well over a decade and there is no sign of that diminishing. He is fixated on the idea that these are his true loves, notwithstanding that he has never had an actual relationship with either of them. In my view, he is highly unlikely to let those obsessions go. Those women are not safe from his obsessive belief that they belong with him.

[121] T.W. wrote in his journal that he lusted over his niece since she was four or five years old. He also wrote that his family members were suspicious of his predilections and were careful not to leave him alone with his niece. However, one night, when she was 14, he saw his opportunity and he seized it, sexually violating his own niece in her own home, while her mother (his sister) was sleeping upstairs. Even after this was reported to the police and T.W. was convicted and served time, he was unrepentant. He openly told others, and wrote in his journal, that he felt no remorse for his actions. In his journal he wrote that doing the time in jail was “worth it” and that he would be masturbating to the memories of it for years to come. I have no doubt that these are his true feelings on the subject. I also have no doubt that if such an opportunity to have sex with a child is presented to T.W. in the future, he will act on it again.

[122] T.W. has no respect for authority and will not abide by any directions from the court or its representatives. He committed the sexual assault on Ms. T. while he was on bail. As soon as he finished serving his time for sexually assaulting his niece, and while still on probation with close supervision, he returned immediately to binge drinking, stalking H.B., and viewing and creating pornography. This was the case even though he had completed remedial programs while in custody on controlling his deviant sexual urges and avoiding substance abuse. He did not even try to avoid any of the behaviours that were directly linked to the sexual assault of his niece. He continued to fantasize about his niece. Because the sex-drive reducing medication he had been prescribed was working and reducing his sex-drive, he stopped taking it. He did not want his sex-drive reduced. He wanted to continue as he had before, completely immersed in a world of worshipping misogyny and violence towards women and children and actively plotting to act on his deviant urges.

[123] It is worrisome that T.W. is turning towards younger and younger children as time progresses. He has no empathy for his victims and believes that young girls are “sluts” who deserved to be raped, and worse. He does not care about going back to jail. He does not care what anybody in the community thinks about him. He has no friends; no family; no moral supports. More importantly, he has no internal moral compass. He will do whatever he wants to do; and what he wants to do is to rape, and perhaps kill, women and children. I believe he will seek out the most vulnerable and he will use them to satisfy his perverse sexual urges whenever the opportunity arises. As his focus has turned to even younger children, who would be less able to escape his clutches or protect themselves, this is an even greater concern.

[124] There is no question in my mind that T.W. will continue to be controlled by his own deviant urges, rather than attempting to restrain them. He has clearly demonstrated his utter contempt for the treatment he has undergone in the past. His attitude to those attempts to control his deviant sexual preferences is graphically illustrated in his Mopboy Diary Volume 3, in which he superimposed a female child’s genitalia on a sexual offender registry document. The very title of this volume is chilling – “My Hunger Remains.”

[125] There is a question, however, as to how far T.W. will go in acting on his impulses. Defence counsel points out that although T.W. has committed sexual offences, those acts are nowhere close to the types of things he fantasizes about in his journals. Defence counsel argues, therefore, that T.W. is exercising a measure of control over his own actions. I recognize that T.W. has not done the worst of the things he writes about wanting to do. As far as we are aware, he has not killed anybody, nor has he had sex with a dead body, or eaten the flesh of a corpse. He has not kidnapped any children. I think if he had committed any of these extreme things, he would likely have written about them. It is not possible to predict whether his behaviour, if released, will escalate to what he dreams about doing. However, I do have a concern that if released now, or in the foreseeable future, he will act on these desires for fear that if he does not, he might never get the chance. It is clear that these are things he actually does want to do.

[126] However, even if T.W. does not act on the most violent and extreme of his deviant urges, but rather continues as he has in the past, there is still a high likelihood that physical harm and severe emotional harm will be visited upon young women and children in our community. Some of his victims are predictable, because he is obsessed with them, and they can be warned. However, they would understandably be constantly fearful. They should not have to live with that dread. Other victims cannot be predicted. It could be any child, or any teenager, who happens across his path. He might do no more than watch and stalk them and try to find ways to see them naked, as he has done in the past. Or he might expose himself to them, or masturbate in front of them, as he has done in the past. Or he might seize an opportunity to rape them, as he did with his niece and Ms. T. All of these have enormous potential for devastating consequences on his victims, both physically and emotionally, particularly given the vulnerability of the population he craves. Traumatic experiences such as these can have permanent, life-long consequences for victims. And those are the consequences if T.W. only does what he has already done before. If his behaviour escalates, which is quite possible, even likely, the consequences would be even more devastating.

[127] I agree with the Crown that the focus at this stage is not whether the Dangerous Offender designation is too severe a sanction for the underlying offence. The primary focus is not on proportionality, but rather on protecting the community. T.W. has been given many opportunities to reform himself and control his behaviour. He was hospitalized numerous times without effect. He has been given treatment for his alcohol abuse and for his sexual deviance. He has continued to indulge in his deviant behaviour unrepentant and unabashed. He will, in my view, continue to do so in the future. I recognize that a Dangerous Offender designation is a profound interference with T.W.’s liberty. However, my greater duty at this point is to the vulnerable members of our society, the women and children who will be injured, perhaps permanently so, if T.W. is released.

