CITATION: R. v. K.C., 2017 ONSC 5803

PERTH COURT FILE NO.: CR895-13

DATE: 2017/09/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

K.C.

Respondent

Robert Corbella, for the Crown

Lorne J. Goldstein, for the Respondent

HEARD: September 25, 2017

DECISION ON SENTENCE – DANGEROUS OFFENDER APPLICATION

PHILLIPS, J.

[1] These are my reasons for judgment on a dangerous offender application brought by the Crown pursuant to s. 753 of the Criminal Code. K.C. was convicted on January 27, 2015 after trial before a jury in Perth of 8 offences - four counts each of sexual assault contrary to section 271 and four counts of sexual interference, contrary to section 151. The charges on the indictment span dates from January 1, 2004 to November 1, 2012.

[2] As a preliminary matter, I will note that Count 4, relating to a sexual assault of K.N., is stayed pursuant to the rule against multiple convictions (see: Kienapple v. R, 1974 14 (SCC), [1975] 1 S.C.R. 729).

The Predicate Offences:

[3] The facts underlying the predicate offenses involve four young girls. Two are K.C.’s daughters, while two are his nieces. The convictions make clear that in accordance with their ability to accept some, none or all of any witness’s evidence, the jury accepted the following facts and, coincidentally, I find them to have been proved by the Crown beyond a reasonable doubt:

a. J.N. is K.C.’s niece. She was born in […] 1999. The counts on the indictment relating to her span from January 1, 2004 to December 31, 2010;

b. When J.N. was somewhere between kindergarten to grade 2 or 3, she had occasion to sleep over at her uncle K.C. and aunt C.K.’s house. Because there was a shortage of beds, J.N. and her sister K.N. were put to sleep on the couch in the living room. K.N. is roughly 4 years younger than J.N.;

c. At some point in the night, J.N. saw K.C. approach the couch. She was awake yet was feigning sleep so as not to be in trouble. J.N. observed K.C. pull the covers away from K.N., who was asleep, and then slowly pull down her pants and proceed to take photographs of her privates. J.N. saw fit to nudge her little sister with her leg in an effort to get her to turn over so as to thwart K.C.’s intentions. K.N. did indeed turn over. This resulted in K.C. turning his attention toward J.N., who was still feigning sleep. K.C. slowly pulled down J.N.’s pyjama pants and took pictures of her in her underwear. J.N. tried to flip herself over but K.C. grabbed her and held her still. K.C. left on his own accord;

d. Another incident occurred when J.N. was in grade 4 and also involved a sleep over at her uncle K.C.’s home. This time she was put to bed in a bedroom. At some point during the night K.C. came into her bedroom and kneeled next to her bed. He then slowly pulled her pants down to her knees and brought his fingers to her vagina and started “poking around”, staying “on the outside.” J.N. was frightened and simply laid still. On his own accord, K.C. eventually pulled her underwear and pants back up, put the blanket back over her and left;

e. T.C. is K.C.’s natural daughter, born in 2005. T.C. reports that her daddy, K.C., once touched her vaginal area with his hand over her clothes. T.C. remembers that she told her father to stop touching her that way. In fact she remembers that she threatened to scream. T.C. reports that K.C. prevented her from doing so by covering her mouth with his hand “so that mommy wouldn’t hear”;

f. T.C. also disclosed that her father once put his penis in her mouth. This occurred in her bedroom, a room she shared with her younger sister, K.C.2, born in 2002. She remembers that she was sitting in a chair with K.C. standing over her. Her evidence included the fact that, in the context of her father putting his penis in her mouth, “white stuff” came out of his penis and landed on her arm. T.C. went on to describe how the white stuff had the liquid consistency of what might come out of one’s nose after a sneeze, or like “snot”;

g. T.C. also testified that she saw her father pull her sister’s pants down. It was obvious to T.C. that her father was doing this for an improper purpose. Indeed, T.C. remembers that K.C.2 was saying “no, don’t do that.” T.C. went and told her mother, C.K., who came and told K.C. to stop;

h. T.C. also saw her father put his penis into K.C.2’s mouth. K.C. had told her to leave the bedroom as he wanted to speak to K.C.2 alone. Suspecting that something was about to happen, T.C. opened the door a crack and peeked in;

i. K.C.2, aged 6, did not testify at trial. Nonetheless, pursuant to R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, evidence was put before the court that in December 2012, K.C.2 was playing in the sand in her school’s playground while being observed by an educational assistant. At one point another child threw sand which ended up in K.C.2’s mouth. The educational assistant said something to the effect of “that can’t taste good” to which K.C.2 replied to the effect of “it’s yucky like when daddy put his penis in my mouth.”

