R. v. R.D., 2017 ONSC 5258

CITATION: R. v. R.D., 2017 ONSC 5258

COURT FILE NO.: CR-15-7436

DATE: 20170914

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

R.D. Respondent

Lucas O’Neill, Counsel for the Crown

Corbin Cawkell, Counsel for the Defendant

HEARD: July 21, 2017

RULING RE: APPLICATION OF KIENAPPLE PRINCIPLE AND CROWN’S APPLICATION FOR A S. 752.1(1) ASSESSMENT (DANGEROUS OFFENDER ASSESSMENT)

PUBLICATION RESTRICTION NOTICE Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This Judgment complies with this restriction so that it can be published.

CHARNEY J.:

Introduction

[1] On April 28, 2017 the respondent was found guilty of the offences of sexual assault, sexual interference and invitation to sexual touching.

[2] The offences all relate to a single incident that occurred in 2002 or 2003. As the reasons for conviction (2017 ONSC 1856) fully set out the facts relating to these offences, only a summary reference to the facts is necessary.

[3] The respondent was supervising his son’s birthday party at the indoor pool in his home. He was the only adult in the pool area. The complainant, who was 8 or 9 at the time, was a guest at the pool party. The respondent directed the complainant to take a shower by the change room. After a few seconds the respondent followed the boy into the shower and proceeded to wash him and stood behind him. The respondent began touching the complainant and then took the complainant’s right hand and moved the boy’s hand up and down the respondent’s penis. The respondent then made a moaning sound and motioned as if he had ejaculated before leaving the complainant in the shower. The complainant reported the offence in 2015.

[4] Following conviction, the Crown brought an application for an order pursuant to s. 752.1(1) of the Criminal Code remanding the respondent for a period not exceeding sixty days for an in-custody psychiatric assessment to determine whether the respondent may be designated a dangerous or long-term offender.

[5] Concurrently the respondent brought an application to stay the counts of sexual assault and invitation to sexual touching on the basis of the Kienapple principle, so that the respondent would be sentenced only on the count of sexual interference.

[6] Argument on both applications was heard on July 21, 2017.

[7] The two applications may be related because sexual assault is expressly referenced within the definition of “serious personal injury offence” under s. 752 of the Code, but sexual interference is not. The Crown expressed some concern that if the count of sexual assault were stayed under the Kienapple principle it could prejudice the Crown’s application under s. 752.1(1) of the Code because sexual interference is not necessarily a serious personal injury offence, although it can be if certain criteria are met.

[8] Defence counsel took the position that sexual interference is more serious than sexual assault because it is sexual assault of a minor. He conceded that he could not take that position and then turn around and argue that because sexual assault was stayed under Kienapple the court was thereby precluded from considering the Crown’s s. 752.1 application.

[9] At the end of the argument on the Kienapple application I indicated to counsel that I would reserve my decision on that issue, and that, given the position of the defence, my decision on that issue would be without prejudice to the Crown’s s. 752.1(1) application.

[10] The Crown advised that it had retained a qualified forensic psychiatrist to conduct the assessment on August 1, 2017 if it was successful on the s. 752.1(1) application. Accordingly, the Crown was hoping for a decision on that issue prior to August 1, 2017. Following oral argument on July 21, 2017, I dismissed the Crown’s s. 752.1(1) application from the bench, and advised that written reasons would follow.

[11] This decision includes my reasons for dismissing the Crown’s s. 752.1(1) application and my decision on the Kienapple application.

A. Kienapple Application

[12] The Kienapple principle bars multiple convictions for two or more offences arising out of the same criminal act or transaction in circumstances where the essential elements of the offences are meant to cover the same wrong. In the present case the three counts are all variations of sexual assault and arise out of the same transaction. The three counts contain substantially the same essential elements. Crown and defence agree that the Kienapple principle applies, and the issue in this case is which of the three counts should be stayed.

[13] The defence argues that the counts of sexual assault and invitation to sexual touching should be stayed pursuant to the Kienapple principle. The defence argues that sexual interference is sexual assault against a minor, and is therefore the more serious of the two offences.

