SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 935/15
DATE: 2018 04 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Stevens, C. Hackett, for the Crown
- and -
KIRK WILLIAMS
C. Cawkell, for the Defence
HEARD: April 11, June 1, December 16, 2016; and May 24, June 12 to 16, October 10 to 12, 2017, at Brampton
DANGEROUS OFFENDER
SENTENCING JUDGMENT
Hill J.
TABLE OF CONTENTS
Para. No.
INTRODUCTION.................................................................................................. 1
CASE CHRONOLOGY......................................................................................... 4
THE PREDICATE OFFENCES
The Crimes...................................................................................................... 5
The Victim Gets Help...................................................................................... 23
Subsequent Actions of Offender...................................................................... 31
The Police Investigation.................................................................................. 33
VICTIM IMPACT EVIDENCE.............................................................................. 41
THE OFFENDER
Overview of Criminal History............................................................................ 46
The 1997 Home Invasion............................................................................. 49
Sexual Interference in 2001-2002 With Youthful Females............................... 60
The Consolidated Sentencing Hearing 2002.................................................. 68
Indecent Exposure in 2012 to Females Under Age 16.................................... 71
Breach Probation Convictions 2013............................................................. 77
Offender’s Personal History............................................................................ 82
Corrections Institutional History....................................................................... 93
Psychiatric Treatment/Counselling................................................................. 110
CORRECTIONAL SERVICE CANADA EVIDENCE............................................. 134
PSYCHIATRIC EVIDENCE
Diagnoses................................................................................................... 140
Risk Assessment.......................................................................................... 162
Prognosis for Treatment/Management............................................................ 174
POSITIONS OF THE PARTIES
The Crown................................................................................................... 207
The Defence................................................................................................ 216
ANALYSIS
The Legislation............................................................................................. 232
Discussion
Introduction.............................................................................................. 236
The Boutilier Paradigm.............................................................................. 239
The Designation Gateways........................................................................ 246
What the Evidence Establishes.................................................................. 254
The Designation Issue............................................................................... 283
The Fit and Appropriate Penalty................................................................. 290
CONCLUSION................................................................................................. 294
INTRODUCTION
[1] When Kirk Williams launched a terrifying sexual attack on an unsuspecting young woman in June 2014, he was a previously-convicted sex offender, subject to a lifetime SOIRA order (Sex Offender Information Registration Act), a lifetime s. 161 Criminal Code prohibition order relating to children, and also subject to two probation orders.
[2] It falls to be determined what a fit and just sentence is for the predicate or index offences, the 33rd and 34th offences in the offender’s criminal history – choking to commit a sexual assault and sexual assault causing bodily harm.
[3] The Crown submits that Mr. Williams should be declared to be a dangerous offender and sentenced to a term of indeterminate imprisonment. The offender disagrees, submitting that a finite jail term followed by a lengthy LTSO (Long Term Supervision Order) would constitute a proportionate sentence providing adequate protection to the public.
CASE CHRONOLOGY
[4] The chronology of this proceeding is as follows:
June 13, 2014
offences (sexual assault causing bodily harm/choking) committed
June 20, 2014
Kirk Williams arrested
April 9, 2015
preliminary inquiry & committal – R.S. testifies
June 8, 2015
4-count indictment filed (sexual assault causing bodily harm/ choking/forcible confinement/ breach probation)
judicial pre-trial held
April 11/16 sittings scheduled for jury trial
April 11, 2016
re-election and guilty pleas on trial date
June 1, 2016
Criminal Code, s. 752.1 assessment order on consent
mid October 2016
Dr. Woodside’s assessment report filed
December 16, 2016
Deputy A.G.’s consent to dangerous offender (d.o.) appln (s. 754(1)(a))
January 4, 2017
defence seeking to retain own expert
February 28, 2017
Rule 35 Supervision Hearing held & d.o. evidentiary hearing set for week of June 12, 2017
May 24, 2017
A.G. Ont. Notice of Appln pursuant to s. 754 of the Code to have Kirk Williams declared a dangerous offender
June 12 to 16, 2017
d.o. evidentiary hearing
October 10 to 12, 2017
submissions re d.o. sentencing
December 21, 2017
release of R. v. Boutilier, 2017 SCC 64 (with follow-up supplementary submissions of parties in Mr. Williams’ case)
April 6, 2018
release of sentencing judgment
THE PREDICATE OFFENCES
The Crimes
[5] In June 2014, Kirk Williams, 6’2” in height and weighing about 270 lbs., was a registered sex offender with a prior criminal record, including for sex crimes. He had been treated in and out of custody for sexual deviation. He was subject to two probation orders and, up until April 7, 2014, after which he discontinued treatment, he had been enrolled in a sex offender treatment program with a psychiatrist at CAMH (the Centre for Addiction and Mental Health). In May and June 2014, he regularly accessed child pornography, rape and other sex-related websites on his computer.
[6] In 2016 psychiatric assessment interviews, the offender discussed his use of child pornography. Dr. Woodside’s report noted that:
He also noted that his use of child pornography “fueled” his prior offending against children; he stated that prior to the index offenses he had been viewing pornography again, relating to “naughty neighbours”, people “roleplaying” coercive sexual encounters and amateur pornography. He stated he was exploring fetish sites regarding hands, feet, etc. although he noted his interest was primarily in feet. He stated he became increasingly “curious” and began taking pictures while out in the community…
He noted that of the materials he viewed on the internet he masturbated primarily to the “roleplaying” [of coercive encounters] and of amateur nudity.
[7] The offender was under high stress and anxiety according to Dr. Gojer’s report. His debts, his mother’s death, marital issues, and CAS involvement with his children were contributing causes. The offender informed the doctor that he went through cycles of masturbating ten times daily when under stress.
[8] On June 12, 2014, 3 days after a reporting meeting with his probation officer, Kirk Williams accessed the following sites on his computer:
(1) http://www.youtube.com/results?search-query=leggings+can+cause+rape } 06/12/14 01:20:02 AM
(2) http://www.movie4k.to//Anal-Teen-Dreams-2-watch-movie-5161943.html } 06/12/2014 01:15:13PM
[9] In June 2014, the 24-year-old complainant, R.S., was home from university residing in Mississauga with her parents and brother. She did not know Kirk Williams.
[10] During the evening of June 12, 2014, R.S. went out socializing with friends she knew from high school. Around 1:00 a.m. on June 13, the group returned to one of their homes for a time before R.S. set out to walk home on her own. When a friend, R., caught up to the complainant, they sat and talked for a while. R. then walked onward with her boyfriend who had come by leaving R.S. to go home alone.
[11] After leaving home in the afternoon, the offender began driving in his vehicle. In 2016, the offender provided to Dr. Woodside this description of his June 12, 2014 activities:
… he was planning on masturbating in his car, while looking at women walking by. He stated he wanted to see someone in person rather than looking at pictures on the internet. He reported driving to a shopping mall and parking across from a bar. He noted there were girls coming out of the bar and walking across the parking lot. He had been to the bar himself before but had not gone there to masturbate previously.
He reported sitting in his car, with his penis exposed, masturbating. He noted if the girls had turned towards him, they would have been able to see his penis although none apparently did. He remained there for about 30-60 minutes before driving to a 7-11 around 1-2 am. He parked his car and went across the street to a walkway, where girls leaving the 7-11 might walk by. He reported watching girls and masturbating in the shadows for about 15 minutes or so. He then reported thinking to himself that this was “not doing it” [not getting him off]. He then saw a girl [the victim] walking on the opposite side of the street. She went in the 7-11 and then left it. He crossed the street, walking behind her, while she was on her cellphone.
He passed by her and went to his truck, masturbating while looking at her. She walked by his truck and then he left the truck, following her. He stated, “something just went bad in my head…I wanted to try all the stuff I saw on the internet…girls gone wild, amateur, college…” He stated he was focused on continuing to look at her while masturbating.
However, he saw a bush coming up and stated his “mind just said, ‘I gotta see what that ass looks like…it was like on the internet, the full fantasy begins to initiate…to be able to see her ass and masturbate to it.”
[12] At about 1:50 a.m., alone and only blocks from her home, R.S. had decided to take a shortcut through a townhouse complex, a route more directly leading home. As R.S. walked, she was texting R. Her last text message to her friend was at 1:57 a.m. – a big and strong arm wrapped around her neck from behind choking her, and dragging her causing R.S. to drop her phone and to lose her flipflop footwear.
[13] The choke-hold around her neck caused R.S. to lose consciousness for 15 to 20 seconds. When she came to, she was face down on the ground with her assailant behind and on top of her, thrusting his groin against her buttocks. At this point, R.S. was fully clothed. She believed her attacker, subsequently identified as Kirk Williams, to be naked as she could feel his penis.
[14] As she regained consciousness, the offender grabbed her neck and again choked her telling her to be quiet. At this point, the offender picked R.S. up by the neck and pulled her deeper into some bushes. As she struggled, both she and the offender fell to the ground.
[15] R.S. attempted to punch her attacker without effect. The offender threatened: “If you make a single sound, I can snap your pretty little neck”. With both hands around the complainant’s neck, the offender squeezed and released a number of times to reinforce his threat. While R.S. struggled to breathe, she tried to indicate that she would cooperate. The offender responded: “Do what I am gonna ask you to do. Be a smart girl and cooperate”. In 2016, the offender related to Dr. Woodside that he asked the victim her age. She replied “24”. He had thought “she looked much younger than 24”.
[16] After the offender directed R.S. to position herself on her hands and knees facing away from him, he removed her pants and bra. He repeated more than once: “If you make a sound, I will snap your neck”. The offender fondled R.S.’s breasts and then her vagina, digitally penetrating her vagina. He then kissed and licked her buttocks and licked her vagina for a number of minutes.
[17] When asked if she had ever “done anal” before, R.S. responded that she had not. At this point, the offender placed his penis between R.S.’s buttocks cheeks and began thrusting upwards repeatedly to masturbate. When he then began thrusting his penis around her vagina, R.S. pleaded with him to use a condom as she feared becoming pregnant. The offender agreed but when she asked to feel the condom, he refused.
[18] The offender continued stroking the victim’s vagina and admiring her buttocks. R.S. heard from her assailant what she considered to be sexual-related noises as the assault continued.
[19] During the incident, whenever R.S. tried to get up, the offender forced her head back down to the dirt telling her to arch her back more. He alternated between fondling her vagina, digital penetration, and thrusting his penis between her buttocks and near her vagina. Throughout the sexual assault, the victim’s feet were being stepped on and moved around. At a certain point, while he was sexually assaulting R.S., the offender cupped his hands underneath her genital area and asked her to “shit in his hands”. R.S. advised that she couldn’t at which point he asked her to “piss in his hands”. She was unable to comply explaining to him that she hadn’t had anything to eat or drink in a while. He next asked her to spit in his hands which she attempted to do a couple of times. After she spat in his hands, he proceeded to lick and sniff his hands. He then went back to digitally penetrating her anus and after a while said, “Oh its right there. It’s just right there.” Then he took his fingers out and smelled them and said “It smells so sweet”.
