COURT FILE NO.: 13-5056 DATE: 2017-06-16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – A.A.G. Defendant
Counsel: John Semenoff, for the Crown Natasha Calvinho, for the Defendant
Heard: May 24 – 26, June 7-9, 2017
Publication Ban
Pursuant to section 486.4, Criminal Code of Canada, no person may publish or disseminate information that is likely to, or will identify any victim in this proceeding or any previous proceeding referred to in this proceeding. Breach of this ban is an offence punishable by summary conviction pursuant to s. 486.6.
Reasons for Sentence
INDEX Overview page 2 The Facts page 3 Legal Parameters page 6 Evidence at the Hearing page 10 Lindsay Maahs page 10 Leanne Blais page 11 Dr Woodside page 16 Dr. Federoff page 30 Positions of the Crown and Defence page 30 Principles of Sentencing page 31 Reasons page 33 Ancillary Orders page 36 Final Decision page 36
Reasons for Sentence
RAY J.
1. Overview
[1] The Crown seeks a dangerous offender determination and relies on the opinion of Dr. Woodside, dated October 26, 2016. The defence position is that a Long-Term Supervision order is supported by the evidence but not a dangerous offender designation; and relies on the opinion of Dr. Federoff dated May 2, 2017.
[2] On December 1, 2015, after a 5 day trial without a jury, I found the defendant guilty of eight counts of sexual assault (s. 271(1)), touching a person under fourteen for a sexual purpose (s. 151), counselling a person under fourteen to touch him for a sexual purpose (s. 152), administer a stupefying drug to assist him to commit sexual assault (s. 246(b)) against SM his stepdaughter; and assault (s. 266), assault with a weapon (s. 267(a) against EM his stepson; and assault (s. 266) on AW. (2015 ONSC 7476). These offences had taken place over the period between January 1, 2003, and June 22, 2005 while they lived together as a family.
[3] The applicable law concerning the dangerous offender (DO) and long-term offender (LTO) designation is as it existed at the time of the offences, following the 1997 amendments, and before further amendments came into force in 2008. I consider the court’s discussion of the then state of the law in R. v. Johnson to be a useful guide [^1].
2. The Facts
(a) Circumstances of the offence
[4] In my trial decision, I reviewed the evidence extensively and made detailed findings concerning the offences committed by the defendant (2015 ONSC 7476). I do not propose to repeat the evidence and my findings, other than as follows.
[5] The defendant was in a parental relationship with SM and EM in 2003 to 2005 when they were young children. AW was SM and EM’s mother.
[6] The defendant had sexually assaulted SM on more than one occasion, frequently performed oral sex while she was under 14, attempted to have full penile intercourse with her, and succeeded in having full intercourse with her. This continued unabated during the two year period while he frequently kept her home from school. On another occasion, he took her to a motel. The defendant frequently had SM touch his penis while she was under the age of 14; and masturbated in front of her. The oral sex, the touching, and the invitation to touch were part of the defendant’s constant grooming of SM, as he threatened her that she would bear his children. The defendant gave SM her mother’s sleeping medication, if that was what it was. She felt the effects of the drugs while the defendant assaulted her.
[7] The defendant physically beat EM on a number of occasions as part of a bullying, ridiculing, and controlling plan to make EM submissive. I accept EM’s evidence that the defendant increased hitting him after they moved to Ottawa from three to four times a week to five to six times a week. A belt or stick was frequently used by the defendant, and on one occasion a teacher asked him about the mark on his neck that had been caused by the beating.
[8] While in Ottawa one evening, AW went down to the basement when she heard a woman’s voice. She discovered and confronted the defendant. He grabbed her by the throat and choked her.
[9] The defendant’s threats, from time to time if SM disclosed his sexual assaults, were consistent with his history of violence; and with the beatings he gave to EM. The admitted loud physical altercations between the defendant and AW, lent credence to the physical threats by the defendant; and what he was capable of. As EM and SM both said in evidence, it was not long after the defendant came into the family, that he became the disciplinarian.
[10] The defendant gave evidence. I found him to be unreliable.
(b) Circumstances of the offender
[11] In my assessment of the defendant’s evidence during the trial, I found the defendant to be evasive when he was aware of the prejudicial evidence against him; and self-congratulatory when he knew there was no evidence on a point. I inferred from the defendant’s evidence that for him, being caught does not include him doing something wrong as long as it cannot be proven. I did not accept the defendant’s evidence in which he denied everything.
[12] Aside from the predicate offence, the criminal activities of the defendant, his periods of incarceration, and previous assessments are well documented in seven volumes of documents plus a disc containing 2,500 pages in digital format. These documents were assembled by Detective Leanne Blais. She researched, and with the use of production orders, obtained the defendant’s historical involvement with the criminal justice system and Corrections Canada. In her evidence, she identified and highlighted the various portions of the exhibits that were descriptive of the defendant’s involvement in the various offences.
[13] The defendant’s criminal record dated May 23, 2017 documents the following: a) Yarmouth Accessory after the fact to Manslaughter, May 18, 1977: 3 years. Paroled May 18, 1978 b) Common Assault, April 22, 1981: suspended sentence and 6 months, probation c) Robbery with Violence, February 19, 1982: 4 years d) Petty Crime incidents to end of 1989: theft under $200 (30 days), mandatory supervision violator recommitted, theft under $200 (15 days), released on mandatory supervision, uttering forged document and possession of stolen property (90 days intermittent and 2 years, probation on each charge concurrent), theft under $1,000 (60 days intermittent and 1 year probation, e) Pointing a firearm, July 4, 1995: 30 days f) DD sexual assault, July 26, 1995: 30 months g) L Sexual Assault, October 15, 1996: 2 years consecutive to sentence being served, life time firearms prohibition. h) Montreal Outstanding Warrant, sexual assault, 1994: withdrawn. i) Edmonton Sexual Assault, Ex 7- tab 4: Defendant was acquitted. j) G, false pretenses, June 1, 2006: 21 months and $25,0000 restitution. k) Possession for the purpose – schedule l, withdrawn. l) Index Offences, SM, EM, AW convictions- predicate offence, 2003 to 2005: discussed in detail in 2015 ONSC 7476, December 1, 2015.
[14] Dr. Scott Woodside, forensic psychiatrist, in his 70 page opinion reviewed the defendant’s involvement with the criminal justice system, previous testing, the results of a number of tests he administered and his opinion concerning whether or not the defendant may, from a psychiatric perspective, meet the criteria for Dangerous Offender or Long-Term Offender status, as articulated in Section 753 of the Criminal Code of Canada. He concluded that: Overall, when combining/considering both clinical/dynamic and actuarial assessments of risk, I view Mr. A.A.G. as being at high risk for violent recidivism and moderate to high risk for sexually violent recidivism.
[15] In addressing the criteria contained in s. 753(1) CCC as it existed at the time, he concluded that all of the criteria for dangerous offender designation had been met except for s. 753(1) a) (iii) - An individual may be found to be a Dangerous Offender when they engage in behaviour that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in future is unlikely to be inhibited by normal standards of behavioural restraint. He noted that ‘brutality’ is not a well-defined psychiatric term, requires a “substantial degree of opinion”, and therefore he was not prepared to offer a psychiatric onion. The Crown is not taking the position that this criteria is part of their case.