[14] While sexual interference and invitation to sexual touching may be distinct offences in many cases, in the circumstances of this case they were both part of a single transaction and the same conduct grounds both charges. The invitation to sexual touching was the continuation of the sexual assault and was not a separate act.

[15] Although the Crown agrees that the Kienapple principle applies, he argues that the counts of sexual interference and invitation to sexual touching should be stayed. The Crown is candid that his position is based primarily on the fact that sexual assault is expressly included as a “serious personal injury offence” under s. 752 of the Code, but sexual interference is not.

[16] Most of the case law on this issue favours staying the charge of sexual assault. In R. v. M (R.M.), 1998 CanLII 1659 (ON CA), 1998 CarswellOnt 253 and R. v. M (S.J.), 2009 ONCA 244, the Ontario Court of Appeal applied Kienapple and stayed sexual assault charges involving a minor and upheld convictions for sexual interference. In neither of these cases did the Court of Appeal explain how it chose between the two offences.

[17] An analysis of this issue was undertaken by Read J. of the Court of the Alberta Queen’s Bench in the case of R. v. Innerebner, 2010 ABQB 188, in which the accused was convicted of both sexual assault and sexual interference. That Court noted that in 2005 Parliament added a mandatory minimum sentence to the offence of sexual interference, but there was no mandatory minimum for sexual assault. Thus, while both offences carried the same maximum sentence, Parliament’s imposition of a minimum sentence for sexual interference was an indication that sexual interference is the more serious of the two. The Court concluded, at para. 35:

Because s. 151 carries a minimum sentence and s. 271 does not, I have concluded that Parliament intended to indicate that the more serious charge is that of sexual interference. Therefore, I have concluded that for offences occurring after November 1, 2005 (the date of the addition of the minimum sentence), where, as here, the offender has been convicted of both sexual assault and sexual interference, the appropriate course of action is to stay the less serious charges of sexual assault and enter the convictions for sexual interference where the legal and factual nexus requirements have been met.

[18] The Court also concluded that, independently of the minimum sentence, sexual interference was the more serious of the two offences because it was essentially sexual assault of a minor. The Court stated at para. 36:

Even if I am wrong, however, and Parliament did not intend to indicate merely by imposing a mandatory minimum sentence that the more serious charge is that of sexual interference, to my mind, sexual interference, which presupposes a sexual act on a child by an adult, cannot be said to be less serious than sexual assault. Furthermore… the sexual interference charges here more accurately describe the offence perpetrated by this offender in respect to each of the complainants.

[19] I note that the offence in this case took place before the 2005 Code amendments relied upon by the Court to reach its decision in the Innerebner case, and to that extent the analysis in that case is inapposite. The law was amended again in 2012 when a mandatory minimum sentence of one year was imposed on sexual assault, sexual interference and invitation to sexual touching (R. v. Hussein, 2017 ONSC 4202 at para. 2).

[20] The Hussein case involved the same three offences as the case before me. The Crown in Hussein took a different position than the Crown in the present case, and agreed with defence that the counts of sexual assault and invitation to sexual touching should be stayed, and a conviction should be entered in relation to the sexual interference offence.

[21] In Hussein Code J. notes that he did not hear any adversarial argument on this issue, but he decided to follow the “well-reasoned judgment” of LeMay J. in the case of R. v. F.L., 2016 ONSC 1215. In that case LeMay J. rejected the defence argument that sexual assault was a more serious charge than sexual interference, and concluded that sexual interference was the more appropriate count because it was a more precise and complete explanation of the crime that was committed in that case. LeMay J. stated at paras. 21 – 25:

The offender argues that a conviction should only be entered for sexual assault, and that the sexual interference and invitation to sexual touching charges should be stayed. The Crown argues that, if a conviction is only going to be entered on one charge, it should be the sexual interference charge. I agree with the Crown.

The offender argues that the sexual assault charge is the most serious of the charges. I do not agree for two reasons. First, given the age of the complainant and the fact that the Crown has proceeded by way of indictment, the sentences for both offences are the same. Second, one of the required elements of the sexual interference charge is that the victim must have been under the age of fourteen at the time that the assaults took place. This is not an element of the offence of sexual assault.