[20] After the offender asked R.S. to arch her buttocks up higher, he resumed digitally penetrating her anus, this time with increased speed. The victim found this painful. Her assailant appeared to be getting more aroused saying, “Oh my God, I am going to come”. He grabbed her hips and began thrusting his penis in the area of her vagina. She then felt his penis attempt to anally penetrate her. When R.S. moved, stopping him, he didn’t attempt any further to enter her. She heard what she described as a sense of release but could not determine whether her attacker ejaculated – she did not feel any ejaculate on her. At no point was there penile penetration of the victim’s anus or vagina.
[21] The offender next directed R.S. to completely remove her underwear. She complied. She could then hear him sniff the underwear before he said: “There’s some on it. It smells so sweet.” The offender instructed her to remove her shirt. He proceeded to use her shirt to wipe down her buttocks and vagina leading R.S. to believe that he was making sure there was nothing on her. She was next directed to put her shirt over her face. Again she complied. She was then told to turn over so that he could see her whole body. As R.S. sat there exposed, she became concerned that he was going to start up again and perhaps rape her. The offender told her that she had a nice body and that she was beautiful. He asked to see her foot and took her left foot in his hand saying it was beautiful.
[22] The offender said: “You are a smart girl. You did well.” He asked her how old she was and whether she had a boyfriend. He told her that she should not be walking alone at night and that he had been watching her for six weeks. R.S. recalls the following comments: “I see you pass by very often wearing those pants that you always wear, those black pants, those are provocative. I want you to know that it’s because you wore those pants – that pushed me over the edge.” The offender went on to say that he had been watching her and knew where she lived and that, if she contacted the police or if anything was released to the media, this was “round one”, and he would find her again. He told her to be smart and not report this or tell her parents. Rather, she should just go to her room and pretend nothing happened. When the offender said: “It’s not like I raped you. I didn’t go inside you. You understand that right?”, R.S. expressed agreement with him. He said he was leaving and that she could leave after a few minutes.
The Victim Gets Help
[23] As she waited for a little while, after being assaulted, R.S. didn’t hear her attacker getting dressed or picking anything up. When she thought he was gone, she put her clothes back on and attempted briefly to find her flipflops and her phone. She couldn’t find them so walked home barefooted.
[24] R.S. considered going to a different house in case her assailant was watching her but in the end went straight home and locked all the doors. After starting up the stairs, she went back down to check that she had, in fact, locked them.
[25] R.S. went upstairs to her father’s room where she broke down crying and rambling about what had happened. When her father attempted to call the police, she refused to let him, fearing that her assailant was watching the house. Her father also suggested calling an ambulance. She also refused in case her assailant heard the sirens or saw the lights. After she calmed down and stopped crying, R.S. collected herself and agreed to go to the hospital so that she could get help and so that the hospital could contact the police. R.S. put her clothes in a bag, did not shower, and headed to the hospital with her father.
[26] At the hospital, staff contacted police and called a sexual assault nurse examiner. R.S. submitted to a sexual assault examination kit being conducted which took several hours. The sexual assault kit process included swabs of her external genitalia, vaginal swabs and rectal swabs.
[27] According to the offender, following the sexual assault, he went home and masturbated to ejaculation while on the internet.
[28] R.S. was administered a number of drugs to mitigate the risk of exposure to HIV, syphilis and gonorrhea from the sexual assault. She took this medication for some weeks until August, 2014.
[29] The victim sustained cuts and abrasions to the tops of her feet during the assault (see Exhibit #2 photos). The nurses cleaned and bandaged both feet. R.S. continued to tend to her feet for over a month and experienced pain for approximately two weeks. She could not wear closed shoes for a month. R.S. also experienced soreness to her neck which lasted for about a week. The day following the attack, on account of compression of her neck in the attack, she found it difficult to talk.
[30] Immediately following her medical examination and treatment, R.S. gave a video statement to a Peel Regional Police Service (PRPS) sexual assault investigator. She recounted the events of the evening and went back to the scene to walk the police through where events occurred.
Subsequent Actions of Offender
[31] The complainant was sexually assaulted at about 2:00 a.m. on June 13, 2014. Examination of the offender’s computer following his arrest revealed internet browser activity relating to his crime referencing “Mississauga”, “police”, “crime”, and “sexual assault” in the hours immediately after R.S. was sexually assaulted. Between 4:20 a.m. on June 13, 2014 and 8:32 a.m. on June 15, there were 10 such searches.
[32] The offender had arrangements to vacation in Cuba from June 22 to 29, 2014.
The Police Investigation
[33] The PRPS forwarded the sexual assault kit items and the clothes worn by the victim during the assault to the Centre of Forensic Sciences (CFS) for DNA analysis with a special request to expedite the testing. The police canvassed the area of the attack in an attempt to locate witnesses to the assault but were unsuccessful. Police investigators attempted to develop a suspects list and issued a press release on June 13, 2014 at about 5:00 p.m. The analysis at the CFS of the sexual assault kit samples revealed that the external genitalia swab of R.S. included a male profile identifiable at 15 STR loci and which was suitable for further comparison. The shirt the victim was wearing was also examined revealing the presence of amylase, which is found in saliva. A male profile identifiable at 15 STR loci was extracted from that sample. It was the same profile as the donor on R.S.’s external genitalia swab.
[34] On June 20, 2014, the PRPS was advised by the CFS that they had a hit from the federal DNA databank linking the genetic material found on R.S. in the sexual assault kit with a known offender, Kirk Williams.
[35] The police began surveillance of Kirk Williams in order to coordinate an arrest plan. The arrest was effected at 6:54 p.m. on June 20 including the execution of a warrant to search the suspect’s residence.
[36] The offender’s computer was seized and a warrant to search it was secured. Forensic analysis of the computer revealed that at 4:20 a.m. on June 13, 2014, the device ran several internet searches for approximately 10 minutes using terms such as “breaking news Mississauga”, “Peel Police fugitive list”, “Peel Police search sexual assault”, “naked man Peel”, “on the hunt naked man Peel”. Later in the day, at 9:49 p.m., the computer ran further internet searches on the PRPS website. An article was reviewed entitled, “Police appeal for assistance in sexual assault”. Shortly thereafter, there was a further internet search for: “Mississauga sexual assault early this morning”. On June 15, the offender’s computer ran the following search: “How much jail time for sexual assault in Canada”.
[37] On November 28, 2014, the PRPS executed a DNA warrant upon the offender. A seized biological sample was analyzed by the CFS and compared to the profile on R.S.’s shirt and her external genitalia swab. Kirk Williams could not be excluded as the donor of those crime scene samples. The random match probability that it was not Mr. Williams was 1 in 200 quadrillion.
[38] A search of the offender’s laptop computer by the PRPS Technical Crimes Unit revealed that, in May and June 2014, there were over 1200 instances of internet searches which included the following search terms:
(1) pooing
(2) toilet poo hidden
(3) preteen feet
(4) teens crash death pic
(5) toilet teen hidden
(6) teen asshole amature teen
(7) jailbait feet
(8) preteen raped best gore
(9) model pedo tiny girls
(10) nude tiny girls
(11) real rape bodies
(12) pediatrician anal disfunction examination.
[39] Examples of internet browser activity in May and June 2014 included accessed sites relating to:
(1) “…/video/…Anal_Rape…”
(2) “…porn/incest-rape-brother-and-siste…”
(3) “…porn/sleeping-daughter-incest…”
(4) “…videos/real_rape_caught_on_camera…”
(5) “…Drugged_Up_Girl_Molested_Rape_Videos…”
(6) “… free-bondage…”
(7) “teen + feet”
(8) “… imgsrc.ru/litgirlass…”
(9) “…luvyoungone…”
(10) “…Anal-Teen-Dreams…”
(11) “…brutal-rape-photos…”
(12) “…real + rape + bodies…”
(13) “…indian-nude-school-girls-rape…”
(14) “…hidden-shit-wc-cam…”
(15) “…Anal_Rape…”
(16) “…Real_Rape_Raped_Videos…”
(17) “…ynggirlnudity…”
(18) “fantasyrape…”
(19) “…sexual assault + assault + teen + porn…”
(20) “…porn/young-teen-rape-while-sleeping…”
(21) “…in + what + country + is + pedophilia + talorated”
(22) “…young-girl-pooping-in-toilet…”.
(See Exhibit #9, Volume 11, Affidavit of Const. G. Lancaster, Apr. 27/17).
[40] The technical investigation discovered that the offender had used his cellphone to take pictures of women’s feet and sandals on June 18, 2014 before transferring them to the desktop of his computer on June 19. On the desktop a folder containing videos was also located – one video was of the back of a female clothed in leggings standing on a transit platform with a focus on the woman’s buttocks – the metadata from the video indicated that it was recorded on the offender’s phone on March 6, 2014 and written to his computer on April 26, 2014.
VICTIM IMPACT EVIDENCE
[41] On June 12, 2017, pursuant to s. 722(5) of the Criminal Code, R.S. read her victim impact statement (Exhibit #9, Vol. 1, Tab 5) into the court record.
[42] R.S. presented as an intelligent and remarkably courageous young woman on what has become a challenging path to completing her fourth year of university studies.
[43] Apart from the physical victimization of June 2014, the choking and sexual crimes have significantly and permanently affected R.S. emotionally and psychologically.
[44] The victim’s studies have been disrupted and future career choices altered. Flashbacks and memories of being sexually assaulted persist. Personal relationships have been negatively impacted. R.S.’s interest in intimacy and romance has been paralyzingly blunted on account of the offender’s assault upon her sexual integrity. The victim’s personal circumstances, such as venturing out at night, walking alone, and attending social gatherings in the evening, have changed.
[45] Following the attack, R.S. has experienced symptoms of dissociation, suicidal ideations, nervousness, fear, control-seeking, and eating disorder. The victim has struggled to combat feelings of shame and guilt for what happened to her:
Overall, it is hard for me to put down in words how the assault impacted me. Everything that I have endured, and will continue to endure is hard to exactly quantify, but is ultimately there in the first place … because of the assault. I will think about the countless ways that I could have changed the events of that night, and change my actions to avoid this situation. I will always wonder what could have happened had I opted for taking a taxi instead of choosing to walk home that night. I will always wonder if I would have a different career. I will always wonder if my friends are judging me because of the event, or because they wish to avoid me.