[16] Dr. Woodside addressed the LTO designation and concluded that: Overall, Mr. A.A.G.’s primary diagnoses (Antisocial Personality Disorder/very significant psychopathic personality traits, substance use disorders and possible paraphilia disorders) are considered difficult to treat, with a poorer prognosis being associated with each. The combination of each of these diagnoses renders the prognosis for successful treatment (a reduction in his risk for further offending) extremely poor when compared with other incarcerated offenders. Dr. Woodside was not enthusiastic about the Circles of Support program suggested by Dr. Federoff since participation is voluntary, and in his opinion, the defendant did not demonstrate a sufficiently willing attitude to make that program viable.
[17] In preparation for his report, he met with the defendant for 11 hours, and reviewed all of the documents which he summarized in a 98 page appendix to his report. He reviewed and discussed all of the previous psychiatric and psychological reports concerning the defendant from 1977 to the present, and administered a number of tests. He also noted and discussed during his evidence the phallometric test results obtained by Dr. Federoff that were not available when he completed his report.
[18] The defendant retained Dr. Federoff, forensic psychiatrist at the Royal Ottawa Hospital, to conduct an assessment and to provide an opinion. He concluded that the defendant was a good candidate for a long term supervision order since the defendant’s risk to reoffend could be managed. He suggested the Circles of Support program offered at the Royal Ottawa Hospital, and noted in part that the defendant accepts treatment with the SBC and is willing to take medication if it is recommended, including anti-androgens.
(c) Impact on the Victim and/or Community
[19] SM read her victim impact statement. It was a forceful and moving account of the challenging consequences of the defendant’s criminal conduct against her. It included a description of how the defendant’s repeated assaults had affected her ability to have relationships. She said that the memories of his assaults plague her every day; and that she feels changed forever.
3. Legal Parameters
(a) SENTENCES
[20] These provisions are as they existed at the time of the offences, unless the offender would benefit from a current sentence because it is less severe. [^2]
[21] Count #1: A conviction under s. 271(1) CCC, sexual assault – provides for a maximum sentence of 10 years.
[22] Count #2: A conviction under s. 151 CCC, touching a person under the age of 14 for a sexual purpose, a maximum sentence of 10 years.
[23] Count #3: A conviction under s. 152 CCC, invitation to touching for a sexual purpose under the age of 14 years, has a maximum sentence of 10 years.
[24] Count #4: A conviction under s. 246 (b) CCC, administering a drug with intent to commit a sexual assault, has a maximum sentence of life imprisonment.
[25] Count #5, #6 and #8: A conviction under s. 266 CCC, assault, a maximum sentence of 5 years.
[26] Count #7: A conviction under s. 267 (a) CCC, assault with a weapon, a maximum sentence of 10 years.
(b) DANGEROUS OFFENDER/LONG-TERM OFFENDER [^3]
[27] Section 753 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms apart, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. Under s. 753(4), if the sentencing judge finds the offender to be a dangerous offender, he or she shall impose a sentence of detention in a penitentiary for an indeterminate period. Under s. 761(1), the first parole hearing is required to take place seven years from the day on which the offender was taken into custody.
[28] Section 753.1 (added in 1997) (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. (2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (a) the offender has been convicted of an offence under s. 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), ss. 163.1(2) (making child pornography), ss. 163.1(3) (distribution, etc., of child pornography), ss.163.1(4) (possession of child pornography), ss. 163.1(4.1) (accessing child pornography), s. 172.1 (luring a child), ss 173(2) (exposure) or s. 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (b) the offender (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
[29] Under s. 753.1(3), if the court finds an offender to be a long-term offender, it shall:”(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act” S.C. 1992, c. 20 (as amended by S.C. 1997, c. 17).
[30] The court in R. v. Johnson concluded that in keeping with the public protection sentencing principle, a judge must first consider whether the long-term offender provisions have been met, whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat (of harm) to an acceptable level, despite the fact that the statutory criteria in s. 753(1) (dangerous offender) have been met. The court noted that almost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria for long-term offender. It noted that a sentencing judge must first conclude whether the long-term offender provisions are sufficient to reduce the threat to an acceptable level, and if so, may not declare an offender dangerous, with an indeterminate sentence even if all the criteria in s. 753(1) have been met.
[31] The 1997 amendments adding the long term offender provisions were intended to add a range of sentencing options for a judge who is satisfied the dangerous offender provisions have been met. [^4]
4. Evidence at the Hearing
[32] Documentary evidence was admitted on consent including: i. the defendant’s criminal record; ii. the defendant’s custodial materials, reports concerning the defendant in the hands of Corrections Canada, and Dr. Woodside’s report (Book 1); iii. Royal Ottawa Hospital and St. Lawrence Records including G, (Book 2) iv. Ontario Works (Book 3); v. Occurrence Report, 1992 NS Firearm to 2012 (Book 4); vi. Correctional Services Canada, including mental and psychiatric records (Book 5); vii. Transcripts, court documents and reports concerning DD Yarmouth DSW results, NS Health Authority, and Royal Ottawa Hospital (August 2007)(Book 6); viii. CECC Health Care Results including Lindsay Jail active file in the possession of Corrections Canada, and Children’s Aid Society Records (Book 7); ix. A disc containing 2500 pages of provincial and federal documentation concerning the defendant with some overlap with the binders of documents.
[33] Lindsay Maahs, a parole officer supervisor from Corrections Canada described the Corrections Canada procedures from the time an offender is sentenced, through the initial assessment, security level assessment to determine placement, programs, and programs at the different security level of the institution. She explained the institutional parole officer role as well as the community parole officer functions; and the Parole Board’s role. She also explained the functioning of the parole system for an offender with a long-term supervision order, and a dangerous offender designation. She explained the new integrated corrections program system. She also discussed the available programs after release, both within corrections and outside corrections.
[34] In particular, Ms. Maahs discussed the Circles of Support program at the Royal Ottawa Hospital; that it is a voluntary program and offenders cannot be required to attend. She also described the fact that the Circles program can clash with Corrections Canada goals in that the Circles program is designed to reintegrate the offender in the community while Corrections Canada programs may be based more on re-offence and security issues. Specifically, she said this clash could create the possibility for an offender in the Circles program being in breach of a parole condition. She said that an offender with a long-term supervision order might be only suspended for 90 days if risky behaviour is identified, unless charges are laid. During the custodial period, DO and LTO offenders are treated the same; and with the same programs.
[35] Detective Leanne Blais, a 28 year veteran of the Ottawa Police Service, with the assistance of two others, assembled evidence from the date of conviction to this hearing, obtained production orders, police reports, interviews with witnesses, victim impact statements, custodial records and ODSP records.