Relevant Evidence in Respect of Past Offences:

[4] K.C. has a criminal record that is short but nonetheless impactful and revealing. The following information about his antecedents is properly before the court given that the underlying convictions were established to the criminal standard of proof. In addition to the transcripts of the various court proceedings and associated court process documents, I am satisfied that the pre-sentence reports and psychiatric reports made in respect of the prior convictions are properly admissible on this application. They are clearly relevant as they are evidence of K.C.’s prior correctional and mental health treatment history. While I am aware that a dangerous offender application is a sentencing hearing and that the rules of evidence must be strictly applied, I conclude that the documents tendered are admissible hearsay. The common law allows hearsay to be admitted at a sentencing hearing, provided it is "credible and trustworthy" and provided the Crown discharges the burden of proving any disputed aggravating factors at the normal criminal standard of proof beyond reasonable doubt. I am satisfied that the records tendered by the Crown are "credible and trustworthy.” They were prepared contemporaneously by professionals who were carrying out important and responsible public duties. That, as well as the position taken by the parties on this hearing, compels me to consider the reports as admissible evidence.

February 14, 2002 - Pembroke - K.C. convicted of Sexual Assault

[5] In March of 2001, K.C. was staying at a friend’s. The home he was visiting contained a four-year-old girl. Once everyone had gone to bed, K.C. snuck into the girl’s bedroom. He proceeded to touch his hand directly upon her vagina for approximately 30 minutes. In fact, he did this to such a degree that he caused significant redness to her genitalia which was still visible the next day when she told her grandmother what had happened. He then left the room aroused and masturbated.

[6] A report, dated August 2001, was prepared for the court by Dr. John Bradford of the Royal Ottawa Hospital which notes that K.C. has “… fantasies which include primarily 4 to 8 -year-old pre-pubertal girls….” Dr. Bradford formed the impression that K.C. suffers from pedophilia.

[7] A pre-sentence report was prepared. Interviewed by a probation officer in that context, K.C. asserted that he is attracted to youth, especially 12 to 14-year-old girls.

[8] The court imposed a nine-month conditional sentence, followed by three years of probation. In addition to a curfew, the probation order included the following term: “You are not to associate with or be in the presence of any children under the age of 16 unless the child’s parent or guardian is present.” Additionally, an order under s. 161 of the Criminal Code was made prohibiting K.C. from attending “any public park or public swimming area where persons under the age of 14 are present or can reasonably be expected to be present, or a day care centre, school ground, playground, or community centre….”

June 22, 2004 – Pembroke – K.C. convicted of Breach of Probation

[9] On February 2, 2004, K.C. was pulled over driving as a suspended driver at 2:00 a.m. When asked by police about his apparent breach of curfew, K.C. professed a belief that the curfew was no longer in effect. Later, in pleading guilty to the offense, K.C. acknowledged that that had been a lie.

[10] The court imposed a $500 fine.

March 22, 2006 – Ottawa – K.C. convicted of Sexual Interference and Breach of Probation

[11] On or about September 1, 2004, K.C. befriended a 12-year-old girl. K.C. was a friend of the girl’s extended family. He saw fit to interact with her regularly, outside the presence of anyone else. It would appear that the pair developed a profound relationship. The court heard of emails wherein they professed their love for each other. K.C. told the girl that she was not to tell anyone because he was not to be in contact with anyone under the age of 16. He told her that he would get in trouble if she told anyone. The sentencing judge found that “he led her to believe that they were boyfriend and girlfriend and that eventually they were going to get married. In a sense, over the course of this “relationship”, he was grooming or manipulating her into the position of believing that they were a couple.” Eventually, the girl’s grandmother became concerned upon seeing her sitting on K.C.’s lap in a car. The girl reported that her relationship with K.C. had involved him kissing her, as well as fondling her breasts and buttocks.