Unfortunately, I absolutely regret all the attention thrust on me due to the events that had occurred on July 13th 2014. I constantly feel like I owe myself and others an apology, for the one bad decision I made that night.
For all the other countless things I will not list, I am sorry. For all the little things that the 1 hour of being stuck in that bush has caused me, the scars on my feet, the medication I take daily, the counselling and support that I demand of my friends, professors and sorority sisters- I regret it all. I wish it would have never happened. It changed all the lives of those I love around me; and as much as I try to make it stop, that will not change for a long long time, if ever.
I tell everyone around me that I am okay, because I fear that if I do not say I am okay, then I will become worse than I am already. In truth, I am not okay. I don’t know for sure if I will ever be. But the one thing that I guess I can hold on to, is that he never followed through with his promise to kill me, and that I never did completely follow through with those suicide attempts I had imagined in my mind, and had been hospitalized for once before in 2014. I am thankful for that, because that means that Kirk Williams doesn’t win. I will fight for as long as I can. Yes, I will struggle, but that does not mean that I can’t fight back. He may have choked me, threatened me, made me walk home without underwear, made me suffer through a rape kit for hours and an investigation that took twice as long, and he may have even taken over my life in every possible way – but that does not mean I will not try to fight back. This is going to be the fight of a lifetime, but I will not be the one blamed for what has happened. I survived this attack, and I will push through it wh[en]ever I can.
THE OFFENDER
Overview of Criminal History
[46] Prior to the predicate offences committed on June 13, 2014, the offender had a criminal record. The record began with a Youth Court sentencing in 1990 when the offender was 17 years of age. Subsequently, there were 25 further convictions with the final record entry in November 2013 when the offender was 41 years of age.
[47] In terms of sex-related offending, the offender’s prior record includes these entries:
Oct. 2002 - forcible confinement (x3) } (part of an 8-year total
- sexual assault } sentence with credit for
Oct. 2002 - sexual interference with } 95 days of presentence
female under age 14 (x3) } custody)
July 2012 - indecent exposure (x2) 1 month with credit for
8 months’ presentence
custody
[48] Not the subject of criminal charges, but documented in the filed application record, including relevant admissions by the offender, are accounts of physical abuse on his part directed against intimate partners, including S.P., and against one of his young sons (J.L.).
The 1997 Home Invasion
[49] In January 1997, K.S., a 33-year-old developmentally delayed woman, supporting herself on a disability pension, resided in St. Catherines, Ontario with her two children – a daughter, C., aged 5, and a son, J., aged 1 ½ years.
[50] Between the hours of 4:00 and 6:47 a.m. on January 18, 1997, the 24-year-old offender, masked to disguise his identity, entered K.S.’s residence where she was asleep with her children. Entry was made through an unlocked rear door. The offender, who was heavily in debt from gambling, intended to rob K.S. He was not under the influence of alcohol or drugs.
[51] When K.S. awoke to find the offender in her bedroom, he took hold of her, placing a hand over her mouth. He told the victim that he didn’t want to hurt her but he wanted her money. When K.S. tried to get away, the noise awoke her children. The children did not return to their beds when instructed by their mother.
[52] Although the offender told the children that they were playing, he proceeded, with the children present, to place K.S. on a couch where he tied her hands and feet with packing tape he had brought with him. Both children were tied up as well. J. was crying. The offender continued to ask for the whereabouts of the victim’s money. K.S. finally told the offender that she only had ten to fifteen dollars.
[53] The offender pressed K.S. about where she may have hidden money in the home threatening her at a point:
… if you don’t, I have a knife, and if you don’t cooperate, I’ll stab you all with a knife and the first one to go will be the little one because his neck is easy to break.
[54] Questioned again about her money, the victim directed the offender to a locked cupboard above the stove. The offender tied child’s pajamas around K.S.’s mouth and covered her head with a blanket before searching for money. He obtained K.S.’s bankbook and went through her purse.
[55] The offender told K.S. that if she contacted the police, he would return and kill them by attaching a bomb to the home’s phone.
[56] C. was permitted to use a nearby washroom with the door left open. When the offender saw the girl pull her pants down exposing her buttocks, he became sexually aroused. In a 2016 psychiatric assessment interview, the offender stated: “that’s when everything changed”. The offender then took C. to a nearby bedroom. K.S. heard her young daughter say “Are you going to touch me?”, followed by “Don’t”. The offender placed the young girl over the bed, removed her pants and underwear, put saliva on his penis, and rubbed his penis on her buttocks until he ejaculated on the child. The offender informed Dr. Woodside in 2016 that he repeated the act with the victim a second time. In an apparent effort to eliminate evidence, the offender then poured a bottle of soap over the blanket at the site of the assault, and took C. to the bathroom where he bathed her a second time and soaked her panties and pants in the sink. He then taped her hands once again.
[57] The offender left the residence after ripping the phone cord out of the wall. In time, the victims freed themselves and called the police.
[58] The crimes remained unsolved for some years. In April 2001, an acquaintance of Kirk Williams informed the Niagara Regional Police that Williams was the responsible party. The police investigation continued. On May 15, 2002, as the offender was being interviewed by the police on unrelated matters of a sexual nature, described more particularly below, he confessed to the home invasion and related crimes.
[59] The offender was charged with break and enter and commit robbery, forcible confinement (x3), being disguised with intent to commit robbery, and sexual assault. The accused pled guilty to the charges on July 22, 2002.
Sexual Interference in 2001-2002 With Youthful Females
[60] On April 17, 2002, the offender telephoned the Family and Children’s Services (FACS) office in St. Catharines saying that, after speaking to his pastor, he wished to provide a statement to FACS and to the police respecting his sexual misconduct against his step-daughter, C.R.
[61] On April 24, 2002, T.L. called the police to report that the offender, a family friend, had disclosed to her that he had sexually assaulted her 12-year-old daughter, K.L.
[62] On May 15, 2002, the offender was interviewed by the police respecting sexual interference with C.R. and K.L.
[63] The offender began to have “urges” when bathing C.R. at ages 5 and 6 “when seeing her buttocks”. The offender disclosed that in the 5-month period preceding the interview, he took his step-daughter to a room in his home which was under renovation. He elevated the child’s body by having her stand on something. He then removed his penis from his pants and rubbed it between the girl’s buttocks until he ejaculated. Afterward, he asked the victim for forgiveness and told her that if she reported to anyone he would go to jail. To the offender’s recall, he then returned to his computer to masturbate to child nudist images.
[64] The offender related to Dr. Woodside that when on a sleep-over, a 9-year-old child was sleeping at his home, he pulled her pajamas down and masturbated between her buttocks without ejaculating. He returned to his computer and completed masturbating. It is unclear whether this was an earlier assault of K.L. or some other babysitter.
[65] The sexual assault of K.L., a babysitter, involved these circumstances. In a 2016 psychiatric interview, the offender stated that he really wanted to see the girl’s buttocks having seen her running around the house during the day and observing the “crack of her ass”. He planned to assault her really wanting to see K.L.’s buttocks. In the livingroom, as the 12-year old slept, he pulled her pajamas down and masturbated while looking at her buttocks. As he then moved to lie on top of the youngster in order to rub his penis on the child’s buttocks, he was interrupted by his wife causing him to desist his conduct.
[66] In the May 2002 police interview, the offender also admitted to sexually assaulting his 8-year-old biological daughter, T.W., in the prior 12 to 14 months. The offender disclosed that, after watching pornography, as they lay on their sides on a couch covered by a blanket, he pulled his daughter’s underwear down, put his penis between her buttocks and ejaculated. On the offender’s account, he then asked for the child’s forgiveness telling her that if she told anyone what he had done he could be charged and go to jail.
[67] The offender was charged with three offences of sexual interference with a female child under the age of 14 – crimes to which the offender pled guilty on July 22, 2002.
The Consolidated Sentencing Hearing 2002
[68] On September 12, 2002, in the Ontario Court of Justice, a sentencing hearing was conducted respecting the home invasion cluster of offences as well as the three sexual interference charges.
[69] A presentence report recorded that:
In 1997 he committed the home invasion to get money to pay off his gambling debts. Williams admitted that during this offence he really liked the feeling of power that he had over his captives.
When asked if he realized the extent of the damage he had done to the victims of the sex offences, he at first said “yes”, he realized he had “robbed them of their childhood” and then advised that they would “get over it only if they accept Christ”.
His level of remorse was difficult to assess and the offender attempted to minimize some of his actions during the offences.
The majority of his [personal] relationships have been unsuccessful and filled with abuse.
The offender does not have a very positive education or employment history.
Williams himself informed that the majority of his relationships with women were abusive and that his son was taken away from him due to physical abuse. Although the offender has not been on Probation as an adult, he has violated seven Court Orders.
Due to the number of criminogenic factors (family history, education and employment, anger management issues, sexual abuse and spousal violence) that apply to Williams, the number of violations against Court orders, as well as the nature of his crimes and his minimizations of some of his actions during the offence, he would not be a suitable candidate for community supervision.
[70] The sentencing court concluded in part that “these are horrible offences committed by a sexual predator”. The 30-year-old offender was sentenced to a global disposition of about 8 1/3 years in total, a weapons prohibition order and a life-time s. 161 Criminal Code order.
Indecent Exposure in 2012 to Females Under Age 16
[71] On January 23, 2012, two sisters, aged 10 and 11 years respectively, were dropped off by their school bus in Toronto. Shortly after, as the youths walked along Roselawn Ave. in the direction of their father’s vehicle, the offender pulled his vehicle alongside the girls asking them to come closer. The girls saw the offender masturbating with his right hand. The youths were “very scared”. When the youths’ father called out to them as he saw the interaction with the offender from a distance, the offender reversed his vehicle and sped away. The girls’ father reported the vehicle licence plate of the offender’s car to the police.
[72] The offender informed Dr. Woodside that at the time of the offences he had been masturbating in his vehicle while looking at pornography on his cellphone.
[73] The offender pled guilty on July 16, 2012 to two counts of indecent exposure contrary to s. 173(2) of the Criminal Code.
[74] A sentencing hearing was conducted before the Ontario Court of Justice on July 26, 2012. The presentence report included the following information:
(1) the offender had earlier had an addiction to pornography and “[t]he subject revealed that his sexual history includes an addiction to pornography”
(2) “[a]t the time of his most recent offence, the subject reported that his drinking has increased. He admitted to consuming several shots of alcohol during the course of the work day”
(3) “[t]he subject … stated that he clearly placed himself in an unfortunate and risky position however maintain[ing] that his behaviour was not sexually motivated”
(4) the offender claimed that:
… through extensive sex offender counselling while incarcerated federally he has addressed his issues… He stated that through his counselling he has learned to identify his triggers which include stress and emotional disruption.