[36] The various relevant interactions with the justice system by the defendant were documented as follows: i. Yarmouth Accessory to Manslaughter - May 25, 1977, Justice Hallett completed a report on the defendant’s guilty plea to ‘accessory after the fact to Manslaughter’ and sentenced him to 3 years in a federal penitentiary. On the basis of the evidence before him, he said “It was a brutal beating which resulted in the death of the victim and the offender either stood aside and acquiesced in the beating or possibly participated in it.” He noted that a psychiatrist called by the defence asked that the defendant be placed in a different facility to the other offender convicted in connection with the manslaughter who was given 10 years. The offence occurred when the manager at the hotel where the two of them were staying went to their room to ask them to stop the noise. He was pulled into their room and beaten to death. The defendant gave a written account some 20 years later in which he claimed that the other offender had been the one to do the beating whereas he cleaned up the blood at the request of the offender because he was scared, and later gave himself up to the police after speaking to his parents. This later account was submitted to the judge at the DD sexual assault sentencing hearing. ii. Common Assault, April 22, 1981- The defendant’s written account was that he had been under the influence of alcohol and marijuana- and had slapped his girlfriend. He said he was no longer like that- and it was a terrible mistake. iii. Robbery with Violence, February 18, 1982- He gave a written account of having seen his girlfriend speaking to another man and her receiving $500, he followed the man home and told him he was the woman’s brother, and the man admitted to sleeping with her. The defendant became very angry, reached for the man’s knife as he went for it, accidentally cut the man’s hand as he ran out of the room, and then grabbed his wallet and left. The man fired a gun at him. After speaking to his mother, he said he gave himself up to the police. A different account was described by the police- : He had been drinking, using marijuana, and living on a disability pension (for two) in Edmunston NB, He went to Yarmouth in October 1981; and in January 1982, his girlfriend told him to go to an address to see a man living there alone. He went there with Jeff Caldwell at 1:30am, had coffee with the victim, grabbed his wallet and wound up in a scuffle with the man, bit him on the hand and ran out with his wallet. Later, he called the police, gave himself up, and cooperated. A further police report dated May 12, 1982 shows that he pleaded guilty after being apprehended, and was sentenced to 4 years. The theft was in the amount of $300 being the man’s pension money for the month. The defendant was the principal instigator. The victim was an elderly pensioner. The police noted that the defendant had been in Yarmouth throughout the previous summer and fall. He had been a nuisance and a continual problem to the police. iv. Petty Crime to the end of 1989- this is described by the defendant in his evidence at the DD sexual assault trial July 26, 1995. He said that “On April 2, 1985, I forged a welfare cheque for which I was sentenced to 30 days on May 13 of 1985. I stole a camera from a prostitute and I pawned it. I was sentenced to 15 days. On February 14, 1985, I cashed a cheque that came in the mail for a man that had been boarding with me that had left without paying the rent so I took it upon myself to cash the cheque and sell his stereo to make up for the money to pay the rent…. I was charged by him and I received 90 days incarceration and probation and two years on each charge.” v. Pointing a Firearm, July 4, 1995: At the sentencing hearing after the defendant’s plea of guilt, the Crown read in the facts as follows: This offence occurred on March 23rd of 1992 at 8:45 in the morning. On that … the above-noted date and time a Mr. Nathan Goodwin was delivering mail flyers to various residences in the Yarmouth area. He arrived at the accused’s residence to deliver a flyer. There was a large dog tied in the front yard. The dog came after him and got free from the chain that he was tied to, chased Mr. Goodwin to the point where he got in the back of his pick-up truck to get away from the dog and began to yell for someone to come out of the house to get the dog. The dog finally did go away. Mr. Goodwin then got into his truck to leave and the next thing he saw was … I mean Mr. Goodwin got into his truck. The next thing he saw was Mr. A.A.G. coming around the corner of the house pointing a long-barrelled gun at him. Mr. Goodwin left immediately, obviously at that point, and drove directly to the police to report the incident. The gun, apparently, turned out to be a pellet gun but certainly is still a firearm under the Criminal Code, Your Honour Mr. A.A.G. was arrested later that day but then released on an undertaking and left the jurisdiction for some time and was returned just recently on a warrant. The defendant’s counsel’s submissions were: “(The defendant) indicated that on the day in question he heard the dog barking and he was not sure what was going on. He had in his home a BB gun, or a pellet gun, I’m not sure which one it was but it was one or the other. He was concerned about the dog and what the dog might be doing to anyone who was on his property. He did bring the gun out. His intention was never to point it at the individual in question. It was there for the purposes of the dog, although in looking around for the dog, he admits that he might have, and probably did, point it at the individual in question. In relation to his background, he had been out West for . . . since this period . . . this occurred. He had been doing well out there. He has a wife and children who he continues, when able to, support and outside of that there’d be no other factors involved that are important”. He was sentenced to 30 days. vi. DD Sexual Assault, July 26, 1995: He was charged May 26, 1992 with sexual assault according to the Information. According to the endorsements on the Information the defendant had a fitness hearing, although there is no report of the outcome. The defendant pleaded not guilty. After trial, he was convicted. The transcript of the trial includes the judge’s decision who found as follows: (the victim) met the defendant at a bar/restaurant and found him friendly. They danced together. When he decided to leave, he got a ride with her to his residence where he took the keys from her car preventing her from leaving. There were baby sitters there. They said that the victim seemed very uncomfortable. They left by taxi. He accepted the evidence of the victim, accepted that she didn’t want to go into his house – and until he took her keys did not go into the house. When she was in the house, she tried to leave and pushed him away. She said ‘no’ when he grabbed her and stopped her from leaving. After the victim was assaulted, she stayed around for a few minutes so that she could remember the layout of the rooms. A gun was present. She received bruising from the sexual assault. The defence led no evidence, but an exculpatory statement to the police was read into evidence. In it, the defendant denied knowing the victim, denied being at the bar/restaurant, and denied the assault. In her victim impact statement obtained in 2016, she said that although the crime occurred in 1991, she continues to experience trauma, functioning challenges, anxiety and depression. She said her life changed forever, and cannot trust anyone anymore. He was sentenced to 30 months. vii. JL Sexual Assault, October 15, 1996: The defendant pleaded guilty to sexually assaulting the victim May 31, 1993, which occurred before the DD assault. The trial judge imposed a 2 year sentence consecutive to the 30 months imposed in the DD case. The facts were admitted by the defendant; that the defendant and the victim had a 5 year common law relationship. They had two young children. On the 31st of May, the defendant and the victim were arguing. She tried to leave the room. The defendant barred her way and raised his fist. “She huddled on the bed in fear. He went to the bed, sat on it and said to her – ‘I’m going to kill you. I’m going to break all your teeth and cut your hair’. The accused then touched the victim’s leg and proceeded to fondle her breasts. She attempted to roll away with her hands and arms raised to protect her face. He continued, put his hand underneath her panties, touching her genitalia. He removed her underwear, and then he held her down on the bed with one hand and pulled down his pants, got on top of her and had intercourse. He did not ejaculate due to her unresponsiveness. The accused stood up and left the bedroom momentarily. She attempted to open the window to yell for help, but the accused returned and pulled her away. She was observed at the window by neighbours. She sat on the floor and he continued to verbally abuse her, calling her a whore and a dirty