[12] As part of the sentencing process, the court ordered that K.C. undergo psychiatric assessment. Both Drs. Bradford and Federoff, of the Royal Ottawa Hospital, provided opinions in that regard. After comprehensive analysis, including penile tumescence testing, both forensic psychiatrists diagnosed K.C. as suffering from pedophilia.

[13] Dr. Federoff, noting that K.C. “clearly needs a higher level of supervision than he is currently receiving”, suggested that K.C. should give serious consideration to treatment with an anti-androgen medication. The doctor concluded: “My strongest recommendation is that [K.C.] should never have unsupervised contact with children, male or female.”

[14] Dr. Bradford informed the sentencing judge as follows:

From a risk assessment standpoint, the fact that he was sexually abused, the fact that he has been separated from his biological parents since age 16, more or less, his gross behavioural problems at times, all point toward significant risk in terms of future violence and sexual offense recidivism. Further, by definition, he is a recidivist sexual offender with his conviction on the index offense before the court. Further, as I understand it, the index offenses occurred at a time when he was on probation supervision.

Certainly, there is a moderate risk in relation to sexual offense recidivism. Even though [K.C.] is well motivated and appears to be co-operative and he has a history of remaining in treatment and responding to treatment, it is important and significant that he remains in treatment. In my opinion, he needs to be on a pharmacological treatment approach indefinitely, given the nature of the developmental delay and how this impacts on his judgment as well as increasing impulsivity.

[K.C.] is by definition, a sexual offender recidivist. He also recidivated while on treatment with Dr. Federoff, and while on probation. These are clearly negative issues with reference to future sexual offense recidivism that need to be taken into consideration by the Court.

[15] The court imposed a 12 month custodial sentence to be followed by 36 months of probation. The probation order directed that “He is to continue to attend for assessment, treatment and counselling for any sexual offending behaviour and for any substance abuse issues that might be identified by his probation officer.” Another one of the terms of the probation order was that “He is to have no contact directly or indirectly with any children under the age of 16 years without an adult being present.” The court allowed an exception in respect of that component: “Except with the approval of the Children’s Aid Society.”

The Context in which the Predicate Offences were Committed:

[16] And so, for the three years from March 22, 2006, K.C. was on a probation order that had two results: (1) the CAS became very involved in putting restrictions around his ability to interact with his children; and (2) he benefited from a regular and therapeutic relationship with Dr. Gray, a forensic psychiatrist at the Royal Ottawa Mental Health Centre with a specialty in sexual behaviours.

[17] The CAS decided that K.C. should not have unsupervised access to the children. In other words, he could not be alone with his kids. His wife C.K. was supposed to be around at all times. As was made clear during the trial, neither parent followed this rule; K.C. was often alone with the children with C.K.’s knowledge. Instead, the couple jointly endeavored to deceive the CAS with respect to K.C.’s compliance.

[18] The CAS restrictions on unsupervised access as between K.C. and his children, as well as K.C.’s relationship with Dr. Gray, continued well after the probation order had expired. Indeed, in 2012 a child protection proceeding was initiated. In February 2012, the court ordered an assessment because of “significant concerns about the capacity of the mother and father to maintain safety of the two children, in light of the history of the father, who has been convicted of sexual offenses involving children and the sexual behaviour which the child … has been exhibiting at school.” A report prepared for the court by Dr. Susan Rich dated September 21, 2012 sets out a plan for a gradual re-integration by K.C. into the children’s lives in an unsupervised sense.

[19] Suffice it to say that it is clear that at the time the predicate offenses were committed K.C. was within the fold of both the Royal Ottawa Sexual Behaviours Clinic and the CAS. As mentioned, he essentially ignored the CAS direction with respect to direct access with his children. As well, the information before the court which touches on issues like falling asleep during treatment sessions and being less than honest and forthcoming about compliance with medication, lead to the conclusion that his record under treatment with Dr. Gray was at the very least uneven. In any event, what is now known is that neither resource was able to affect his choices and behaviours such that he could resist his pedophilia.