This brings me to why a conviction for sexual interference is more appropriate in this case. In my view, the sexual interference charge is a more precise and complete explanation of the crime that was committed in this case. It includes a recognition that the crime was committed against a victim who was a child. This is, in my view, a key element of this case.

[22] The same conclusion was reached by K.L. Campell J. in R. v. F.C., 2016 ONSC 6059 at para. 2:

The parties agree that the rule against multiple convictions requires that the finding of guilt for the offence of sexual assault be conditionally stayed, but that convictions should be entered with respect to the two remaining offences. I agree. Given the applicable mandatory minimum sentences for the sexual interference and invitation to sexual touching offences, and in light of the same maximum sentence for all three offences, it is the finding of guilt for the sexual assault offence that must be conditionally stayed. (citations omitted)

[23] The Crown found one case in which the count of sexual interference was stayed and a conviction entered for sexual assault: R. v. S.M., 2012 ONCA 762 at para. 4. While the Court of Appeal notes that this is what the trial judge did, this was not an issue on the appeal and the Court does not consider whether this was the correct choice.

[24] I would expect the Crown to take a position consistent with its position in Hussein, F.L. and F.C. The Crown, however, argues that this case is unique because the Code treats convictions for sexual assault somewhat differently than convictions for sexual interference with respect to dangerous offender applications. Since the Crown intends to make a dangerous offender application, this difference may become important.

[25] The difference in treatment between sexual assault and sexual interference begins with the application of s. 752.1(1) of the Code, which states:

On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. (emphasis added)

[26] Section 752 of the Code includes two different definitions for the term “serious personal injury offence”. These are referred to as paragraph (a) and paragraph (b), and provide as follows:

serious personal injury offence means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

[27] As indicated above, the Crown points out that sexual assault is expressly referenced within the definition of “serious personal injury offence” under paragraph (b) of the definition of that term in s. 752 of the Code, but sexual interference is not.

[28] While sexual interference is not found among the offences listed in paragraph (b) of the definition of “serious personal injury offence”, it may still qualify under paragraph (a) if it involved conduct that was, inter alia, likely to inflict severe psychological damage on another person. The Crown’s position is that the conviction in this case would qualify as a “serious personal injury offence” under paragraph (a)(ii) because of the likelihood of severe psychological damage inflicted on the victim combined with the fact that the offence of sexual interference has a maximum penalty of ten years. As indicated below, I accept this position.

[29] A conviction for a “serious personal injury offence” is not the only basis upon which the Crown can bring an application for an assessment under s. 752.1(1) of the Code. The Code also permits the Crown to bring a s. 752.1(1) application if the offender is convicted of “an offence referred to in paragraph 753.1(2)(a) of the Code” and the offender might be found to be a long-term offender under s. 753.1. Section 753.1(2)(a) in turn refers to a long list of offences, including sexual interference under s. 151 of the Code (as well as sexual assault under s. 271). Thus, for the purposes of a long-term offender designation there is no difference in treatment between sexual assault and sexual interference.

[30] Section 753(1) of the Code deals with dangerous offenders. That provision makes a distinction between the definitions in paragraph (a) and paragraph (b) of s. 752. Pursuant to s. 753(1)(a) of the Code, an offender convicted of a serious personal injury offence as described by paragraph (a) of the definition in s. 752 shall, following the filing of an assessment report, be found to be a dangerous offender if the following criteria are met:

[T]he offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing:

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

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

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

[31] Pursuant to s. 753(1)(b) of the Code, an offender convicted of a serious personal injury offence as defined by paragraph (b) of the definition in s. 752 shall, following the filing of an assessment report, be found by the court to be a dangerous offender if the following criteria are met:

[T]he 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.

[32] The Crown argues that one of the important factors to consider in applying Kienapple is the consequences of the offence, and that under s. 752.1 the consequences of a conviction for sexual assault is potentially more serious than a conviction for sexual interference because the former is by definition a “serious personal injury offence” while the latter must meet certain criteria such as conduct involving violence, or that is likely to endanger life, health or safety, or inflict serious psychological damage, before it fits the definition of “serious personal injury offence”.