[75] In his sentencing submissions, experienced counsel for the defence informed the sentencing judge that: “[h]e acknowledges to me that he has an issue regarding sexual offences and young people”.
[76] With credit for 8 months of presentence custody, the court sentenced the offender to concurrent 1-month terms of incarceration and to a 3-year probation order with several conditions including attendance at the CAMH Sexual Behaviours Clinic (SBC) to actively participate in assessment and counselling.
Breach Probation Convictions 2013
[77] In 2013, the offender served custodial time for breaches of subsisting probation orders.
[78] A term of a 2012 probation order prohibited the offender from communication or association with any person under the age of 18 years except in the presence of an adult approved by the offender’s probation officer. On May 13, 2013, a child was born to the offender and his commonlaw wife, M.C. – a fact withheld from probation services.
[79] At the time of the July 5, 2013 sentencing hearing before the Ontario Court of Justice, following the offender’s plea of guilt, the young child was in CAS custody. With credit for 35 days of presentence custody, the offender was sentenced to a further 10 days’ incarceration to be served intermittently. An 18-month probation order was imposed on conditions which included that the offender was to “attend and actively participate in … rehabilitative programs for sexual deviant behaviour Phallometric testing. Although the offender understood that he was thereby subject to a court order to undergo phallometric testing, he declined to do so submitting that he had taken and passed such testing in the penitentiary. Probation services did not breach the offender for non-compliance.
[80] A term of the 3-year probation order made at the time of the 2012 sentencing for charges of indecent exposure was that the offender refrain from attending any public park, public swimming area, community centre, playground or schoolyard. On October 11, 2012, at 11:22 p.m., police discovered the offender in a vehicle in a public park in Mississauga. At the time, he was engaged in sexual activity with an 18-year-old female escort.
[81] The offender pled guilty before the Ontario Court of Justice on November 6, 2013. With credit for 5 days’ presentence custody, the offender was sentenced to a $500 fine.
Offender’s Personal History
[82] The offender’s parents separated from time to time while he was growing up. At age 11-12 years, he was removed from the family home by Family Services due to being physically and emotionally abused by his father. The offender reported long-term physical abuse by his father. He ran away from home a number of times. At ages 15-16, he resided with an older brother before returning to the family home until about age 17.
[83] The offender related to Dr. Woodside that he recalled being expelled from school in grade 10 or 11 as a result of his behaviour and poor grades. In later years, including while incarcerated, the offender nearly completed grade 12 requirements. While in presentence custody in this case, the offender completed all high school requirements.
[84] Mr. Williams was placed in special education classes by grade 3 or 4. He struggled at school. He suffered from ADHD while in public school. He was not treated with any stimulants at that time. At times, the offender was bullied while in public school.
[85] Over time, the offender provided varying accounts of being sexually abused. He related to Dr. Woodside that he was sexually abused from ages 3 to 14 including by an older brother, a male neighbour, a male stranger, and a female relative. The offender, in interview with Dr. Gojer, also described sexual abuse by a female neighbour.
[86] The offender reported to Dr. Woodside that he was involved in five physical fights between ages 15 and 22. While the offender denied bullying others, he informed the doctor that he was bullied, often within a racial context, from ages 9 to 13.
[87] The offender began drinking alcohol at age 15 and more regularly after age 19. The offender denied using illicit drugs after his teens. The offender reported drinking heavily in 2012 following his mother’s death and again for some weeks prior to being charged with criminal offences in 2012.
[88] Insofar as his employment history, the offender began full-time work in a restaurant at age 15 or 16. He then worked intermittently in construction from ages 17 to 19 while receiving welfare. After other short-term employment, the offender was self-employed from 1997 until his arrest in 2002. In the 1995 to 1997 time period, the offender lost about $25,000 with a gambling addiction. By 2002, he was about $10,000 in debt. After release from prison in 2008, the offender was again self-employed until his 2014 arrest. By this time, the offender was heavily in debt.
[89] The offender has had two commonlaw relationships and two marriages ending in divorce.
[90] The record before the court contains varying accounts of the number of children fathered by the offender which may be as high as 9 children with 4 different mothers. A son, aged 6, was removed from the offender’s care and placed in foster care for three years because the offender had physically abused the boy.
[91] The offender was married to his first wife, A.R., for seven years. The relationship ended in 2002. They were divorced in 2005. The marriage had times of domestic strife including physical altercations. A.R. left the offender a number of times. At one point, the offender informed Dr. Woodside that he had engaged in slapping his partner. He also claimed that he was eventually able to control his anger in the last years of this relationship at a time when he was beginning heavier use of internet pornography.
[92] The offender’s second marriage was to M.C. who he met in 2009. They married in August 2010. They were divorced in 2012 or 2013. The couple had two children which created problems because the offender was prohibited from contact with young children. The offender was charged with breaching probation and CAS became involved relating to apprehension of the children for a time.
Corrections Institutional History
[93] The offender has an extensive correctional history given his criminal record covering over two decades. Only certain aspects need be highlighted here.
[94] On September 12, 2002, the offender received an 8-year total sentence for seven crimes, four of which were sex offences against children.
[95] A November 2002 Educational Assessment and a Vocational Assessment conducted by Correctional Service Canada (CSC) concluded that the offender required educational upgrading as the offender’s grade level equivalency for language was grade 8.3 and for math grade 8.7.
[96] During incarceration at the Millhaven and Warkworth facilities, the offender had vocational training and undertook employment available to him as a penitentiary inmate. The offender also acquired a number of high school credits.
[97] As described more particularly below, the offender underwent domestic violence and sex offender therapy while in federal custody.
[98] In a December 4, 2007 letter to the National Parole Board (NPB), the offender maintained that his crimes were “horrible and destructive to the lives that were affected”. He further promised “to make as much change as I can possibly in my life”.
[99] In a December 17, 2007 decision, the NPB confirmed release of the offender on parole with a statutory release date of January 10, 2008. Apart from statutory parole terms, release was ordered with special conditions including a residential condition in a CRF (Community Residential Centre) approved by CSC. These conditions were as follows:
MUST AVOID CERTAIN
PERSONS
Comment:
A) No contact, either directly or indirectly, with the victims of your offences.
B) No contact with children under the age of eighteen unless accompanied by a responsible adult who has been preapproved by your supervisor.
FOLLOW TREATMENT PLAN
Comment:
Counselling to be arranged by your supervisor to include but not be limited to sex offender programming.
MUST AVOID CERTAIN PLACES
Comment:
A) Must avoid attending public areas where children under the age of fourteen are present or can reasonably be expected to be present. These areas include but are not limited to public parks, swimming areas, day care centres, school grounds, playgrounds or community centres.
B) Not to undertake employment or volunteer activities that involves contact with persons under the age of fourteen.
C) Not to enter any establishment where the primary source of income is derived from gambling.
TO RESIDE AT A SPECIFIC PLACE
Comment:
You must reside at a community correctional centre or a community based residential facility approved by the Correctional Service of Canada.
OTHER
Comment:
A) You must immediately report all platonic/intimate relationships to your parole supervisor.
B) Not to possess, produce, download, upload, view or purchase pornography or any other form of erotica, including but not limited to pictures of children, whether drawn or captured on camera/video, child health medical books/videos, magazines or documentaries, pornographic television channels, x-rated movies on pay-per-view or rented, or pornographic magazines.
C) No access, either directly or indirectly, to the world wide web or internet services, whether this be on someone’s private computer, a work computer, a library computer or at an internet café or any other place where internet access may be found.
[100] The offender was placed at St. Leonard’s House in Hamilton, a CRF. With a final warrant expiry date of September 10, 2011, the offender stood to be under parole supervision for about 32 months.
[101] While at St. Leonard’s House, the offender did some self-employed construction work. The offender regularly attended the Gospel Assembly Church in Mississauga. He participated in family violence and sex offender treatment maintenance programs. There was regular reporting to a CSC parole officer. On some occasions, the offender was late for his call-in to the CRF or he missed calling. The offender was cautioned that if this behaviour continued he would be required to report in-person during the day to the facility. During the currency of the residency condition of his parole, there were about 38 infractions ranging from failures to call in, consuming alcohol, being late for curfew, late call-ins, missed appointment with parole officer, etc.
[102] A March 2, 2010 St. Leonard’s House Case Summary Report recorded that the offender had $19,000 in outstanding traffic ticket fines.
[103] The offender’s first request for release from the residency condition was refused by the NPB. He remained at St. Leonard’s House for 28 to 29 months before release to an approved apartment address.
[104] Assessment For Decision reports of the Hamilton parole office of March 27, 2009 and May 13, 2010 recorded that the offender appeared to have insight into his offending and be able to outline his offence cycle coupled with how he could manage not to re-enter that cycle.
[105] Within a few days of removal of the residency condition, on June 14, 2010, the NPB issued a suspension of statutory release and authorized a warrant of apprehension.
[106] The apprehension grounds related to breaches of NPB statutory release conditions respecting alleged involvement in an intimate relationship without disclosing it to his parole officer and an allegation of being in the presence of a child under 14 years of age. An Assessment for Decision document of the Hamilton parole office, dated June 24, 2010, stated that the offender’s “ability to manage his own urges and addictions (sexual …) in the community is … questionable” and that release into the community without a residency condition would not be acceptable given the offender’s “moderate/high risk for sexual recidivism”. The offender waived his parole-breach hearing and was returned to custody at Warkworth until his September 11, 2010 Warrant Expiry Date.
[107] Turning to the subject of probation, the 3-year probationary term to which the offender was sentenced on July 26, 2012 was due to expire in the summer of 2015. The sentencing of July 5, 2013 resulted in an 18-month probation order requiring the offender to “attend for counselling, assessments, phallometric testing and treatment for sexual deviant behaviour as directed by the probation officer”.
[108] L. Huggins acted as the offender’s probation officer from June 2012 to June 2013. She found the offender to present as cooperative and his reporting attendance to be reasonable although quite a bit of rescheduling was required. Ms. Huggins found the offender to be “challenging” as he consistently sought to get his own way, for example, in having M.C. approved as a supervising adult were he to be in the presence of young children.
[109] S. Ilieva supervised the offender’s probation from late 2013 until his 2014 arrest for the predicate offences. She found the offender to be polite and “seemingly always compliant”.