The s. 752.1 Psychiatric Assessment Report:

[20] Dr. Philip Klassen, a forensic psychiatrist, prepared a report for the court and gave expert opinion evidence.

[21] Dr. Klassen confirmed K.C.’s diagnosis of pedophilia and informed the court with respect to the fact that such a disorder cannot be cured, only managed. K.C. will have a sexual interest in children for the rest of his life.

[22] Dr. Klassen explained that sex offenders have a generally low risk of recidivism as compared to other kinds of offenders. Additionally, he explained that while the risk of re-offense for sex offenders diminishes as they age, that decline is less pronounced than in respect of other non-sexual offenders.

[23] Well-known actuarial tools designed to assist in the assessment of risk of re-offense for someone like K.C. were used. On the STATIC-99R, K.C. was scored a 5. At a score of 5, K.C. falls on approximately the 89th percentile, with respect to the reference samples. Qualitatively, the score was described as moderately high to high. K.C.’s relative risk of reoffending is said to be approximately 2.7; meaning he is approximately at 2.7 times the risk of re-offending in comparison with the “average” sexual offender. Dr. Klassen explained that similar scoring individuals recidivate sexually or violently at the rate of approximately 46% over 10 years opportunity in the community.

[24] Dr. Klassen’s score for K.C. on the SORAG is 19. At a score of 19, K.C. falls on the 81st percentile with respect to the reference sample. It is noteworthy that this is very similar to the percentile score offered by the STATIC-99R. Dr. Klassen explained that similar scoring individuals recidivate violently or sexually at a rate of approximately 76% over 10 years opportunity in the community. That said, Dr. Klassen opined that since the data is older, the 76% is likely an overestimate. In his opinion, today, similar scoring individuals would be expected to recidivate at rates slightly greater than 50%.

[25] After combining the two actuarial tools and applying his expert judgment, Dr. Klassen expressed the view that they collectively hover around the 50% mark. In the final analysis, with respect to probability, Dr. Klassen’s opinion was that “I cannot state with certainty that there is a probability of sexual re-offense.”

[26] I will make two comments before leaving the s. 752.1 report. First, it is clear throughout that K.C. maintains his innocence with respect to the acts he stands convicted of having committed. He insists that the children have made it all up. Second, it is clear that he believes his pedophilia to be a thing of his past.

The Statutory Framework:

[27] For ease of reference, I will set out the relevant section of the Criminal Code below:

s. 753 (1) On application made under this Part after an assessment report is filed under subsection 742.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

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

(i) a pattern of repetitive behaviour by the offender, of which the offense 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 to another person, through failure in the future to restrain his or her behaviour,

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offense 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.

Analysis:

[28] The 7 counts on which I am presently sentencing K.C. include serious personal injury offenses as that concept is defined in Part XXIV of the Code. Additionally, it is self-evident that K.C.’s acts as perpetrated against his daughters and nieces show a failure to control his sexual impulses. The question is whether the Crown has proven beyond a reasonable doubt that there is a likelihood that K.C. will hereafter fail to control himself such that severe psychological damage or injury, pain or other evil will be visited upon others in the future.

[29] I adopt the reasoning outlined by Code J. in R. v. P.G. 2013 ONSC 589 in defining likelihood as “probability, that is, something more than mere possibility… it refers to probable “risk” or “potential for harm”, as a present fact, rather than to proof of a future event which would be an impossibility.” In support of this, Code J. cites LaForest J. in R. v. Lyons, [1987] 2 S.C.R. 309 at para. 94 to the effect that likelihood “requires proof that the offender represents a threat of some sort to society. It is nowhere required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty of harm.” That said, I agree that mere presence of risk is not enough. There must be a likelihood - that is, an evidence-based conclusion at the beyond a reasonable doubt standard that it is more likely than not that a certain act will be done.

[30] Analysis of the likelihood of future re-offending by K.C. should begin with the expert opinion of Dr. Klassen. The doctor was a most impressive witness, clearly very educated, experienced and skilled. It will be recalled that primarily by use of the STATIC-99R and the SORAG, Dr. Klassen came to the view that the risk of recidivism “hovered” at about 50% and that he could not say with certainty that a likelihood exists for future offending. The import of the actuarial results and Dr. Klassen’s associated opinion became a central part of the submissions.