bitch. She retaliated by slapping the accused across the face. He walked away and then turned and approached her, swung his right arm and punched her, grazing her face, but causing her to fall to the floor. Constable Plumb arrived on scene at 2:10 in the afternoon, but the victim did not state she had been assaulted, for fear, the accused was standing beside her. On the 10th of June, they were at their home; the accused was attempting to repair a VCR, The victim was seated on the sofa with all of the children, except for the youngest who was in bed sleeping, and then without provocation or cause, the accused looked at the victim and stated, ’If you make me mad, I’m going to break all your teeth and throw you through a wall. She was in great fear, but didn’t do anything about it. But, the next day, the 11th of June, she contacted the police.” The victim’s impact statement at the time reported that “life with (the defendant) was terrifying and my children A and B still have nightmares almost every night. The defendant served his sentence to warrant expiry. The parole board refused early parole and noted, March 22, 1999: “The Board is satisfied that, if released, you are likely to commit an offence causing serious harm to another person before the expiration of the sentence you are now serving according to law.” The report noted that in May 1998 he had been interviewed for intensive sex offender treatment. He refused. It was noted that throughout the interview the defendant was in a high level of denial. The Board concluded that all reports were consistent in recognizing his need for intensive treatment to correct his long standing negative behavioural patterns involving both violence, sexual deviancy and assaultive behaviour towards women. He was told that until he accepts and completes treatment “your risk to reoffend sexually and/or violently will continue to be assessed as high.” A British Columbia provincial 810 recognizance, January 24, 2000 on his release required that he report to probation, report to the RCMP sex offender section, maintain an address, and abstain from alcohol and drugs. He was required to attend a sex offender assessment. viii. Montreal Outstanding Warrant. He was arrested in 2013 when he was in Gatineau under this 1994 warrant that only applied in Quebec. ix. Index Offences, 2003 – to 2005, convicted December 1, 2015. (2015 ONSC 7476) x. G assault and False Pretences, 2003-2004: The 5 day jury trial took place May 30, 2006. The defendant was convicted of obtaining money by false pretences, and was sentenced to 21 months (2 years less a day minus pretrial custody) plus restitution in the amount of $25,000. The victim in her impact statement reported on the consequences of her distress following the loss of her savings and loss of financial security. The pre-sentence report of June 28, 2006 summarizes the relationship between the defendant and the victim. He manipulated her and defrauded her, having presumably identified her as highly vulnerable. The supervisor noted in her assessment of him that the defendant was dangerous and manipulative, and in her recommendations noted:” (he) is not considered a suitable candidate for a period of community supervision as it is difficult to justify how it may benefit him or the community. He does not appear to be amenable to really working on the issues he possesses with substance, anger and his treatment of women in general. Without a recognition and admission of his issues, no value can be gained”. He was sent to St. Lawrence Valley Correctional and Treatment Centre. February 2, 2007 parole was denied following the decision of the Ontario Parole Board. The report noted: “Protection of society will be best served by you continuing treatment within the institution” and that he had only been abstinent for less than 6 months, and further treatment is required.
[37] Dr. Woodside in his report of October 26, 2016 with appendix, reviewed the various historical test results and his own clinical findings. Following are the historical reports: a) Diagnostic Test Report, CSC dated July 12, 1977: The defendant’s IQ was reportedly between 76 and 84, described in the below average range. He was noted as “restless or agitated. Active mentally or physically but lacks sense of accomplishment. – Somewhat tense and restless. – Tends to give socially approved answers regarding self-control and moral values. – “Because of the nature of (the defendant’s) charge, the caseworker should consider the necessity for further psychological testing and psychiatric assessment.” b) Cumulative Summary, CSC dated April 3, 1978, (the defendant) was described as a non-criminally oriented individual who did not have any “noticeable success in academic work and no marketable skills save for a small talent in music”. “Although friendly and talkative, he is generally considered to be a bit of a nuisance, and inclined to get into minor scrapes, and getting a straightforward story from him with full details requires an inordinate amount of energy and time.” c) Psychological Services Referral Report dated March 10, 1982, (the defendant) was seen was seen regarding his threat to commit suicide. He was described as “certainly not suicidal” and it was noted he had previously slashed to bring attention to his case. He reported committing his most recent offense (a robbery) to obtain money. He reported biting the victim of the robbery, noting this individual was choking him at the time. d) Psychiatric report authored by Dr. Ryan dated March 30, 1982, Psychological Services Referral Report dated December 21,1982, (the defendant) was serving his second penitentiary sentence after committing a robbery. He was described as having made a suicide attempt in Dorchester although the psychologist there felt this was a manipulative ploy. Dr. Ryan stated (the defendant) was of limited intelligence but he could not find any evidence of psychotic thinking. He noted (the defendant) gave “a long and detailed account of his upbringing with a very brutal sadistic father and a large family.” He described (the defendant) as “a very dependent individual with low IQ who feels that he should be looked after and all safety measures should be taken to protect him; and that he should get all his needs fulfilled.” e) Forensic Social Work Assessment – ROH, dated August 5, 1993, (the defendant) reported being sexually abused by his father at age 4 and also indicated his father took money from men to have sex with his sisters. He also described being fed a glass of Javex by his mother to drink. He reported other physical abuse by his father as well. He also reported being in a five-year relationship with a woman by the name of LS. He was described as quite controlling in interview, with the author noting a “tendency to maximize on the horror of his stories while subsequently minimizing on his own negative behaviours.” f) Consultation report authored by Dr. Gojer and Dr. Bradford, ROH dated August 16, 1993 - (the defendant) reported having been sexually abused by his older sister. He denied any paraphilic/sexually deviant interests but did endorse abuse of drugs since age 17. Penile tumescence testing (i.e. phallometric testing) did not reveal any evidence of paraphilias. He was diagnosed as suffering from an antisocial disorder, alcohol abuse and likely cocaine dependence. It was noted, “…it is very hard to corroborate his history, and the possibility of a fictitious disorder needs to also be considered.” He was not felt have a defence of ‘not criminally responsible due to mental disorder’ available to him and was not felt to be suffering from a major mental illness at the time of the offence. g) Consultation report authored by Dr. Wilson, ROH dated August 18, 1993, (the defendant) was noted to be very vague regarding his own alcohol and drug use although he acknowledged drinking in his teens and heavy drinking every weekend over the previous five years with his common-law spouse. He reported use of cocaine over the previous five years, including freebasing and using cocaine in a compulsive fashion. He also reported incidents in childhood involving both incest and bestiality. He was described as showing very little insight into his use of drugs and alcohol; his current motivation was thought to be likely related to his fear of going to jail. h) Report to Court authored by Dr. Greenberg, ROH dated August 19, 1993 - (the defendant) was assessed for criminal responsibility with respect to then-outstanding charges. (The defendant) endorsed a chronic history of drug abuse, including, use of mescaline, LSD, “magic mushrooms” and many other drugs. He also reported a chronic history of use of cocaine and cannabis. He acknowledged past abuse of alcohol but denied any recent abuse. He reported past experience of alcoholic blackouts and early morning drinking. He described his father as an alcoholic who was frequently assaultive towards his mother and children. He reported his highest education was Grade 1 although he received some schooling while living in a group home