Psychiatric Treatment/Counselling
[110] After imposition of the 8-year penitentiary term in September 2002, the offender was processed through the Millhaven Assessment Unit (MAU). A November 22, 2002 Correctional Plan Report recorded that, “[a]lthough Mr. Williams acknowledges his behaviour and presents as highly motivated, he does not possess the necessary skills for long-term change”. A November 27, 2002 MAU Psychological Specialized Report recorded that the offender acknowledged having “an almost obsessive interest in sex and an abnormally high sex mechanism” using sex as “a fix”. The offender reported being preoccupied with sex and masturbating with his sexual urges difficult to control, sexual arousal to prepubescent and pubescent females viewed on the internet hours per day, and, “strong and uncontrollable sexual urges throughout his offending”.
[111] The offender successfully completed the High Intensity Family Violence Program at Warkworth – a program held between July and December 2005. At intake, the offender was assessed as high risk for domestic violence recidivism. The offender successfully completed the program meeting some of the goals expected of participants and gaining what appeared to be significant shifts in his understanding of family violence issues. The CSC Final Report of December 23, 2005 also noted that:
(1) the offender was typically late for session in the early stages of the program
(2) he engaged in some grandstanding in class – by the late stages of the program, he was incorporating more of the feedback and seemed more genuine in the program
(3) the offender acknowledged his use of physical abuse in “several relationships”
(4) “he struggled with the notion that his behaviour mirrored a pedophile”
(5) the offender was assessed as a “needy” individual requiring additional maintenance sessions while incarcerated and after release on parole – the management team remained concerned about the offender’s future relationships with women with children.
[112] While in custody, in 2007, the offender attended a Family Violence Maintenance Program. He missed three sessions. On completion of the program, the offender was encouraged to attend further maintenance programs as he required “further work in examining his beliefs”.
[113] After initially refusing participation in the Moderate Intensity Sex Offender Program in 2005, the offender enrolled in the program which was held from June to November 2006. This program, designed to reduce and manage the risk of sexual offending behaviour, is a widely respected program in the correctional field. The sessions were for a number of hours five days a week. The offender successfully completed the program.
[114] The January 22, 2007 Final Report relating to the offender’s participation in this program included this information:
(1) the offender was eager to participate and gain insight and open in discussing his sexual crimes
(2) there was some excessive participation on the offender’s part and some difficulty dealing with issues independently
(3) the offender was “not always able to demonstrate that he could apply cognitive restructuring skills to manage effectively his thoughts that arose in relation to everyday issues”
(4) phallometric testing revealed no response to sexual interaction between consenting adults and similarly no response to scenes depicting prepubescent females with no arousal to child stimuli
(5) the offender worked throughout the program gaining “insight into his controlling demeanour and impulsivity”:
As Mr. Williams has gained insight into his risk factors and addressed a number of his treatment targets, his dynamic risk level was rated as moderate at the end of the program. However, Mr. Williams’ dynamic risk level would significantly increase if he were to display difficulties in sexual and general self regulation, especially in regards to sex drive preoccupation, deviant sexual interests, impulsive behaviour, and other poor cognitive problem solving skills. He would also increase his risk to reoffend if he were to demonstrate problems in intimate relationships such as jealousy, attempts to be controlling, and unfaithfulness.
Mr. Williams successfully completed the current moderate intensity sex offender program. Upon his release to the community, he will need to participate in a sex offender maintenance program.
[115] The NPB requires that sex offenders released from federal custody take sex offending treatment while on parole. During his parole period, 2008 to 2010, the offender attended the Sex Offender Relapse Prevention/Maintenance Program, community-based psychotherapy programming conducted biweekly by Dr. Vitelli and his team in Hamilton. This included both group and individual sessions.
[116] A March 2009 file note of Dr. Vitelli’s team recorded that the offender displayed motivation and positively participated in group discussions. By mid-February 2010, he had completed 14 individual and 26 group sessions. While, by the conclusion of the program, the offender was rated as low risk for sexual offence recidivism, Dr. Vitelli recommended ongoing sex offender treatment maintenance program attendance. In May of 2010, the offender’s parole officer supported removal of the parole residency condition at the CRF housing noting:
The potential is at a high level as the subject has now been in the community for 28 months with minimal difficulties. There is good community support and the subject has a positive outlook. Employment is stable and secure and there is every indication that Williams has a well thought out release plan.
PERSONAL/EMOTIONAL ORIENTATION
The writer has had the opportunity to review the most recent report from the Sex Offender Program. It is noted that the offender is “stable and managing his parole effectively”. The therapist supports the removal of the residency condition.
In all, the offender has worked diligently within the sex offender program to minimize his risk factors. The offender has willingly engaged in the group discussions at the program and offers insightful comments that would indicate his understanding of his own sexual deviance.
[117] With the imposition of probation orders in 2012 and 2013, the offender came under the supervision of probation services of the Ontario Ministry of Community Safety and Correctional Services.
[118] The offender was referred by probation services to CAMH. Actuarial testing assessed the offender as high risk for general recidivism and a moderate risk for sexual reoffending. Dr. J. Rootenberg’s February 14, 2013 Consultation Report noted this information relating to his sexological assessment:
(1) the offender denied any current pedophilic interests or behaviours – “I am just interested in adult women”
(2) he had had no pedophilic interests since 2002 – a time when he had been addicted to sex including interest for “sex with children, no age limit or boundaries”
(3) the offender declined phallometric testing
(4) the offender attributed his past sexual offending to his own dysfunctional childhood
(5) the doctor’s diagnostic impressions:
Sexual Disorder (history of pedophilia, exhibitionism)
Personality Disorder.
[119] Laura Huggins, one of the offender’s probation officers, cautioned the offender that refusal of phallometric testing could result in a breach of probation charge. The offender maintained that he had taken phallometric testing in 2003 (Millhaven) and 2005 (Warkworth) with known results. The offender continued to resist the retesting and the test was never repeated. Ms. Huggins’ March 15, 2013 file note recorded that the offender “tends to push the boundaries as often as possible”.
[120] The offender refused to provide consent to the CAMH SBC for phallometric testing. Dr. Heasman testified that phallometric testing, generally required as part of the initial assessment, “would have been helpful”. In her March 2014 Assessment Report, Dr. Heasman noted:
Mr. Williams refused phallometric testing as part of his SBC assessment, however, contained in the aforementioned report provided to this writer, was information regarding phallometric testing in the federal system. The report indicated that “subsequent testing” (suggesting Mr. Williams had at least two sets of phallometric testing) revealed, “one moderate and one low response to adult slide stimuli. Williams showed no response to videos depicting consenting sexual interaction between heterosexual adults, and no responses to scenes depicting pre-pubescent females. The clinicians concluded that Williams had shown no arousal to child stimuli, and interpreted the findings as indicating no need to provide intervention aimed at assisting Williams in controlling his sexual arousal”. Mr. Williams indicated during his initial SBC assessment that in years past, he did have arousal to children, however maintained that was no longer the case since his release from the federal system. Mr. Williams did not endorse deviant sexual interests during his time in the SBC group. The phallometric testing offered while Mr. Williams was in the federal system appears different than that offered at the SBC, and it is unclear what the statistical properties are of that test and how they compare to the test offered at SBC.
[121] As of September 10, 2013, the LSI-OR (Level of Service Inventory-Ontario Revision) scored the offender at 24 being a high risk for general recidivism. Scoring of STATIC 99R and STABLE 2000 tests placed the offender at a moderate risk for sexual reoffending.
[122] At the direction of probation services, the offender enrolled in CAMH’s SBC for the Mainstream Sex Offender Relapse Prevention Program, a form of sex offender maintenance programming administered by Dr. A. Heasman. The group session program lasted 16 weeks between September 2013 and January 2014 with 90-minute sessions.
[123] In her November 14, 2013 file note, Dr. Heasman recorded:
He spoke well to the idea of reevaluating automatic thoughts before they escalate (i.e. acting on them), especially when it comes to sexual fantasies, although it is unclear at this point as to whether he truly follows his own advice or if he is just regurgitating the knowledge he has from many years of therapy.
[124] Dr. Heasman testified in this proceeding that the SBC program was the most intensive group therapy for sexual offenders in the community available at the time. The program’s approach involved CBT (cognitive behavioural therapy). The doctor’s file notes relating to the November 2013 to January 2014 sessions included this information:
(1) in session, the offender’s commentary was generally made “with shallow affect” or limited emotional depth
(2) the offender “doesn’t evidence significant internalization of the comments, but more a repetition of the various concepts or appropriate comments”
(3) the offender at times had to be redirected as the content of what he was saying was not always relevant or helpful
(4) on occasion, it was difficult to notice any substantive content in what the offender contributed
(5) the offender engaged in significant “impression management” in an apparent effort to acquire a favourable evaluation report.
[125] Dr. Heasman testified here that the offender appeared to be very engaged and spoke of the value of the treatment he was receiving - “things he said on the surface suggested he was very interested in treatment”. The doctor found that while the offender “knew the lingo”, he exhibited relatively “superficial knowledge” and it was unclear as to how he was integrating concepts into his life – in her words, “the application of the knowledge, how he integrated it, internalized it, was always in question for me”.
[126] While the offender completed the program, he missed 4 of the 16 group sessions. Dr. Heasman found the offender to be an active group member who often tried to dominate sessions. In her records, the doctor noted, on the offender’s part, some lack of full internalization and connection to the relevant concepts.
[127] Probation officer Ilieva considered that the offender’s completion of the group therapy sessions with Dr. Heasman essentially fulfilled the requirements of the probation condition for treatment.
[128] The offender asked to continue with individual therapy sessions, an approach which probation services considered to be voluntary on his part. Dr. Heasman testified that, being “quite concerned” about the offender’s potential risk for sexual reoffending, she offered additional individual therapy sessions to him.
[129] Individual sex offender therapy sessions with Dr. Heasman began in February 2014. The offender’s attendance was disappointing with the doctor forwarding a May 2014 email to the offender’s probation officer:
I thought it was about time that I be in touch about Kirk W. As you know hopefully from my group treatment report he completed group but requested to attend individual therapy weekly. His group treatment was a struggle in terms of his attendance/timeliness, and individual seems to be a challenge too. Here is a run-down for you of his weekly individual appointments so you can get a sense.
May 5 – no show
April 28 – no show
April 21 – cancelled
April 14 – wife called to cancel appointment in advance
April 7 – a few minutes late
Mar 31 – 10 minutes late
Mar 27 – over an hour late
Mar 17 – 10 minutes late
Mar 13 – no show (phoned on Mar 18 to indicate he had been sick)
Mar 6 – over an hour late
Feb 24 – no show (called Mar 3rd to explain)
Feb 18 – arrived on the wrong day altogether for his appointment (he thought it was the right day)
Feb 6 – Kirk cancelled in advance due to illness
Jan 29 – 30 minutes late
So needless to say this has been challenging. Kirk and I have discussed this repeatedly and it was an area that he wanted to work on – but it clearly remains a problem. I can’t continue to set aside time for him given this pattern as it takes up a spot for someone else. I’m not sure that there are significant treatment issues that he wants to work on anyways, even when he does attend. I had been clear to him that if he can’t attend he needs to let me know in advance.