[31] It is important not to allow any actuarial tool, or any expert for that matter, to dictate the result. The expert designated by s. 752.1 is meant to assist the court, not make its decision for it. I point this out because I share the view expressed by Pomerance J. in R. v. McLaughlin 2014 ONSC 6537 that actuarial tools are useful primarily insofar as they supplement and/or allow for a form of cross-checking of judgment. The SORAG and the STATIC-99R are instruments which tell us not about K.C. per se, but rather what history tells us about the behaviour of individuals who share with him a finite list of certain characteristics. Those characteristics are, of course, relevant to sex offenders and their prospects, but they do not capture the full scope and measure of the particular subject in question. This court is possessed of a full tapestry of evidence demonstrating that K.C. is a unique individual situated in unique circumstances. Any assessment of the likelihood of future behaviour on his part should be based on all available evidence about him, not just a short-list of common denominators which link him to the behaviour of others.

[32] I respectfully decline to entirely adopt Dr. Klassen’s opinion as my own. Leaving aside the question of whether certainty is equivalent to the beyond a reasonable doubt standard, I conclude that he and his actuarial instruments fail to adequately incorporate what I see as a key determinant of K.C.’s likelihood of recidivism: the fact that he is in a form of self-denial about the present extent of his pedophilia problem.

[33] Ordinarily, there is nothing to be made from the fact that an offender maintains his innocence. Any associated inability to express remorse or pledge interest in remediating whatever prompted the criminal behaviour is simply the absence of a mitigating factor. An offender’s interest in exercising his right to appeal what he perceives to be an injustice can never be considered aggravating or worthy of extra punishment. The right to appellate review would be a hollow one if that were so. However, a dangerous offender application is not a typical sentencing proceeding. The legislation specifically directs the court to determine the likelihood of future behaviour. The extent of the forward-looking analysis called for in s. 753 is meaningfully greater than what is contemplated in s. 718. Accordingly, I adopt the position enunciated by Code J. in R. v. P.G. to the effect that the Ontario Court of Appeal decision in R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71:

…stands for the proposition that “denial” can be relevant to sentencing when it impedes treatment and, thereby, increases the risk of recidivism, or “dangerousness” as Rosenberg J.A. called it. In this sense, it is not [the offender’s] ongoing assertion of his innocence that is aggravating. Rather, it is the negative prospects for treating his pedophilia that is aggravating because it increases the risk of re-offending.”

[34] I further agree with Code J.’s assessment that the jurisprudence has repeatedly referred to “denial”, especially by sex offenders, but also by violent, aggressive psychopaths, as a significant factor when assessing the “likelihood” test in s. 753 concerning future re-offending. “Unwillingness to take treatment and prospects for successful treatment have always been important factors in these kinds of cases, when assessing future dangerousness.”

[35] K.C. is in denial about the present state of his pedophilia problem. He believes his affliction in that regard to be a thing of his past. He denies the predicate offenses. He does not really believe he needs help. He refuses to take the medication that could address his problem.

[36] In my view, the various interviews of K.C. by correctional officials and health care providers show that K.C. has essentially learned what to say in order to mask his underlying issue. While it is admittedly a small anecdote in the grand scheme of things, I was struck by the part of the Dr. Klassen report dealing with the interview after the phallometic testing. The instruments had detected that, despite being told not to do so, K.C. had been clenching his perineal muscles when adult heterosexual stimuli was presented. This is a problem because it can represent an effort by the subject to demonstrate reaction that in fact does not naturally exist. Dr. Klassen took K.C. up on the subject which led to K.C. describing the degree to which he has his sexual impulses under control and his methods to accomplish that objective. I agree with Dr. Klassen’s opinion that K.C.’s talk in that regard was “more tactical than genuine.” In my judgment, K.C.’s various articulations about the state of his problem through the entirety of the evidence suffer from that same “more tactical than genuine” shortcoming.