between ages 7-11. He reported living on the streets since age 11. He stated he had never held down a job for any length of time up to 1993 and supported himself from welfare and his father’s allowance payments. He reported a heterosexual orientation and denied any sexual deviance. He denied any previous psychiatric contact. He was diagnosed as suffering from a personality disorder with antisocial traits, and drug and alcohol abuse. He was described as fit to stand trial and as criminally responsible. i) I Psycho-Educational Assessment authored by Dr. B. Oldridge dated March 13, 1996, (the defendant) underwent cognitive/intellectual testing. According to testing on the WAIS-R, Mr. A.A.G.’s verbal, performance and full-scale score all fell within average range. Overall, it was noted that neuro-developmental measures did not suggest any delays of significance and that measures of learning abilities yielded scores ranging from borderline to superior. His auditory-verbal learning potential was at least average although impeded by his limited vocabulary. Visual problem-solving abilities were also average as was auditory and visual memory. Symbolic or multi-sensory abilities were below average. His reading level was at the Grade 4-5 level. It was recommended that he work on developing his vocabulary. j) Psychological Report dated March 15, 1996 authored by Dr. Qureshi,(the defendant) provided details relating to his prior offenses. Regarding his1981 conviction for Common Assault, Mr. A.A.G. reported that he and his girlfriend were under the influence of alcohol and marijuana; he stated they argued and he ”wrongfully slapped her.” Regarding a 1985 conviction for theft under, he reported having forged a welfare cheque. Also in 1985, he reported having stolen a camera from a prostitute, noting he subsequently pawned it. In 1989, he reported cashing another individual’s cheque and selling his stereo, justifying this on the basis that the man had left without paying his rent. He was noted to be quite suspicious in interview, stating, “These evaluations can be harmful to us also because people can put in the reports whatever they want to.” No obvious psychotic symptoms were identified. A variety of test results were reviewed, including from the Carlson Psychological Survey. His profile on that instrument resembled that of individuals who present themselves as victims of circumstances rather than as offenders. Dr. Qureshi concluded there was no “clear cut evidence of any thought or psychotic disorder.” He recommended a psychiatric assessment and treatment involving Cognitive Living Skills, the Sexual Offender Program, Anger Management Program and vocational counselling. k) Psychological/Psychiatric Report, CSC dated December 18,1996, (the defendant) reported a number perceptual abnormalities, including tactile hallucinations auditory hallucinations and visual hallucinations involving seeing his father and an “evil, huge beast, half male, half female, entering his cell at night while he is paralyzed and conscious, stroking his face, and saying ‘You belong to me.’” No disorder of speech was noted. He reported having previously been treated with chlorpromazine, Mellaril and Luvox. It was recommended he have a psychiatric consultation and that he be encouraged to attend RHC. l) Discharge Summary from the Regional Health Centre (Pacific), CSC dated June 5,1997, Dr. Strauss, (the defendant) described, his current offences related to two counts of sexual assault, for which he denied responsibility. He described the charges as “bogus” and stated that his ex-wife the complainant, complained four years after the alleged abuse started. He also provided an account of his first conviction and his second conviction, which was described as an assault and a robbery. He indicated he had been jealous of a partner of his who he thought was involved in another relationship. He befriended the individual involved and then became involved in a fight with the man. He stated the man tried to draw a knife and as (the defendant) grabbed the knife, the victim’s hand was knicked (sic). He indicated an “associate” of his who was also present, was responsible for taking items from the home. He also provided an account of his early years, reporting a happy childhood and also being sent to a boarding school later on. He denied any behavioural difficulties from early childhood or abnormalities of sexual development. (The defendant) reported use of marijuana but denied using of any other drugs, including abuse of alcohol. The defendant was diagnosed with schizophrenia by Dr. Caldis at the Regional Health Centre (RHC) and began treatment with medication. He reported paranoia beginning with his incarceration at the age of 19 and reported having heard voices on two occasions since then, describing these as an “echoing” of his thoughts. He also complained of seeing a little man coming to his bed at night but later mused this might have happened while he was half-asleep. On mental status examination, no abnormalities of thought form or perception were noted and he was not capable of giving details about being persecuted. During his stay at RHC, it was noted he complained about the different medications he was given (risperidone and olanzapine); he eventually acknowledged not having taken any of his medication while at the RHC, tonguing it and then throwing it away later. It was noted: “Mr. A.A.G. did not exhibit any of the signs associated with schizophrenia during his stay here. The possibility that his symptoms may have been caused as a result of a chronic post-traumatic stress disorder was being explored, but by the fifth of May 1997, Mr. A.A.G. was in crisis….In his subsequent admission of the sham to the psychologist the next day, he explained to Mr. Kolton that he had read a book on schizophrenia earlier and had carefully fed us information so that we would believe that he had this disorder. He had done so in order to move out of Mountain and Mission Institutions to RHC (Pac) where he felt participating in programs would simplify obtaining the earliest parole. He further disclosed to Mr. Kolton that the reason for his startling disclosure was to expedite the quickest possible transfer back to Mountain, as he feared that we might have tried to delay his transfer if we still thought that he was sick.” Mr. A.A.G. was discharged and the diagnosis was changed to one of Malingering, Alcohol Dependence, consider possibility of PTSD and Antisocial Personality Disorder. “It is this writer’s respectful opinion that his consequent behavior at the RHC (Pac) suggests a remorseless use of others, as evidenced by his extensive lying to everybody in the program. This may be newly available information and if so, would increase at least his factor 1 scores. Mr. A.A.G. completely denies his offences, and has other sexual charges outstanding. Mr. A.A.G.’s risk to reoffend in this writer’s opinion, remains high as none of his criminogenic factors yet have been addressed.” m) Spousal Assault Risk Assessment instrument (July 4, 1997), (the defendant) was identified as a high risk for violence towards partners. n) Psychological Assessment Report – Mountain Institution dated November 27, 1997 authored by Jeff Drugge and Doug Boer, They noted (the defendant’s) presentation varied considerably, from being talkative to belligerent and hostile. He was noted to reject any concerns regarding abuse of any kind in childhood. It was also noted that despite his denying alcohol or drug problems, his lawyer had described him in 1993 as having a serious addiction to cocaine. When questioned regarding his report of having malingered symptoms of psychosis previously, he reported having been coached by other inmates on how to act, rather than having read a book in this regard. Following testing, His score was described as putting him at a high level of risk for violent recidivism. He was also scored on the Risk Assessment Guide (RAG) [VRAG], with his score falling in the 7th of nine risk categories. Offenders with similar scores were found to have a 64% probability of violent re-offence within 10 years of opportunity, placing him in a moderate-high risk category. Overall, it was noted Mr. A.A.G. could become controlling, possessive and ultimately violent and sexually assaultive when faced with relationship problems. Difficulties with temper control and a sense of entitlement were described as contributing factors. The author wrote, “Mr. A.A.G. is used to getting his way through persuasion and manipulation, but when these fail, he is capable of serious violence.” Sex offender treatment was recommended and he was described as showing little insight into his offending behaviour. Intensive treatment was described as “an absolute necessity.” o) Final Performance Report on the Cognitive Skills Program dated September 28, 1998, (the defendant) was described as very motivated and sincere in his approach to the material. He was noted to have worked hard and it was recommended he take the cognitive booster program. p) Presentence Report