I am happy to call him and let him know that we can’t continue in this pattern and should he wish to attend for further support he can attend our follow-up group every other Monday evening …
[130] Dr. Heasman testified that as the individual therapy went on, the offender’s life seemed to be more chaotic with CAS and marriage issues. It seemed that treatment was beginning to take “a back seat”.
[131] The offender discontinued his attendance in Dr. Heasman’s treatment/relapse sessions in April 2014 electing to focus on work and ongoing CAS court litigation. This decision was discussed with his probation officer who considered that it would not be inappropriate for the offender to focus on operating his business with a view to stabilizing his financial situation during the summer when his somewhat seasonal work would peak. Ms. Ilieva testified that the offender knew that if he felt overpowered emotionally, he could return to Dr. Heasman at any time or contact her directly even without an appointment.
[132] On June 9, 2014, the offender told his probation officer that he was considering returning to see Dr. Heasman in the summer. He never did.
[133] Dr. Heasman testified with respect to the offender that he moved from sporadic attendance until “[h]e just stopped attending” without indication from him as to why he stopped. She considered that this had implications for “his risk”.
CORRECTIONAL SERVICE CANADA EVIDENCE
[134] Angela Beecher-Beekhoo, a CSC Parole Supervisor for the Ontario Region, described the treatment regime currently available in the federal penitentiary system. As of 2014, the CSC uses an Integrated Correctional Program Model with a more holistic approach than its earlier programming. The revised correctional program is designed to address multiple risk factors.
[135] In the case of a sex offender, an inmate will undergo a sex offender primer programme and then the Sex Offender Integrated Correctional Program with high intensity sex offender training – a 104-session program including some individual sessions. While on parole in the community, sex offender maintenance programs of shorter duration and lesser intensity are made available by CSC (“it’s not an intensive treatment by any means”).
[136] An offender designated as a dangerous offender and sentenced to a determinate sentence of incarceration (for example, a 9-year sentence), to be followed by a non-custodial 10-year LTSO, would be subject to the following regime:
(1) the offender would be eligible for full parole after 1/3 of his sentence of imprisonment, i.e. 3 years
(2) the offender would be statutorily entitled to be parolled at the 2/3-point of his sentence (the Statutory Release date), i.e. 6 years
(3) in exceptional cases, an offender may be referred for detention to his Warrant Expiry date (9 years) if the CSC believes he is likely to commit an offence causing death or serious bodily harm to another, or is likely to commit a sexual offence against a child if admitted to parole
(4) once released on parole, the offender would be subject to statutory and special parole conditions set by the NPB until the conclusion of his sentence (the Warrant Expiry date) – at the end of 9 years
(5) on the recommendations of the CSC, the NPB sets special conditions for the LTSO which may include a residency condition, (for up to 365 days subject to renewal), restrictions on internet access, reporting of any intimate relationship, follow-up treatment as recommended by an approved medical doctor, etc.
(6) if there is a reasonable suspicion of elevated risk, the offender’s parole officer may suspend parole, have him apprehended and, for example, recommend to the NPB for stricter controls which may or may not be accepted by the NPB – there can be no revocation of the LTSO – the term of the LTSO stops running during the period of suspension
(7) at the conclusion of the 10-year term of the LTSO, the end of year 19, the offender is no longer subject to government supervision
(8) if there is reason to believe that the offender has breached a condition of the LTSO, a criminal charge may be recommended by the CSC and the NPB to the police – s. 753.3(1) of the Criminal Code creates the crime of breach of a LTSO punishable by imprisonment not exceeding 10 years which sentence interrupts the running of the remainder of the term of the LTSO
(9) where an offender serving a LTSO is convicted of breach of a condition of the Order or a serious personal injury offence, the prosecution may institute an application seeking to have the court engage in a new sentencing for the original predicate offence(s) including the option for imposition of indeterminate imprisonment (s. 753.01).
[137] An offender designated as a dangerous offender and sentenced to an indeterminate sentence is governed by these principles:
(1) the offender is eligible for full parole 7 years after the date of his arrest and eligible to apply for day parole 4 years after his arrest date (the average number of years served in custody by those dangerous offenders at large on day parole in 2016 was 19.2 years)
(2) after the 7-year date, if the offender has not been released on day or full parole, every 2 years thereafter there is a NPB review of the offender’s suitability for day or full parole
(3) when released from custody, for supervision for the remainder of his life, the offender will be subject to parole conditions set by the NPB – special conditions of parole will address case-specific factors with a view to support and structure for successful reintegration of the offender into the community.
(4) when the offender’s parole officer reasonably believes that there is an elevated risk, an imminent breach, or a direct breach of a parole condition, the parole can be suspended and the offender apprehended – with the parole officer making a recommendation to the NPB, the Board may cancel the suspension, or modify parole conditions, or revoke the offender’s release with placement again in custody to continue serving his indeterminate sentence.
[138] In either case, the NPB does not impose a condition requiring an offender to take a particular drug such as an antiandrogen medication to reduce sex drive. The relevant condition may require the offender to follow such pharmacological regime as considered reasonable and necessary by an approved medical doctor. Where the offender fails to comply with the physician’s direction respecting taking particular medicine, that refusal will be reported to the offender’s parole officer for such action as above described. If the physician in question feels the prescribed medication is no longer necessary, for example because of his or her view of reduced risk or the impact of side effects on the patient, then the parole officer will receive notification and, in turn, the NPB.
[139] Insofar as CSC supervision of an LTSO, an offender’s parole officer is responsible for day-to-day management of the order. Ms. Beecher-Beekhoo provided this information. A parole officer does not physically follow a parolee. A parole officer undertakes checks by phonecall and with collateral contacts. Parole supervision entails “a lot” of self-reporting. As to the issue of monitoring an offender’s disclosure of entering into an intimate relationship, “[i]t’s challenging”. With respect to a parole condition regarding internet access, “[t]hat’s another challenging condition” and “a very difficult condition…to monitor”— with access available to a parolee by various means including phone, tablet and computer. For some offenders who have self-employment, it could be “a grave concern” and “very challenging” for parole services.
PSYCHIATRIC EVIDENCE
Diagnoses
[140] Dr. Woodside spent about 14 hours over five days with the offender. His October 14, 2016 assessment report concluded that apart from the offender’s Pathological Gambling Disorder (currently in remission), the following psychiatric diagnoses were appropriate:
Multiple Paraphilic Disorders:
(1) pedophilic disorder
(2) other specified paraphilic disorders:
non-consenting, coercive sexual preference (“rape preference”)
urophilia
coprophilia
partialism – attracted to buttocks
(3) Exhibitionistic disorder
(4) Voyeuristic disorder
and
Antisocial Personality Disorder.
[141] Paraphilias are underlying deviant sexual preferences. Paraphilic disorders are generally diagnosed through phallometric testing, self-reporting of the subject, or on the basis that the individual has engaged in such activities not reasonably explainable by any other psychiatric diagnoses.
[142] Pedophilic disorder relates to a primary sexual interest in prepubescent and pubescent-aged children. Dr. Woodside’s position is that the evidence of the presence of this paraphilia in the offender’s case is “clear and compelling” particularly given his history of offending against children, his heavy use of child pornography over time, and his admission of sexual interest in children. The diagnosis is clear even in the absence of phallometric testing. The offender’s pedophilic disorder is non-exclusive as he also participates sexually with adult females.
[143] Insofar as a pedophilic disorder diagnosis, Dr. Gojer concurred with Dr. Woodside’s assessment. Although the offender denied such a sexual preference to Dr. Pomichalek, Dr. Gojer eventually pushed the offender beyond minimization securing an acknowledgment of pedophilic sexual preference. The evidence was “very clear” that the offender has “some underlying preference for sexual contact with children”. While the offender’s “erotic preference for children” manifests itself when he is under stress or pressure, “the urge is always there”. In his evidence, Dr. Gojer noted that the offender had admitted to him sexual interest in children as young as 5 years of age – a fact “he hadn’t admitted to other people”.
[144] Dr. M. Pomichalek, a psychologist with no speciality in extended treatment of sex offenders, offered opinions generally at odds with Doctors Woodside and Gojer. For example, with the offender telling the doctor, “I am not sexually attracted to children”, the witness informed the court that while the offender has “a problem with sexual interests”, “I’m not sure it’s a preference for children”.
[145] The offender declined to participate in phallometric testing although Dr. Woodside raised the subject in more than one interview. Dr. Woodside testified that phallometric testing of the offender would have been of some value to his assessment despite the fact that the test only identifies about 70% of those test subjects with a pedophilic disorder. The negative phallometric test results from the CSC testing did not cause him to doubt his pedophilic disorder diagnosis. The CSC test was less sophisticated than the CAMH SBC phallometric testing using a volumetric apparatus. Unlike the CSC testing, CAMH has published respecting the accuracy of its methodology. The protocol used by CSC appeared to be self-defeating in encouraging a test subject to distract from showing arousal. A test subject can manipulate the test results in his favour by excessive masturbation before the test. It was also unclear whether the CSC phallometric testing included coercive/rape scenarios.
[146] Dr. Gojer testified that CSC erred in concluding that the offender did not have a serious problem with pedophilia based upon its phallometric testing. The test result was “an inaccurate finding”. The doctor was uncertain whether, in that testing, the offender was perhaps able to control his urges sufficiently in the laboratory setting to defeat detection.
[147] Non-consenting, coercive sexual preference (“rape preference”) refers to arousal to forcing sexual activity on non-consenting individuals and/or arousal to control and dominance over others. Dr. Woodside considered the evidence to be relatively clear respecting this diagnosis given the circumstances of the 1997 offences and the predicate offences, the offender’s self-report of arousal while dominating or controlling his victims, as well as the documented resort by the offender to coercive sex websites.
[148] Urophilia refers to sexual arousal to the use of urine during sexual activity, for example, having a partner urinate on the individual or vice versa.
[149] Coprophilia refers to sexual arousal to defecating upon a partner or vice versa.
[150] Partialism involves sexual arousal to a specific part of the body, in this case the offender’s obsession with female buttocks.
[151] Exhibitionistic disorder involves the exposure of one’s genitals to strangers, accompanied at the time or later, by masturbation to the thoughts of exposing one’s self.
[152] Voyeuristic disorder involves sexual arousal to the act of witnessing others engaged in sexual activity or the act of undressing. The offender informed Dr. Woodside that after “peeping” in on his sister-in-law and other children in 2002, he thereafter masturbated to memories of what he had seen.