[37] K.C.’s inability or unwillingness to accept the extent of his present problem is a piece of evidence that ought to be put on the scale. In fact, once that is done the balance tips, even if only by a small margin, toward a likelihood of serious personal injury offence recidivism. I find that the overall evidence establishes beyond a reasonable doubt that it is likely that K.C. will re-offend by indulging his pedophilia as he is done in the past. K.C. has been convicted of sexual offenses against children through three separate sets of charges. He has victimized 6 girls over the course of about 10 years. He has offended while on probation. He offended while under the care of a specialized psychiatrist specifically treating him for his pedophilia. He offended while the CAS was involved in his family, exercising control over his direct access to children which he circumvented. The most recent predicate offences show a striking elevation in gravity – the incestuous fellatio aspect is a disturbing step up. And, as mentioned, he does not presently have enough insight into his problem to fully accept that he needs significant help. He is in denial about what is plain to see.

[38] I find that the preconditions to a dangerous offender designation have been met, either through s. 753(1)(a)(i) or s. 753(1)(b). K.C. stands convicted of serious sexual offences against young girls, including sexual assault contrary to s. 271. His behaviour is part of a pattern in that he has again and again indulged his pedophilic interests. That sort of misconduct has obvious negative effect on the physical or mental well-being of those affected. In fact, as the victim impact evidence tendered in this hearing demonstrates, sexual abuse of the young and vulnerable of the kind that K.C. is capable of and likely to repeat involves the infliction of severe psychological damage.

[39] Having found K.C. to be a dangerous offender. I must now turn to s. 753(4) and s. 753(4.1). For ease of reference, I reproduce the relevant sections below:

753(4) If the court finds an offender to be a dangerous offender, it shall

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

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

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

753(4.1) The court shall impose a sentence of detention in the penitentiary for an indeterminate period, unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph 4(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[40] These sections do not impose any sort of onus on either party. Rather, they speak to whether the court should exercise a discretion to impose a sentence on the basis of being “satisfied” of the existence of a “reasonable expectation.” If the court is “uncertain whether that requirement is satisfied … the sentencing judge should refuse to exercise the discretion” (R. v. D. (F.E.) (2007), 2007 ONCA 246, 222 C.C.C. (3d) 373 at paras. 44-45 (Ont.C.A.); R. v. Simon (2008), 2008 ONCA 578, 269 O.A.C. 259 (Ont. C.A.)).

[41] The term “reasonable expectation” is a meaningfully different requirement than the “reasonable possibility” threshold which existed prior to 2008. The word “expectation” carries a connotation of more than just possibility. The Oxford English Dictionary defines “expectation” as a “strong belief that something will happen or be the case.” Clearly, something more than mere possibility must exist (see: R. v. Minott 2015 ONSC 4307; R. v. Sayer 2015 ONSC 5604).

[42] The reasonable expectation of eventual control must be based on evidence, not a hope and a prayer (see: R. v. K.O. 2013 ONSC 955).

[43] Given the pre-sentence custody served thus far, a determinate sentence imposed on the predicate offences would result in K.C. being released onto a Long Term Supervision Order (LTSO) in about 4 years. I must therefore determine whether an LTSO, which could run for the ensuing 10 years, could reasonably be expected to adequately protect the public from the sort of acts that K.C. has shown himself capable of and likely to do again.

[44] It is said that there are several features of the evidence which militate in favour of a finding of a reasonable expectation of adequate public protection. For example, it is pointed out that K.C. lived in the community pretrial for approximately 2 years under terms of judicial interim release without re-offending. Thus, it is said, he is able to adhere to judicial control. Second, it is argued that the various treatment resources that will be extended to K.C. through the correctional system will have salutary effect such that it is reasonable to expect he will exit the custodial environment meaningfully improved. Third, it is said that K.C. will have such support in the community post-release that any risk of re-offense is adequately reduced. Of course, these sort of elements are to be considered in aggregate, as a cohesive whole along with the rest of the evidence.

[45] It is true that K.C. lived in the community pre-trial without breaches. It must be said, however, that his conditions were about as close to house arrest as could be imagined. When interim release is structured to almost mimic custody, the impact of successful compliance on likelihood of law abidance once free and clear of the justice system is reduced.