dated June 28, 2006. The author noted: “There is no doubt that he can be dangerous and manipulative. He would like the court to believe that he is no longer a threat to anyone and that he got himself into a precarious situation with the victim as his friendship and business agreement with her created jealousy and vindictiveness between herself and AW. (The defendant) is not considered a suitable candidate for a period of community supervision as it is difficult to justify how it may benefit him or the community. He does not appear amenable to really working on the issues he possesses with substances, anger and his treatment of women in general. Without a recognition and admission of his issues, no value can be gained.” q) Level of Service Inventory: Ontario Revision (LSI-OR) completed on August 23, 2006, (the defendant) received a total score of 22 and was identified as a high-risk/high needs offender. At the time it was noted he was serving a 21-month jail term for committing theft under false pretences. Mr. A.A.G. denied having taken advantage of the victim, or having used violence towards her. He was ordered by the court to make restitution of $25,000 to the victim but did not believe he would be able to do so. He acknowledged heavy use of marijuana, hashish and mushrooms prior to his incarceration and requested treatment in this regard. Additional information indicated he was also using crystal meth although he denied this. He did admit to heavy use of cocaine until 2000 but denied use thereafter. Mr. A.A.G. advised he was diagnosed with “borderline schizophrenia” in 1977 and had been receiving antipsychotic medication while at the OCDC. r) Admission History, ROH/SLVI dated September 7, 2006, (the defendant) reported his father was physically abusive and an alcoholic. He reported being in special education classes but denied any behavioural problems in childhood. He stated he had never had full-time legal employment and reported a lengthy criminal history. He also endorsed longstanding substance abuse problems mainly related to alcohol dependence and use of cannabis. He also reported regular use of cocaine for six months, ending seven months previously. Regarding his psychiatric history, he reported having heard auditory hallucinations and occasional command hallucinations, decreased with medication. He also reported feeling paralyzed at times and stated he suffered from nightmares and flashbacks regarding the violence he had witnessed. He denied any history of extended depressive episodes or manic symptoms. Dr. Booth diagnosed schizophrenia. Depressive disorder NOS, Cannabis, Cocaine and Alcohol Dependence and PTSD. He also noted adult antisocial behaviour. In terms of risk assessment. Dr. Booth scored Mr. A.A.G. 13 on the PCL-R, +2 on the VRAG; highest category and 18/40 on the HCR-20 instrument. He gave him a score of 3 on the Static-99 instrument putting him in a moderate-low risk category for sexual recidivism. Dr. Woodside noted that almost all of these scores were markedly lower than a more fulsome risk assessment completed later in his stay at SLVI. s) Pre-Parole Report dated January 16, 2007, AW denied ever being a victim of domestic abuse and described the defendant as a good man. t) A Level One Assessment report from the ROH/St. Lawrence Valley Correctional and Treatment Centre dated January 12, 2007, (the defendant) was admitted and provided an account of his early home life in significant contrast to his other reports; on this occasion, he described his family life as “good and funny”, and reporting a good relationship with his father. He also denied any family history of mental illness or alcohol/drug use, once again in contrast to prior reports. He reported only two prior psychiatric contacts, first in1977 while facing an accessory to murder charge and then again in the summer of 2006 while at the OCDC. He denied any ongoing psychotic symptoms and none were observed on mental status examination; he denied any problems with alcohol since the age of 16. He reported ongoing use of marijuana and stated he used to use cocaine 3-4 times per year up until 2005. The defendant’s diagnoses were identified as: Post-Traumatic Stress Disorder Dysthymia, possible history of major depressive disorder, Cannabis dependence, Cocaine abuse, Possible learning disability/developmental delay The defendant was assessed regarding risk to reoffend. His score on the LSl-OR was noted to be 22, placing him in a high risk/needs group. On the HCR-20 instrument, he scored 17/20 on historical risk factors, 4/10 on clinical risk factors and 6/10 on risk management items. Overall, his score was 27/40 which was described as representing a moderate risk for violence, bordering on a high-risk rating. He was scored on the VRAG instrument, falling in a range whereby 58% of offenders will reoffend violently within 10 years. On the PCL-R instrument, he was identified as scoring at the 79th percentile compared with other male prison inmates; it was noted his score was “marginally below the generally accepted cut-off of 30 for a diagnosis of psychopathy. Nevertheless, Mr. A.A.G.’s scores suggest considerable difficulty with antisocial thinking and behaviour.” He was also scored on the Static-99 instrument and was identified as falling within a moderate-low risk category for sexual recidivism. He was described as having better insight into his difficulties and as being remorseful regarding the index offense. He planned to continue with psychiatric follow-up with Dr. Braithwaite in the Forensic Program at the ROH upon release. u) Administrative Discharge Summary (ROH/SLVI) dated August 3, 2007, noted (the defendant) declined involvement in a substance use program, an anger management program and a self-regulation program. As well, it was reported his motivation decreased once his parole was denied. He initially agreed to attend a program for past sexual offending but declined once the group began. His attitude in psychotherapy was described as ultimately becoming negative.
[38] Dr. Woodside also conducted his own tests, reviewed tests conducted by Dr. Federoff and concluded as follows: a) Psychiatric Diagnoses: He said that in his opinion “there is little compelling evidence that (the defendant) is suffering from schizophrenia or another major mental illness. ….. It is more likely that he has continued to intermittently malinger symptoms of the same whenever he has felt this could be of some benefit to him (e.g. access to sedating medication, placement in different units while incarcerated, etc.).” Overall, while it is clear that (the defendant) did not benefit from ongoing education both in childhood and later in adulthood, I do not believe that intellectual deficits are a significant ongoing issues in terms of what leads to his offending behaviour although they may be relevant in terms of delivery of treatment (i.e. it may be of benefit to take into account specific weaknesses when attempting to provide treatment). Based on abundant evidence, (the defendant) does meet criteria for multiple substance use disorders, severe, relating to use of alcohol, marijuana and cocaine/crack cocaine primarily. As well, (the defendant) does clearly meet criteria for a diagnosis of Antisocial Personality Disorder and presents with significant psychopathic personality traits/features. He suffers from a paraphilic disorder (e.g. a non-consenting coercive sexual preference or pedophilia). His opinion predated Dr. Federoff’s report of phallometric testing. After reviewing the results of the phallometric testing, which he said is the best predictor, Dr. Woodside concluded the defendant suffered from pedophilia – a primary sexual interest in prepubescent and pubescent aged children. He said: All of these explained his sexual offending. In this case, he has a history of symptoms of conduct-disorder prior to the age of 15 and has been, in essence, continuously involved in criminal activity for most of his adult life during his periods out of custody. Overall, there appears to be very strong evidence in support of this diagnosis (antisocial personality disorder) for the defendant. I would note in passing that he also demonstrates significant psychopathic personality traits as will be further reviewed below under Risk Assessment. b) Criminogenic Variables: After reviewing the defendant’s background, he summarized the criminogenic factors as follows:
- History of physical abuse in childhood and possible sexual abuse in childhood
- Possible learning disorders and poor educational achievement
- Severe substance use difficulties;
- Impulsivity;
- Anger management deficits
- Deficiencies in conscience development related to dysfunctional personality traits (antisocial and psychopathic);
- Lack of supportive intimate or family relationships;
- Lack of steady employment and lack of any significant vocational skills; and