[153] Dr. Gojer, who spent a total of five hours with the offender, was in agreement that the offender does not have a single paraphilic disorder but rather “polymorphous” deviant sexuality including some erotic preferences for feces and urine, “some interest in being coercive” sexually, “problems with exhibitionism”, as well as partialism in the form of interest in female buttocks and female feet. In the doctor’s words, “He’s not able to contain the sexual urge”.
[154] In Dr. Gojer’s view, the offender’s sexual deviations have been “the core and central part” of his criminal offences “that make him a dangerous person”.
[155] On the whole of their evidence, Doctors Woodside and Gojer did not agree with Dr. Pomichalek’s opinion that there was no evidence of coercive sexual preference on the offender’s part or that a pedophilic disorder diagnosis was “debatable”.
[156] Dr. Woodside considered that there was “very strong evidence” to support the diagnosis of antisocial personality disorder in the offender’s case together with significant psychopathic personality traits.
[157] The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since age 15. Individuals with the disorder, according to Dr. Woodside, frequently are deceitful and manipulative, blame victims for their fate, see relationships in terms of benefits to themselves, and may minimize the harmful consequences of their actions or simply indicate complete indifference. The expert described the offender’s behaviour as “very egocentric”, and selfish in nature with an absence of consideration of the impact of his actions on others. Dr. Woodside noted that the offender indicated that most of his criminal offences “involved some degree of thinking beforehand”— “battling in your mind, before you give in”.
[158] Dr. Woodside reported that an antisocial personality disorder tends to have a chronic course, while becoming less evident by the fourth or fifth decade of life.
[159] Dr. Gojer disagreed with Dr. Woodside’s diagnosis of antisocial personality disorder on the basis of his opinion that, technically, certain DSM-5 criteria for the disorder did not exist in the offender’s case. That said, the witness testified that he did “really see much difference” between his diagnosis and that of Dr. Woodside. It was “really splitting hairs” as he would probably describe the offender as having “a personality disorder with antisocial traits”. Dr. Gojer frankly acknowledged that labels should not be the focus (“we have to look beyond labels”) – “[h]e’s got clear antisocial behaviours” with psychopathic traits – the different diagnostic descriptor he would use does not “minimiz[e] the seriousness of the man’s behaviour”.
[160] Dr. Pomichalek offered the opinion that the offender does not have elevated or significant psychopathic traits.
[161] Dr. Gojer testified that there was “no doubt” that the offender’s behaviour has “prominent” psychopathic traits with “a certain degree of cold and callousness to his behaviour … lack of empathy … a problem with impulse control” and “a shallowness in his affect”. Dr. Gojer noted that even the most impulsive person “has some thoughts and cognitions” that go into the offending behaviour. In the offender’s case, his sexual offending makes the psychopathic traits “look even worse”.
Risk Assessment
[162] The medical witnesses employed various diagnostic or actuarial tools in preparing their diagnostic opinions and risk assessments relating to the offender. The use of these statistical measures is fully described in the witnesses’ respective reports and testimony in this proceeding.
[163] The Psychopathy Checklist – Revised (PCL-R) was administered by Drs. Woodside, Gojer and Pomichalek. While not a risk assessment tool per se, the instrument is the gold standard for measuring psychopathy.
[164] Dr. Woodside scored the offender at 29 of a total possible score of 40 – “falling just short of the diagnostic threshold [30 score] for psychopathy”. Seventy-nine (79.5%) of the standardization sample of male prison inmates would have received a lower score. With the test’s margin of error, the doctor’s range of score would be 26 to 32.
[165] Dr. Woodside was unable to explain the differences in scoring the PCL-R between himself and Dr. Gojer as Dr. Gojer’s material did not include notes relating to the foundational scoring of the instrument’s 20 individual items. Similarly, as Dr. Pomichalek only provided a raw score, critique of his scoring was not possible. Dr. Woodside noted however that there was a common score of 26 with himself and Dr. Gojer when taking into account the overlap score applying the recognized margin of error for this test.
[166] Dr. Gojer scored the PCL-R at 23 or, with the margin of error, in a range of 20 to 26. Dr. Pomichalek, a psychologist, scored the PCL-R at 21. Dr. Gojer testified in relation to risk assessment instruments that, “…it’s not the score that really matters, it’s the behaviours that contribute to the scores that are more important”. In cross-examination, this exchange took place:
A. At the end of the day I have to ask myself, is there any more advantage am I going to get over nitpicking about the score? If I gave him three more scores on the PCLR, is he going to be more dangerous or less dangerous? It’s not going to change the opinion.
Q. It’s not going to change your opinion.
A. Yeah, that he’s a high-risk.
[167] Dr. Woodside scored the offender at 26 on the Sex Offender Risk Appraisal Guide (SORAG) placing his score higher than 83% of sexual offenders in the developmental sample. The instrument considers both non-sexual and sexual violence. Eighty-four (84%) of offenders in the same risk category committed a new violent sexual offence within 12 years of opportunity. In the doctor’s view, taking into account the estimated measure of error associated with the SORAG, the expected probability of violent recidivism expected of the offender within 12 years of opportunity would range between 76% and 93%.
[168] Dr. Gojer scored the offender lower on the SORAG at a point corresponding to 59% of the normative sample going on to reoffend violently within 10 years. This supported the offender being at a moderate to high risk to reoffend violently. Dr. Gojer accepted that Dr. Woodside’s scoring on the various test instruments had bases and was not unreasonable.
[169] Dr. Woodside administered the STATIC-99R, an actuarial assessment instrument devised as a screening tool to identify individuals at risk for future sexual offending. The offender’s score was higher than at least 99% of individuals in an updated developmental sample of routine sex offenders – approximately 48.5% of individuals with the same score committed a new sexual offence within 10 years of opportunity. Put differently, the offender’s risk of recidivating sexually was 7.32 times that of the average sex offender.
[170] Dr. Gojer administered the STATIC-2002R concluding that the offender was a moderately high risk to reoffend sexually. His use of the SVR-20 supported the view that the offender was a high risk to reoffend sexually. The doctor’s report concluded that the offender was “a high risk to reoffend sexually”.
[171] Despite placing the offender in bin 8, the top category on the STATIC-99, an indicator of high risk for sexual reoffending, Dr. Pomichalek however expressed the view that, at age 63, the offender would be at low risk for reoffending.
[172] Dr. Woodside also used the Risk for Sexual Violence Protocol (RSVP), the results of which, in his view, supported the offender’s case as high/urgent priority. The doctor considered the results or risk estimates of the actuarial instruments he administered not to be overestimates. The doctor testified that clinical review of the offender’s history and “all … tools” were pointing in the same direction of a “high-risk” to reoffend.
[173] Dr. Woodside concluded that the offender is at high risk for sexual reoffence. Dr. Gojer testified that “at the end of the day”, based upon his overall clinical assessment, the offender poses “a high risk of reoffending in a sexual manner”. The doctor testified that:
A. I would come to an opinion that he’s a high-risk without any of the risk assessment instruments. His clinical history points to a person who is a high-risk.
Q. His clinical history point to a person of high-risk…
A. Who is a high-risk. His legal history points to a person who is a high-risk.
I’m aware, I’m sensitive to the scores, I’m sensitive to the scores that Dr. Woodside has, sensitive to the scores that Dr. Pomichalek has, but I place a lot of weight on the clinical aspects in this case and the numbers simply confirm my clinical opinion.
Prognosis for Treatment/Management
[174] Dr. Woodside testified that there is no cure for a pedophilic disorder which remains present throughout a person’s life – “We don’t really have any program that has been documented to significantly decrease recidivism in that group”.
[175] The doctor noted that treatment of sex offenders has commonly followed RNR principles (Risk/Needs/Responsivity) – titrating treatment in proportion to perceived risk, addressing criminogenic needs leading to the offender engaging in criminal behaviour, and, delivery of treatment taking this into account.
[176] Dr. Woodside testified that despite treatment efforts directed to treating sex offenders, the two most recent and respected studies, both randomized controlled studies from the United States and Australia, have concluded that treatment has effectively no impact on recidivism. This conclusion has been concurred in by Cockrane Review Group reports of 2007 and 2014. As summarized by Dr. Woodside, “that there is really no good evidence that what we do reduced recidivism for sex offenders” – “we don’t have great evidence that what we do, either psychologically or pharmacologically, is of value”.
[177] The doctor observed that recent advances in treatment such as they may be, including mindfulness-based cognitive models, are “as yet, untested in terms of their ability to reduce recidivism”.
[178] In terms of any individual with an Antisocial Personality Disorder in the magnitude of the offender’s PCL-R score, there is “no good evidence identifying treatments as clearly assisting in reducing recidivism”.
[179] Dr. Woodside informed the court that while there is a perception that individual treatment fares better then group treatment, we do not have the resources to deliver such treatment.
[180] Dr. Gojer acknowledged that sexual deviations are “very difficult to treat”. He opined that the treatment offered by the CSC high intensity sex offender stream of the integrated correctional program, with its significant number of hours of treatment sessions and their intensity, and the opportunity for repetition, is beneficial to sex offenders. Cognitive behavioural therapy, supplemented by emotional strategies to deal with transpiring events and triggers, contributes to control of sexual offenders.
[181] Dr. Woodside testified that a subject’s age relates to risk of reoffence. The overt features of Antisocial Personality Disorder become less evident in an individual’s forties or fifties. An overall decrease in violent offending is generally expected after age 45. The expected decline for sexual offending is more gradual with a significant decrease expected when an offender is in his sixties. That said, the witness noted that he regularly sees 10 to 12 adult males yearly who, in their 60’s and 70’s, have committed sexual offences – mainly pedophilic offences. Dr. Woodside voiced concern that, in circumstances where an individual, like the offender, arguably commits his most violent offence at age 42, he may be in contrast to the general pattern respecting advancing age. As well, given the STATIC-99 scoring, the offender would likely be a significant risk to reoffend sexually after age 60.
[182] Dr. Gojer considered the aging factor to be important – as a sex offender approaches age 60, there is a biological expectation of “a steep decline in sexual behaviours” with a male’s waning sexual interest by age 60. At this age, sexual offences against adult females are almost zero, although “[t]here may be some risk to children”. Dr. Gojer acknowledged that he was not submitting that males had no sex drive after age 60 (“It doesn’t mean there will be no sex drive”), and when questioned about whether older males continue to commit sex crimes, the doctor responded, “I’m not saying there aren’t”. In the offender’s case, the doctor would expect to “see a high risk to reoffend being attenuated as time goes by”.