[33] In addition, s. 753(1) treats the two definitions of “serious personal injury offence” differently, and, the Crown contends, it may be that an offender convicted of sexual assault would more easily meet the dangerous offender criteria under s. 753(1)(b) than an offender convicted of sexual interference would meet the criteria under s. 753(1)(a).

[34] I understand the Crown’s concern. It would seem counterintuitive that staying the sexual assault charge and entering a conviction for the ostensibly more serious charge of sexual interference has the result of making it more difficult for the Crown to meet the dangerous offender criteria in s. 753(1).

[35] It is by no means clear to me, however, that the dangerous offender criteria established under s. 753(1)(b) would be easier for the Crown to meet than the criteria listed under s. 753(1)(a). In fact, the criteria under s. 753(1)(a)(i) are substantially similar to those in 753(1)(b), and it is likely that any person meeting the criteria in one would also meet the criteria in the other.

[36] The bottom line is that a conviction for either sexual assault or sexual interference may lead to a s. 752.1(1) assessment and result in a finding that the offender is a dangerous offender under s. 753(1). The fact that the definition of “serious personal injury offence” does not automatically include sexual interference does not, in this case, lead to a conclusion that sexual assault is the more serious of the two offences.

Conclusion Re: Kienapple Application

[37] Accordingly, I do not find that this case is distinguishable from cases such as Hussein, F.L. and F.C., and I will follow those decisions for the reasons set out by LeMay J. in F.L. and adopted by Code J. in Hussein. On that basis the counts of sexual assault and invitation to sexual touching are stayed pursuant to the rule in Kienapple, and a conviction will be entered in relation to the count of sexual interference.

B. Crown’s s. 752.1 Assessment Application

[38] The Crown applies for an assessment pursuant to s. 752.1(1) of the Code, which provides:

On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

[39] Pursuant to this provision the court shall grant the application if there are “reasonable grounds to believe” the offender “might be found” to be a dangerous offender or a long-term offender. The threshold for granting this assessment, which is part of the sentencing hearing, is low with the focus on whether, given the totality of the circumstances of the case, there is a “real possibility” as opposed to a “probability”, that the offender could be designated either as a dangerous or long-term offender.

[40] The respondent takes the position that the Crown has failed to meet this test in this case, and that the Crown’s application should be dismissed.

[41] While the threshold for the Crown to meet under s. 752.1(1) is low, the granting of an order for an assessment is not automatic. In R. v. Naess, 2004 CanLII 53065 (ON SC) Hill J. reviewed a number of decisions under that provision and concluded, at para. 77:

I am inclined to the view that s.752.1(1) obliges the court, on the totality of the circumstances, to determine whether reasonable grounds exist, in the sense of a real possibility the accused will be found to be a dangerous offender. As minimal as the standard is, it is something more than simply any possibility or a remote prospect only. The intrusion of the assessment frequently with prolonged custody, and its availability to the Crown in sentencing (s.752.1(2)), demands nothing less.

[42] Similarly, in R. v. Norman, 2014 ONSC 4769, Goldstein J. stated (at para. 14):

[T]he court must guard against the possibility that the bar is set so low that any person with a prior violent criminal record could be subject to a dangerous offender or long-term offender application.

[43] In order to meet the threshold set out in s. 752.1(1) the Crown must satisfy the court that:

• the respondent has committed a “serious personal injury offence” or an offence referred to in paragraph 753.1(2)(a)
• there are reasonable grounds to believe that the respondent “might be found” to be either a dangerous offender under s. 753 or a long-term offender under s. 753.1 of the Code.

Has the respondent committed a “serious personal injury offence”?

[44] I am satisfied that the respondent has committed a “serious personal injury offence” as defined in paragraph (a)(ii) of the definition of that term in the Code, that is:

(a) an indictable offence… involving

(ii) conduct …inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or…

[45] The sexual interference committed by the respondent in this case was of such a nature that it could likely inflict severe psychological damage on an eight-year-old child placed in that situation. At this stage in the analysis that is sufficient to satisfy this part of the test (Norman, at para. 17). Accordingly, s. 753(1)(a) of the Code applies in this case.