[128] Accordingly, I find that the requirements for designating T.W, as a Dangerous Offender are met. That does not, however, end the analysis. I retain a discretion to impose a lesser sentence if the objectives of sentencing can otherwise be met. I turn then to consider the risk can be managed by designating T.W. to be a Long Term Offender.

G. ANALYSIS: CONTROLLING THE RISK IN THE COMMUNITY

[129] Again, I have carefully considered, and am persuaded by, the evidence of Dr. Woodside. There is no “cure” for T.W.’s sexual preferences or personality disorders. They are life-long. The issue is whether, with treatment and medication, he can learn to control his desire to act on his sexual urges and to thereby avoid harming others.

[130] The first problem is that I do not see any evidence that T.W. is motivated to change. Although he told Dr. Woodside at one point that he would now agree to take the sex-drive reducing drugs, I do not accept that this as a genuine desire to change his conduct, but rather a last-ditch effort to secure his release. He does not want to stop masturbating to pornographic photographs of children, nor does he want to stop watching children and following them around, while fantasizing about raping and murdering them. That is what he enjoys doing and he has no real interest in stopping. Any release plan that depends at all on T.W.’s good faith compliance with conditions is not a reliable plan. I would not trust T.W. to take medication, nor would I trust him to abstain from alcohol use. Any such restrictions would have to be closely supervised to achieve compliance.

[131] I also would not trust T.W. to stay away from triggers such as pornography and alcohol abuse. I believe he will continue his voyeuristic habits and seek out children and teenagers to watch, unless directly supervised and prevented from doing so.

[132] One has only to review the conditions listed by Dr. Woodside as necessary terms of a LTSO to realize how unworkable such an order would be. For example, Dr. Woodside recommends that T.W. abstain from alcohol use in perpetuity and that he be prohibited from having contact with children for the rest of his life. Neither of these can be achieved with a LTSO because the longest possible duration for such an order is 10 years. After that, T.W. would be released with no controls or restrictions whatsoever. There is no basis for believing that the risk now present would disappear, or even be appreciably diminished, after 10 years.

[133] Further, the level of supervision that would be required even within the 10-year LTSO is so onerous that it virtually replicates the supervision of a jail. I agree with Dr. Woodside that it would be required. The only way to prevent T.W. from hurting women and children is to watch him constantly. However, such a high level of supervision is not available in the community, and is not workable. Supervising an individual such as T.W., with such a high degree of risk, cannot be done efficiently, or safely, in the community.

[134] I do not see any realistic plan that could be put into place that could reasonably manage the risk to the community that T.W. represents. At the present time, and for the foreseeable future, there is no reasonable possibility of controlling the risk in the community. I would hope that over time, and with treatment, and perhaps with a more mature perspective, the prospects for T.W. functioning in the community will improve. However, it is clear from the case law that hope is not enough.

[135] T.W. has no empathy or concern for others and no desire to change. He is only motivated by self-interest. In my opinion, only a Dangerous Offender designation and an indeterminate sentence are sufficient to protect the community in this case. T.W.’s status will be reviewed on a regular basis. He will have access to remedial programs for his various issues. If he applies himself sufficiently, he might be releasable in the future. At that point, if released, he can be closely supervised and immediately pulled back into custody for any breach. There would be an incentive for T.W. to comply in that situation, as the only alternative would be spending the rest of his life in jail.

[136] However, as things stand now, I see no reasonable prospect of managing T.W. in the community, no matter what terms are placed in a LTSO. The risk is simply too great, and the harm that would likely result, too devastating.

G. CONCLUSION AND ORDER

[137] Accordingly, I find T.W. to be a Dangerous Offender and sentence him to an indeterminate period of imprisonment.

MOLLOY J.

Released: June 14, 2017

CITATION: R. v. T.W., 2017 ONSC 3669

COURT FILE NO.: 13-4-0000-529

DATE: 20170614

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

T. W.

REASONS FOR SENTENCE

MOLLOY J.

Released: June 14, 2017

[1] Initials are used to identify the offender. One of his victims, a child, is a relative and there is a concern that publication of his name might identify her.

[2] R. v. T.W., 2014 ONSC 4532; R. v. T.W., 2014 ONSC 4533

[3] R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 41.

[4] Ibid.

[5] Criminal Code, ss. 753.1(3)

[6] Ibid, ss. 753.1(2)(b).

[7] Johnson, at para. 31.

[8] R. v. N.J.M. (2005), 2005 8674 (ON CA), 196 O.A.C. 101, at paras. 47-48; R. v. Higginbottom (2001), 2001 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.), at paras. 24-26.

[9] R. v. G.L., 2007 ONCA 548, 87 O.R. (3d) 683.

[10] Exhibit 6A, Mopboy Diaries Book 1, at p. 383.

[11] Ibid, at p. 385.

[12] Ibid, at p. 382.