[46] I cannot agree, on the evidence, that K.C. would have support in the community such that his risk of re-offence could reasonably be expected to be adequately minimized. I note that his mother and all siblings but the one he has little to do with share his position that he has been wrongfully convicted. All those in his everyday social context seem to believe that his sexual problems are in his past and no longer operative. The woman with whom K.C. proposes to live with post-release testified that, while she will follow any court order, if she had children she would allow K.C. access to them as she believes in his innocence and does not see that he has any problems in that regard. It is a real concern that those around K.C. simply do not accept the extent of his issues. That lack of insight does not bode well for quality of supervision, especially once any LTSO expires.

[47] The issue of K.C.’s lack of insight and willingness to fully accept his need for treatment also militates against a reasonable expectation of eventual satisfactory reduction of risk. In this regard, I respectfully disagree with Dr. Federoff as his position is expressed in his April 27, 2015 report. I disagree that K.C.’s pedophilia is in remission. Such a concept is outside the medical consensus expressed in the DSM and, more importantly, is inconsistent with the commission of the predicate offences. Fundamentally, I cannot accept that mental health treatment extended to someone with little acceptance or insight about the scope of his problem, or any real willingness to address it, could give rise to a reasonable expectation of effecting change within the time-frame contemplated to such a deeply ingrained and permanent part of the man’s personal constitution as his sexual orientation. K.C.’s pedophilia will be with him for life. On the basis of the entirety of the evidence, it cannot be said that he is really motivated to get it under control. K.C. and the prospects of successful treatment bring to mind the old adage of being able to bring a horse to water but not having the ability to force any uptake.

[48] I contrast K.C. with the offender in R. v. H. (M.B.) (2004), 2004 14199 (ON CA), 186 C.C.C. (3d) 62 (Ont. C.A.), a pedophile who willingly acknowledged his need for treatment, including behavioural therapy and medication to reduce his sex drive. The evidence in that case included the offender’s explanation as to why and how he came to accept the onerous treatment regime proposed by his doctor. He swore to commit to it, accepting its negatives and side-effects . On that record, a long-term offender designation was held to be the appropriate sentence. While I do not want to be seen to be commenting on K.C.’s decision to have exercised his right not to testify before me, it remains the case that the only information I am left with suggests a disinclination on his part to do the treatment work required.

[49] K.C. is in denial. Those in his circle of support are in denial. In my view, he will only go through the motions with respect to any treatment put in front of him. The disorder animating his history of criminal misconduct is deep-seated and permanent. The evidence does not give rise to any reasonable expectation that K.C. could be sufficiently rehabilitated within the fixed period of time of an LTSO. Once the post-custody LTSO expires, the public would be at untenable risk of K.C. re-offending. K.C. will be free and clear of any sentence while still in his 40s. Like the offender Weekes J. was referring to in R. v. R.J.R. [2001] O.J. No. 5015, K.C. would then have “the same urges coursing through him that he now has.”

[50] In my judgment, the only reasonable interpretation of the whole of the evidence is that the only way to adequately protect the public after the expiry of the custodial period appropriate to the facts of the predicate offences would be for K.C. to be compelled to take hormonal sex drive reducing medication for a length of time in excess of the 10 year period allowed for by a long term offender designation. As such, the only way to sufficiently protect the public is to ensure that K.C. is either incarcerated or under close supervision for the rest of his life.

[51] I close with the following words from the Court of Appeal for Ontario:

The overriding purpose of the dangerous and long-term offender regime is the protection of the public. The court is required on a dangerous offender application to balance the liberty interests of the accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail (see: R. v. G.L. 2007 ONCA 548, 87 O.R. (3d) 683).

Conclusion:

[52] I designate K.C. a dangerous offender pursuant to s. 753(1)(a) and (b) of the Criminal Code, and an indeterminate sentence of imprisonment is imposed pursuant to ss. 753(4) and (4.1).

Mr. Justice Kevin B. Phillips

Released: September 29, 2017

CITATION: R. v. K.C., 2017 ONSC 5803

PERTH COURT FILE NO.: CR895-13

DATE: 2017/09/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

K.C.

Respondent

DECISION ON SENTENCE – DANGEROUS OFFENDER APPLICATION

PHILLIPS, J.

Released: September 29, 2017