[46] While not strictly necessary for the balance of my analysis, I will also consider the application of s. 753(1)(b) of the Code in the event that my conclusion in relation to the application of the Kienapple principle was incorrect. As indicated above, defence counsel conceded that my decision to stay the charge of sexual assault under Kienapple would not preclude my consideration of s. 753(1)(b) of the Code.

Are there reasonable grounds to believe that the respondent “might be found” to be a dangerous offender under s. 753?

[47] The next question is whether there are reasonable grounds to believe that the respondent “might be found” to be either a dangerous offender or a long-term offender. The Crown contends that there are two specific routes in which it is possible that the respondent might be found to be a dangerous offender, namely s. 753(1)(a)(i) and s. 753(1)(b). For ease of reference I will reproduce the relevant portions of those provision again:

Section 753(1)(a)(i)… the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour 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,

Section 753(1)(b)… 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.

[48] The Crown submits that the respondent might be found to be a dangerous offender under s. 753(1)(a)(i) based on the following:

(a) The offender has a sexual attraction to prepubescent and pubescent males.

(b) There is a pattern of the accused placing himself in situations where he will isolate and have an opportunity to sexually exploit vulnerable young boys.

(c) His first conviction in 1989 involved the sexual exploitation and making obscene material in relation to a 12-year-old boy. The respondent joined the Big Brother organization and groomed the victim for about 12 months. He had the victim remove his clothing and touch himself while he took pictures of the act. He was sentenced to 75 days intermittent for sexual exploitation and 45 days concurrent for making obscene material.

(d) The second offence, chronologically, was the predicate offence, which was committed in 2002 or 2003.

(e) His second conviction in 2006 involved possession of child pornography and making child pornography. The facts to which the accused pled guilty were that his wife found child pornographic images on a computer in her home. The execution of a search warrant on a variety of different computers and memory devices revealed 15,000 child pornography images as well as a number of images of child nudity. Some of these pictures were determined to be of the accused’s son, who was sleeping when the photos were taken. He was sentenced to 90 days intermittent and probation for possession and 1 year 9 months conditional sentence and 3 years probation for making.

(f) His third conviction was in 2012 for possession of child pornography. He received a 2 year penitentiary term and 3 years probation.

(g) Most recently the respondent was charged with breach of recognizance and breach of probation. The respondent was prohibited from accessing the Internet for any reason, and there is evidence that he made efforts to install Internet in 2016. At the time his computer was seized, and the police found 300 images on his hard drive, but I am advised that no charges were laid because the images were not considered child pornography.

[49] The Crown has submitted psychological assessments of the respondent for risk of sexual recidivism performed when the respondent was incarcerated in 2012. This report concluded that the respondent presents a moderate-high risk for future sexual recidivism.

[50] The Crown submits that the respondent’s record of offences and his sexual history shows a failure to restrain his sexual behaviour towards vulnerable young boys and that there is a likelihood that he will fail to restrain this behaviour in the future.

[51] The Crown advances a similar argument with respect to s. 753(1)(b). All of the offences listed above, including the predicate offence, relate to the respondent’s “conduct in any sexual matter”. The Crown argues that in each of those cases the respondent has shown a failure to control his sexual impulses, and there is a likelihood that he will “cause injury, pain or other evil” through failure in the future to control his sexual impulses.

[52] The respondent argues that the predicate offence does not fit a pattern of repetitive behaviour. Even taking into account the 1989 conviction, the predicate offence is the only one of the offences in which there was physical contact with the victim. A single act of sexually assaulting a child, which happened almost 15 years ago, does not qualify as a pattern of repetitive behaviour under s. 753(1)(a)(i). While the other convictions all relate to sexual exploitation of children, there is no pattern of repetitive behaviour given the disparate nature of the offences charged.

[53] The respondent also argues that a dangerous offender designation is “narrowly targeted to a small group of offenders” (R. v. Szostak, 2014 ONCA 15, at para. 54) and that while possessing child pornography is not a victimless crime, it is not likely to cause death or injury or inflict severe psychological damage on other persons. Nor, to use the words of s. 753(1)(b), is simple possession likely to cause “injury, pain or other evil”. The possession of child pornography, however reprehensible, is not a violent or dangerous act.