- Paraphilic disorders. c) Risk Assessment: He set out his approach as follows: An assessment of risk begins with an actuarial or statistical appraisal of risk, which takes into account some, or all, of the above-noted factors and provides a numerical anchor-point as regards risk. These anchor-points tend to be under-estimates of risk, as it is well known that individuals commit offences, both sexual and non-sexual, for which they are neither charged nor convicted. Once an actuarial estimate of risk is arrived at, one should then address those clinical, non-actuarial factors (dynamic factors) that may suggest upward or downward movement of the statistical appraisal of risk. Adjustment of an individual’s risk category on the basis of clinical or dynamic variables should only be undertaken very cautiously, as empirical research has consistently shown risk assessment tools to be superior to clinical opinion in offering a probability of criminal recidivism over a defined period of time. He found the defendant scored 32 out of a possible 40 points on the PCL-R which placed him at the 91st percentile of male prison inmates in the PCL-R standardization sample; that is, at least 90% of individuals in the standardization sample would have received a lower score and only 9% a higher score. The average score on the PCL-R in the prison samples is between 22 and 23. This score would be considered significantly elevated in terms of risk for re-offence. He went to say that the PCL-R is an important component of the SORAG which he says is one of the best instruments currently for providing an actuarial baseline of risk as regards violent re-offence amongst sexual offenders. He found the defendant’s score on the SORAG to be +24, which placed him at the 91st percentile – that is to say – higher than approximately 90% of sexual offenders in the development sample) and in the 7th of 9 ascending categories of risk on the instrument Among the development sample, 80% of offenders in the same risk category committed a new violent offence within 10 years of opportunity. He concluded that for the defendant the expected probability of violent recidivism is expected to range between 76% and 89%within 10 years of opportunity. Using the Static-99R instrument, which is designed to assess the risk for future sex offending, the defendant scored 5 out of a possible 12, which included a -3 because of his older age. This score placed the defendant higher than at least 87% of individuals in an updated development sample. Only 13% of sexual offenders in the development sample had a higher score. This placed him above average for risk for sexual recidivism. Dr. Woodside found the following risk-enhancing factors to be present for the defendant from the Risk for Sexual Violence Protocol (RSVP):
- Psychological coercion in sexual violence
- Physical coercion in sexual violence
- Escalation of sexual violence
- Attitudes that support or condone sexual violence
- Problems with intimate relationships
- Does have (serious) non-sexual criminality
- Problems with stress/coping
- Problems with self-awareness
- Problems resulting from child abuse (offender’s own history of being abused)
- Problems with substance use
- Problems with planning
- Chronicity of sexual violence (persistence and frequency of offending over time)
- Problems with treatment
- Problems with supervision
- Problems with employment Dr. Woodside found the following risk-enhancing factors were identified as possibly or partially present:
- Problems with non-intimate relationships
- Extreme Minimization or Denial of sexual violence
- Sexual deviance
- Does not have a major mental illness The following risk reducing factor was identified as
- Does not have violent or suicidal ideation Dr. Woodside concluded that “Overall, when combining and/or considering both clinical/dynamic and actuarial assessments of risk, I view Mr. A.A.G. as being at high risk for violent recidivism and moderate to high risk for sexually violent recidivism.” In addressing the test for LTO – reasonable possibility of eventual control – and addressing the factors, he concluded that for pedophilia, there is little or no benefit to be expected from psychological treatment. He opined that pharmacological treatment may be beneficial, but it is highly dependent on the willingness of the offender to take the treatment in an ongoing fashion, i.e. after the end of the supervisory period. And finally he said: “Overall, Mr. A.A.G.’s primary diagnoses (Antisocial Personality Disorder/very significant psychopathic personality traits, substance use disorders and possible paraphilic disorders) are considered difficult to treat, with a poorer prognosis being associated with each. The combination of each of these diagnoses renders the prognosis for successful treatment (a reduction in his risk for further offending) extremely poor when compared with other incarcerated offenders.” He noted that the defendant has shown no evidence from his past that he would accept treatment, continue treatment because he considered that he wanted to improve – as he has repeatedly said. The evidence is to the contrary. d) Summary: He said - “I believe there is significant reason for pessimism, from a psychiatric perspective, regarding the possibility of future manageability of this individual’s risk to violently/sexually reoffend within the community, even if strict conditions were put in place and Mr. A.A.G. were to agree to follow through with conditions and treatment recommendations.”
[39] Dr. Federoff agreed with Dr. Woodside’s evidence in many respects. He accepted Dr. Woodside’s summary of the offences and his summary of the various reports and assessments concerning the defendant. In his report he denied that the defendant suffered from pedophilia, but during cross-examination, he accepted that in fact the defendant met the definition. Dr. Federoff agreed with Dr. Woodside’s listing of the defendant’s criminogenic variables, his listing of the defendant’s risk-enhancing risk factors, and the risk-reducing factor. He disagreed with Dr. Woodside’s opinion that the defendant does not suffer from schizophrenia, but agreed that the difference of opinion is not pivotal.
[40] He agreed that the defendant meets the criteria for dangerous offender but is of the opinion that if the defendant were given a long term supervision period that under his treatment the risk identified could reasonably be controlled. His principal treatment modality is the Circle of Support program at the Royal Ottawa Hospital. The defendant told him that he would be prepared to attend and participate in the Circle of Support, and that he would agree to take medication to reduce his sexual urges. Dr. Federoff did agree that ultimately, it would be a question of whether the defendant would actually stick to any treatment. If the defendant decided to cease participation, it would be virtually impossible to compel treatment. Dr. Federoff said that the defendant’s pedophilia could be treated and he believed the treatment might reasonably be successful. However during cross-examination, he agreed that he was in the minority of forensic psychiatrists in holding the opinion that pedophilia could be successfully treated.
4. Positions of Crown and Defence
[41] The Crown and defence are in agreement that the defendant meets the criteria for dangerous offender but disagree concerning the LTO.
[42] The defendant contends that on the evidence there is a reasonable possibility of eventual control in the community as recommended by Dr. Federoff. She contends that because the defendant would finish a 10 year LTO at approximately age 74, burn out would by then have reduced his sexual urges to a controllable level. If before that time the defendant breached a condition, the Crown could bring a fresh DO application thereby providing adequate protection for the public.
[43] The Crown’s position is that the evidence supports a finding that during the defendant’s 15 years of treatment and programming there is no evidence beyond mere expressions of hope to support a conclusion that there is a reasonable possibility that the defendant’s risk to re-offend will be controlled within an appropriate time. The defendant meets the criteria for dangerous offender, but not the criteria for a long term offender designation.
5. Case Law
[44] R. v. Johnson 2003 SCC 46; R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686.
6. Mitigating and Aggravating Factors
[45] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.
[46] Mitigating factors are to be found on a balance of probabilities, while aggravating factors are to be considered after a finding beyond a reasonable doubt (s. 718.2 CCC). Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender.
[47] Evidence that the offender abused someone under the age of 18 is deemed to be an aggravating circumstance, as is abuse of someone in a position of trust (s. 718.2 CCC). While a lack of remorse is not an aggravating factor, an absence of remorse is not a ground for leniency.
7. Principles of Sentencing
[48] The fundamental purpose of sentencing and its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations and promotion of a sense of responsibility in the offender.