[13] Exhibit 6B, Mopboy Diary, Book 2, at p. 724.

[14] H.T. would later be the complainant on the sexual assault charge upon which I convicted T.W. and which is the underlying offence for this dangerous offender application.

[15] His parents divorced when he was about 16.

[16] R. v. T.W., 2014 ONSC 4533.

[17] R. v. T.W., 2014 ONSC 4533, para. 24.

[18] Ibid, at para. 27.

[19] Ibid, at paras. 33-37.

[20] Exhibit 6B, Mopboy Diary Book 2, at p. 697.

[21] Exhibit 6C, Mopboy Diary Book 3, at p. 853.

[22] R. v. T.W., 2014 ONSC 4532.

[23] Ibid, at paras. 24-27.

[24] Ibid, at paras. 28-31.

[25] Exhibit 5A. Although this binder is numbered pp. 145-251, the numbers were added on stick-on labels by the police after the fact, apparently without realizing which binder was first in time.

[26] Ibid, at p. 187.

[27] Ibid, at p. 251.

[28] Exhibit 6B, Mopboy Book 2, at p. 698.

[29] Exhibit 5B.

[30] Ibid, p. 35

[31] Ibid, pp. 40-89

[32] Ibid, p. 40

[33] Ibid, p. 41

[34] Ibid, p. 49

[35] Ibid, p. 51

[36] Ibid, p. 53

[37] Ibid, p. 54

[38] Ibid, p. 66

[39] Ibid, p. 77

[40] Ibid, at p. 80.

[41] Ibid, at p. 144.

[42] Exhibit 11, Report of Dr. Scott Woodside, p. 13.

[43] Exhibit 5C, at pp. 252-267.

[44] Ibid, at pp. 268-269.

[45] Ibid, at pp. 270-298.

[46] Ibid, at p. 270.

[47] Ibid, at p. 274.

[48] Ibid, at p. 298.

[49] Ibid, at pp. 328-329.

[50] Exhibit 6A, Mopboy Book 1, at pp. 330.

[51] Ibid, at p. 355.

[52] Ibid, at p. 356.

[53] Ibid, at p. 379, 394; see also Exhibit 6C Mopboy Book 3 at p. 837.

[54] Ibid, at pp. 376, 383 and 392.

[55] Ibid, at p. 477.

[56] Ibid, at p. 541, see also p. 506 for a similar comment on dialing preoccupation with raping a girl.

[57] Ibid, at p. 514.

[58] Ibid, at p. 446.

[59] R. v. T.W., 2014 ONSC 4532 at para. 49; Exhibit 6A at pp. 385, 359,447, 492, 363, 515-516, 501-512, 507, 509-510, 512, 518, 523, 534, 536, 552, 375, 377-378.

[60] R. v. T.W., 2014 ONSC 4532, at para. 51; Exhibit 6A at pp. 375, 377-378, 427, 464-466, 539, 465, 547-548.

[61] Ibid, at p. 451.

[62] Ibid, at p. 452.

[63] Ibid, at p. 459.

[64] Ibid, at p. 462.

[65] Ibid, at p. 463.

[66] Ibid, at p. 483.

[67] Ibid, at p. 481.

[68] Ibid, at p. 481.

[69] Exhibit 6B, Mopboy Diary Book 2, at pp. 598-801.

[70] Ibid, at pp. 601-602.

[71] Ibid, at p. 677, 711, 765, 786, 787, 799.

[72] Ibid, at p. 729, 734, 739.

[73] Ibid, at p. 605.

[74] Ibid, at p. 610.

[75] Ibid, at p. 666.

[76] Ibid, at p. 681.

[77] Ibid, at p. 735.

[78] Ibid, at p. 737.

[79] Ibid, at p. 771.

[80] Ibid, at p. 797.

[81] Ibid, at p. 733.

[82] Ibid, at p. 658.

[83] Ibid, at p. 672.

[84] Ibid, at p. 725; see also p. 776 (6-8 year-olds) and 786 (6-7 year-old) and 710.

[85] Ibid, at p. 732.

[86] Ibid, at pp. 735, 782, 795.

[87] Ibid, at p. 793, 792.

[88] Ibid, at p. 790.

[89] Ibid, at pp. 744, 746, 748, 789, 798, 799.

[90] Ibid, at p. 800.

[91] R. v. T.W., 2014 ONSC 4533, at para. 39.

[92] Exhibit 6C, Mopboy Diary Volume 3, at pp. 802-860.

[93] Ibid, at p. 806.

[94] Ibid, at p. 810.

[95] Ibid, at p. 811.

[96] Ibid, at p. 812.

[97] Ibid, at p. 817.

[98] Ibid, at p. 818.

[99] Ibid, at p. 848.

[100] Transcript of proceedings before Brewer J. on guilty plea to sexual assault, October 12, 2010, at p. 12.

[101] Exhibit 11, at p. 57

[102] Exhibit 6B, Mopboy Diaries, Volume 2, at p. 698

[103] Exhibit 11, at p. 61

[104] Ibid, at p. 66.

[105] Ibid.

[106] Ibid, at pp. 75-76