[54] The respondent argues that assuming that the making (as opposed to possession) of child pornography may inflict severe psychological damage, the respondent’s record is marked by significant gaps and a de-escalation of severity. He is now 58 years old, and his most serious conviction is the predicate offence that occurred almost 15 years ago. Even the offence of making child pornography was 10 years ago.

[55] Finally, the respondent relies on a subsequent risk assessment prepared for the Edmonton Police Service immediately prior to his release from prison in June 2014. This report concluded that as a result of his completion of treatment programs offered while in prison he showed “a marked improvement in all areas of identified risk” and was considered to be only a moderate risk to the community. This report noted that the respondent was bound by restrictive probation conditions placed on him during sentencing. These conditions include a lifetime prohibition on involvement with persons under 16 years of age and lifetime registration under the Sex Offender Information Registry Act, SC. 2004, c.10.

Analysis – Dangerous Offender, s. 753

[56] This case differs from most dangerous offender applications because in most such applications the predicate offence will be the most recent offence chronologically, and the pattern of offences is analysed by reviewing the offender’s past offences as compared to the predicate offence. This analysis is used to forecast the likelihood of the offender inflicting death, injury or severe psychological damage to others in the future.

[57] In the present case the predicate offence was committed in 2002 or 2003, and the only offence committed before that date was the conviction in 1989. It is now 2017, and we know what offences the respondent has actually committed in the 15 years since the predicate offence. It is on the basis of the respondent’s actual record in the years subsequent to the predicate offence that I conclude that the Crown has failed to satisfy me that there are reasonable grounds to believe that the respondent “might be found” to be a dangerous offender under s. 753. On the record before me, I cannot find that there is a real possibility that it will be found that there is presently a substantial risk of the respondent reoffending in the same way in the future.

[58] We know that subsequent to the predicate offence in 2002/3 the respondent was convicted of making child pornography in 2006. These two offences occurred within a short time of each other.

[59] Both the predicate offence and the making child pornography offence occurred in the respondent’s home when he was supervising his own children and their friends. Assuming that this qualifies as “a pattern of repetitive behaviour”, the respondent has not lived with his family since his arrest in 2006, and he is therefore no longer in a position to be alone with or exploit children in that manner. This makes it unlikely that the respondent will repeat this pattern of behaviour in the future. Indeed, the only evidence before me is that the respondent has not committed this type of offence in more than a decade. To the extent that this was part of his pattern of behaviour, it is a pattern that ended with his arrest in 2006.

[60] The respondent was also convicted of possession of child pornography in 2012, but that charge did not involve the respondent placing himself in situations where he can isolate and have an opportunity to sexually exploit vulnerable young boys. I agree with the respondent that the possession of child pornography does not fit the pattern of repetitive behaviour required by s. 753(1)(a)(i).

[61] In Norman, Goldstein J. stated:

What constitutes a “pattern of repetitive behaviour?” The pattern of repetitive behaviour, including the predicate offence, must contain “enough of the same unrestrained elements of dangerous conduct” to predict that the offender will likely re-offend in the same way in the future. The offences do not, however, need to be the same in every detail: R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963, 287 O.A.C. 82 (C.A.) at para. 40.

[62] The possession of child pornography in 2012 did not, in my view, contain “enough of the unrestrained elements of dangerous conduct” to predict that the respondent will likely commit a sexual assault against a minor in the future.

[63] For the same reasons I would reject the Crown’s position that there is a real possibility that the respondent would be found to be a dangerous offender under s. 753(1)(b). I do not see how the Crown can show a likelihood that the respondent will cause “injury, pain or other evil” to other persons through failure in the future to control his sexual impulses when the respondent has not caused “injury, pain or other evil” to persons since his 2006 conviction for making child pornography. I accept the position that the simple possession of child pornography is not likely to cause “injury, pain or other evil” within the meaning of s. 753(1)(b). While that phrase is very broad, I interpret it to have essentially the same meaning as the phrase “injury… or … severe psychological damage” in s. 753(1)(a).