[49] When trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.(R. v. Woodward, 2011 ONCA 610 @ para. 76)
[50] A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender.
[51] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances.
[52] Where the sentencing judge is satisfied that the provisions of s. 753 (Dangerous Offender- indeterminate sentence) have been met, the judge should then consider the provisions of s. 753.1 (Long-Term Offender - determinate sentence) to determine the least restrictive penalty consistent with the protection of the public.
[53] The purpose of the long term supervision order 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 where the judge is satisfied that “there must be a reasonable possibility of eventual control of the risk in the community.” This test is to be contrasted with amendments in 2008 which changed the test to ‘reasonable expectation” standard; namely that a dangerous offender designation should not be made “unless (the court) is satisfied…that there is a reasonable expectation that a lesser measure…will adequately protect the public….” The standard is different and arguably has become a stiffer standard for the offender. [^5]
[54] The ‘reasonable possibility’ standard does not mean a mere possibility or a hope that the risk might be controlled. A complete elimination of risk is not required, but there must be proof that the nature and severity of the risk can be adequately contained. [^6]
[55] 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 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. Preventative detention simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased.
8. Reasons
[56] I accept, as do both experts, and as conceded by the defence, that the defendant meets all of the requirements for designation as a dangerous offender.
[57] I find the defendant meets the criteria in s. 753(1) (a) for dangerous violent offender. The first criterion in subparagraph (i) is that the offender engage in a “pattern of repetitive behaviour.” This pattern must include the predicate offence and it must demonstrate a failure on his or her part to restrain his or her behaviour. In Langevin, [^7], the Ontario Court of Appeal explained that a “pattern” may be established on the basis of one prior incident provided that it and the predicate offence display elements of similarity. As the number of prior incidents increases, the degree of similarity required decreases.
[58] The final component of the test is that the pattern of repetitive behaviour must reveal a likelihood that the offender will cause death, injury or severe psychological damage to others through failure to control his behaviour in the future.
[59] In this context “likelihood” has been interpreted as being something less than “certainty or probability.” [^8] Prescience is not required. Thus the Supreme Court of Canada has stated that “an individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future. [^9] In Payne, Justice Hill described the threshold as a “substantial risk” of re-offending. He noted: By its nature this standard is rather nebulous and requires a balancing of the offender’s background, prior offences, predicate offence, psychiatric/psychological condition and available treatment programmes.
[60] The defendant was convicted of several serious personal injury offences, including sexual assault, assault, assault with a weapon, and administering a drug to commit a sexual assault. He has shown a pattern of repetitive behaviour not only through the index offence that included two years of continuing offences against the victims, but previous convictions for similar offences – all of an assaultive a violent nature. His indifference to the offences and the victims is manifest. The massive amount of documentation shows little to no insight into the offences, his conduct, or the circumstances of the victims after his offences against them. The diagnoses of psychopathy and anti-social behaviour disorder are consistent with his indifference.
[61] The defendant was convicted of an offence – sexual assault- enumerated in s. 753(1)(b), and demonstrated a failure to control his sexual impulses.
[62] Dr. Woodside’s actuarial and clinical assessments corroborated for the most part by Dr. Federoff indicate the defendant is at high risk for further violent re-offence and moderate to high risk for sexually violent re-offence.
[63] This meets the criteria for dangerous offender designation both as dangerous violent offender and as a dangerous sexual offender.
[64] The issue before me is whether it would be inappropriate in all of the circumstances, to declare the defendant dangerous and thereby impose a period of indeterminate detention. It would be inappropriate in this case if I conclude that the sentencing options available under the long term offender provisions are sufficient to reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level. It would then be open to me to declare the defendant a long term offender. I accept that the standard for a long-term designation is that there must be a reasonable possibility of eventual control of the risk in the community. If I am satisfied beyond a reasonable doubt that there is a likelihood, not a certainty or a probability that the defendant will fail to restrain his behaviour in the future, then I must decline to order a long term offender designation. If I am in doubt concerning the LTO, then I should refuse to designate the defendant a long term offender. [^10]
[65] Dr. Woodside’s detailed review was adopted by Dr. Federoff in its entirety. They both agree that the defendant has paedophilia. Dr. Woodside expressed pessimism that the defendant’s criminal behavior can be controlled through treatment. Dr. Federoff believes his disorders can be treated, and specifically spoke of the Circles of Support. He acknowledged that the success of that treatment modality would be dependant on the defendant’s willingness to participate. Dr. Federoff acknowledged that the defendant could cease participation at any time, and could countermand a direction to share his medical treatments with Corrections Canada at any time. Dr. Woodside asked the defendant if he would be willing to take medication to control his sexual urges, and he commented that “would not be much of a life”.
[66] While, the Circles of Support proposed by Dr. Federoff may play a very useful role in the treatment of offenders, I am not satisfied that, absent evidence that the defendant has shown some insight into his various disorders and a genuine willingness to undertake treatment, COSA could play a useful role.
[67] At the conclusion of submissions, I asked the defendant if he had anything to say. He said “I really need help. I am not just saying it. I really mean it. I want to be a better person”. I am reminded that the defendant has expressed the same or similar sentiments in the past; and then has declined or refused to follow through with treatment.
[68] The defendant in submissions raised the spectre of the defendant having a life sentence if I do not accept the LTO designation. I accept that may be the case. However, I was impressed with the evidence of Ms. Maahs concerning the integrated programming that was recently adopted by Corrections Canada. According to her it means that each offender receives the same access to programming no matter the status or stage of the sentence. This was not always the case. I am encouraged that if the defendant takes advantage of the offered programming - which has not been the case in the past - then he has the chance of presenting himself to the Parole Board as the kind of person he says he would like to be. It is in his hands. He cannot blame anyone else - as has been the case in the past when he has consistently relied on manipulation, lies and deception.
[69] If I had concluded, which I have not, that there is a reasonable possibility that the harm by the defendant could be reduced to an acceptable level and had imposed a determinate sentence followed by a 10 year period of supervision, I would have imposed a global sentence of 14 years, on the basis of totality as follows: Count #1: 10 years; Count #2, #3, #4, and #5: 10 years each concurrent to Count #1; Count #6: 2 years consecutive to Count #1; Count #7: 2 years consecutive to Count #1; Count #8: 2 years concurrent to Count #6;
[70] I sentence the defendant to 2 years plus a day, consecutive on Counts #5, #6, and #8; all concurrent to the dangerous offender designation.
[71] There is agreement that the defendant has been in pretrial custody for 4 years. At 1 to 1.5, he would be credited with 6 years, leaving a balance of 8 years. I would have imposed the maximum 10 years supervision period to follow the determinate sentence. I would have adopted the conditions enumerated by Dr. Woodside in his report. [^11]
9. Ancillary Orders
[72] A DNA order.
[73] Prohibition against contact with any person under the age of 16, plus and prohibition of contact or communication with AW, SM and EM.
[74] I note that a lifetime firearms ban was made previously. I expand that to include a lifetime weapons ban.
[75] A SOIRA order is mandatory.
10. Final Decision
[76] I designate the defendant a dangerous offender; and decline to designate him a long term offender. Ancillary orders are as noted above, and any others after hearing submissions.
Honourable Justice Timothy Ray Released: June 16, 2017