[64] The possession of child pornography is a serious crime for which the respondent was sentenced in 2012 to a 2-year penitentiary term, 3 years probation and various ancillary orders that will last his lifetime. Accessing child pornography creates a market that in turn creates incentive for other people to produce pornography. But possession of child pornography is not sexual assault, and does not, by itself, lead to a reasonable inference that there is a real risk that the respondent will sexually assault children, or demonstrate an inability to control his sexual impulse to sexually assault children. There is nothing in the record before me to suggest that the respondent has sexually assaulted any child since 2002/3.

[65] Finally, the Edmonton Police Service Report dated June 2014 assessed the respondent as a moderate risk to the community. Had the predicate offence been committed subsequent to the 2012 conviction for possession of child pornography, I would have had no hesitation in finding that the Crown had met the test for an assessment pursuant to s. 752.1 of the Code. This would be evidence of escalation and indicative that the 2014 report seriously underestimated the risk to the community. But the predicate offence occurred more than ten years before the 2014 report was prepared, and while the authors of that report did not know about the predicate offence, they knew and considered the facts relating to the 1989 and 2006 convictions.

[66] For these reasons I conclude that the Crown has failed to satisfy me that there are reasonable grounds to believe that the respondent “might be found” to be a dangerous offender under s. 753.

Analysis – Long-Term Offender, s. 753.1

[67] The Crown submits that even if the court is of the view that it is unlikely that the respondent will be declared a dangerous offender, an assessment should still be ordered because the respondent might be designated to be a long-term offender pursuant to s. 753.1 of the Code. Section 753.1(1) provides:

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.

[68] The Crown takes the position that there is a possibility that the respondent might meet each of these three criteria. I agree with the Crown that there is a real possibility that the respondent might meet criteria (a) and (c), my difficulty is with criterion (b): is there a real possibility that, if an assessment is ordered, a court will find a substantial risk that the offender will reoffend?

[69] Section 753.1(2) sets out the criteria a court is to apply to be satisfied that there is a substantial risk that the offender will reoffend. That provision states:

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 section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography),… 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.

[70] Paragraphs (a) and (b) must be read conjunctively – the requirements of both paragraphs must be met to satisfy the long-term offender criteria. Subparagraphs (b)(i) and (b)(ii) must be read disjunctively – the offender must meet one or the other.

[71] In this case the respondent meets the criterion in paragraph (a) – he has been convicted of sexual interference under s. 151 of the Code. The issue is whether he might meet either of the criteria in paragraph (b).

[72] It is immediately apparent that paragraph 753.1(2)(b)(i) is virtually identical to the test set out in s.753(1)(a)(i) for a finding that the offender is a dangerous offender.

[73] Similarly, paragraph 753.1(2)(b)(ii) is virtually identical to the test set out in s. 753(1)(b).

[74] Given that identity of language, my analysis and conclusions with regard to s. 753(1)(a)(i) and (b) (see paras. 56 – 65) apply equally with respect to s. 753.1(2)(b)(i) and (ii).

[75] In this regard I adopt the analysis of Nordheimer J. in R. v. P.H., [2005] O.J. No. 5698; 2005 CanLII 49419 (ON SC), where he stated with reference to s. 753.1:

Given the acknowledged interrelationship between the two designations, if the dangerous offender designation is intended to apply only to a small group of highly dangerous criminals then it follows that the long-term offender designation ought to be similarly restrictive.

[76] Accordingly, I find that the Crown has failed to satisfy me that there are reasonable grounds to believe that the respondent “might be found” to be a long-term offender under s. 753.1 of the Code.

Conclusion Re: Crown’s s. 752.1 Application

[77] The Crown’s application for an assessment under s. 752.1 is dismissed.

Justice R.E. Charney

Released: September 14, 2017

CITATION: R. v. R.D., 2017 ONSC 5258

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Applicant

– and –

R.D. Respondent

RULING RE: APPLICATION OF KIENAPPLE PRINCIPLE AND CROWN’S APPLICATION FOR A S. 752.1(1) ASSESSMENT (DANGEROUS OFFENDER ASSESSMENT)

Justice R.E. Charney

Released: September 14, 2017