[183] Dr. Woodside was pessimistic respecting treatment of the offender. His pedophilic and non-consenting course of sexual preference are relatively fixed life-long disorders. Subjects with an Antisocial Personality Disorder are “difficult” to treat “with there being little evidence that these individuals benefit from treatment in terms of recidivism”. The offender’s ADHD/learning disability will impact on treatment delivery and the subject’s ability to benefit.
[184] The doctor’s report noted that the combination of diagnoses in the offender’s case “renders the prognosis for successful treatment (a reduction in his risk for future offending) extremely poor when compared with other incarcerated offenders”.
[185] Dr. Woodside noted as well that individuals scoring 25 or higher on the PCL-R show poorer response to treatment – the offender is likely to experience significantly greater difficulties persisting in treatment. While the offender has presented well, a sort of model inmate, participating in prior treatment while incarcerated, this has been at a “superficial” level, and, “exposed to a great deal of treatment and therapy over time … he knows the language of treatment” – as well, at times, “deceiving others and possibly [with] some self-deception”, for example, in attributing his sexual offending to his own sexual abuse as a child.
[186] Dr. Woodside noted the minimization on the offender’s part respecting his pedophilic disorder – “[h]e eventually advised me that he accepted that he had pedophilic thoughts when under stress”. He was slow to admit this to Dr. Gojer and then denied it to Dr. Pomichalek.
[187] Dr. Woodside informed the court that there is little research suggesting that expressions of desire to pursue treatment relate to reduction in recidivism. Similarly, expression of remorse is not associated with reduced recidivism.
[188] Dr. Woodside particularly emphasized that the offender “has been offered and received very extensive treatment in the past, both while incarcerated and once in the community” and “[d]espite this very extensive treatment, it does not appear to have been effective in reducing his sexual offending behaviour”. There is “little reason to think that treatment outcome is going to be markedly different” in the future.
[189] Dr. Gojer informed the court that there is “a great need” for the offender, who has cognitive distortions, to engage in “very intensive” counselling and sex offender treatment. In the doctor’s view, while the diagnosis may be very easy in the offender’s case, “it’s the treatment that’s difficult”. In Dr. Gojer’s view, the treatment must be multi-modal with multiple persons involved. It would be necessary to target both thinking and emotional components in ongoing cognitive behavioural therapy. The offender will require therapy on an individual basis.
[190] The doctor accepted that the offender had previously done well in treatment “on paper”. The offender tends to use clichés in discussion of treatment and makes superficial statements devoid of substance respecting self-analysis of his offending behaviour – “he hasn’t learned to apply those concepts” and has not developed insight into his offending.
[191] In addition, Dr. Gojer was critical of the offender being placed in the moderate, as opposed to the intensive, sex offender treatment program at Warkworth. The result was that the programming did not go far enough to deal with stress, anxiety and conflict resolution or the emotional strategies necessary to deal with the offender’s offence cycle of stress, including masturbation and accessing pornography, leading to sexual offending. The currently available high intensity programming offered by CSC has greater depth and intensity and a greater number of sessions.
[192] Dr. Gojer acknowledged that, over time, the offender has demonstrated lack of insight, some tendencies to deny and minimize as well as “variable levels of commitment” to deal with the issues. Communicating on his clinical assessment of the offender, the doctor testified that while he is of the opinion that the offender has the capacity for empathy, particularly with training – “I would have liked to see more empathy, I didn’t see it”.
[193] An essential component of Dr. Gojer’s view of control and management of the offender going forward relied upon the contribution of antiandrogen medication. Sex-drive reducing medication such as Lupron, designed to reduce testosterone levels to a level not unlike that of a 60-year-old or older, and in turn reduction of sexual fantasies and urges, and desire for sexual contact, would optimally be administered 6 months prior to release from jail and maintained through a LTSO for at least 7 to 10 years until the offender was into his sixties. The witness acknowledged that: “But then if you’re asking me do we want a perfect setting, I don’t think the answer is perfect … Life doesn’t work that way”.
[194] Dr. Gojer accepted that where an offender is subject to such pharmacological intervention, his underlying preference for children does not go away. The doctor testified that in addition to antiandrogen medication to eliminate libido, and to assist impulse control, he would recommend concurrent use of an SSRI (Selective Serotonin Reuptake Inhibitor) such as Prozac or Zoloft, to assist in treating depression, anxiety, and compulsive behaviours.
[195] Dr. Gojer provided this further evidence:
(1) “[t]here’s no research that I’m aware of as to the outcome of specific individuals on antiandrogen drugs who have been released in the community”
(2) the problem with research trials relating to such medications is a failure to follow a strict research paradigm, for example, double-blind methodology
(3) antiandrogen medication has health side effects of varying seriousness
(4) a subject will have some sex drive even when on the drug but very substantially reduced
(5) the use of the drug can be defeated by various means such as testosterone patches or injections or use of anabolic steroids
(6) beyond self-reporting, a subject’s compliance with an antiandrogen drug regime would require regular monitoring
(7) the NPB will not enforce compliance with a court’s recommendation for use of antiandrogen medication – it will be a factor for its consideration
(8) the drug must generally be purchased which may necessitate an offender to be employed or on ODSP
(9) this pharmacological intervention must be woven into a parole condition in such a way as to constitute a parole breach should the parolee fail to comply
(10) there is a likelihood of an offender ceasing medication once not externally required to comply, for example on termination of a LTSO:
Why would they take it? It’s going to take away their sexuality. What you want to do is, you want to use the antiandrogen to get them to the hypothetical age of – magical age of 60, or just after. So you want to tie it over when the natural decline of testosterone is there. So when you take it – take them off the drug, nothing says that a male at the age of 60 or 65 can’t take testosterone externally and boost their sexual prowess, increase their desire. You can still do that.
[196] Dr. Woodside, as a practitioner administering antiandrogen medication to some sexual offenders, accepted that there exists a “possibility” that this intervention can produce “some reduction” of risk for sexual reoffence. The doctor believes that he has achieved some success with such treatment. The doctor acknowledged that such medication can reduce sex drive “to a greater or lesser extent”. Common antiandrogen medications, administered by monthly injection to reduce testosterone levels, are Lupron, Provera and Androcur. Application of such medication, reducing fantasies and sexual desire, does not however change the nature of an offender’s sexually deviate interest although it may affect “functional ability” such as getting an erection or ejaculation.
[197] Dr. Woodside frankly acknowledged that his use of antiandrogen medication is “off-label”, not approved by Health Canada, and accordingly used by physicians at their “own risk and peril”. Such pharmacological intervention is not a “panacea”. He does not consider himself an expert respecting these drugs. He too has prescribed parallel use of an SSRI. He was disappointed, but not surprised, by a 2015 report of a Cochrane Review Group negatively reporting on the use of sex-drive reducing medications to treat sex offenders. The doctor summarized the report’s conclusion in these terms – the “evidence is grossly lacking in terms of whether these treatments reduce recidivism for sexual offenders”. Dr. Woodside acknowledged that good evidence and research is lacking without randomized, controlled and double-blinded studies (“the evidence is very limited”).
[198] Dr. Woodside provided this further information:
(1) the antiandrogen medication, which is expensive, can have potentially significant or severe side effects
(2) there is no reliable data on the long-term health effects of taking sex-drive reducing medications – “[t]hese medications are not, in their normal use, used for long periods” – there can be no assurance “that this is going to be safe over five or ten years’ time”
(3) in relatively rare cases, some subjects on the medication are still able to masturbate and have sex
(4) use of sex-drive reducing drugs can, in some cases, have the effect of reinforcing a deviant sexual interest:
…that’s the theory, but I would be remiss if I didn’t add that for some men it has a bit of a paradoxical effect, that I’ve observed both with treatment with SSRIs, which result in kind of genital numbing, and in a few men on Lupron where they find themselves incredibly frustrated by their inability to gain an erection to masturbate, and so, they do what most men do when they’re struggling— when they want sex and they’re struggling to gain an erection, they think about the things that are most arousing to them. So paradoxically I’ve had – it would be four or five men that said, “it actually made me think more about kids, because that’s what really gets me off when I couldn’t get an erection. So that’s – that’s what you’re forcing me to do”, now this is self-report. But it, “It’s making me think about kids, it’s making it worse. I’m not – just thinking about adults isn’t going to do it, and I want to be able to masturbate.”
(5) a subject with deviant sexual interests, with reduced testosterone levels, unable to get an erection, can engage nevertheless in sexual contact offences ( a fact consistent with evidence in other cases: R. v. Ramgadoo, 2012 ONCA 921, at para. 28)
(6) in terms of confidence that antiandrogen medication is effective, self-reporting plays an important role
(7) to the extent that a compliance-monitoring regime is in force between monthly injections, compliance can be defeated “in many ways” including by taking internal testosterone supplements, external use of testosterone gel directly rubbed on the genitalia which is not absorbed systemically, consumption of Viagra or Cialis increasing blood flow to the penis and testicles (“we have evidence of that”) – drugs quickly excreted from the body and undetected in CAMH testing (Dr. Gojer disagreed that these drugs could defeat the physical effects of an antiandrogen drug), etc.
(8) as adult males do not generally like being on antiandrogen medication, they typically discontinue its use at the earliest opportunity, for example, once no external requirement compels its use.
[199] Dr. Woodside testified that in light of the offender’s diagnosis, his historically poor response to treatment, the unlikelihood of more treatment materially impacting on his risk for sexual reoffending, as well as his prior unacceptable supervision history, that the offender will experience significant difficulty complying with community supervision – the expert professed “no confidence” that supervision would be effective in the future for the offender. In light of the offender’s numerous breaches of supervision, including commission of the predicate offences while on probation, a “dismal” compliance performance, there can be little confidence of positive response in the future – with sex-related offending in 2012 and 2014, after a September 2010 Warrant Expiry Date, “[t]hat’s about as bad as it comes when someone reoffends relatively quickly”. As a result, and taking into account the STATIC 99 projections, the risk for sexual reoffending remains a real threat for many, many years into the future.
[200] Dr. Woodside noted that while it is reasonable to assume that the offender would benefit from employment if released into the community, his work history has been “variable”. There exist few community supports. With violent behaviour in the past directed to domestic partners and one of his children, “intimate relationships may be seen as posing an additional risk factor rather than as a stabilizing force”. While the offender’s religious commitment amounts to a significant support, it has not assisted in helping him desist from sexual offending.
[201] Compliance with restrictions and conditions in the community requires a degree of reliance on a parolee’s self-reporting. Parole officers do not attend a parolee’s residence. With antisocial individuals, exhibiting greater duplicity and deception, reliance on their self-reporting alone would be “a fairly serious error”.
[202] In conclusion, Dr. Woodside’s assessment report stated:
In summary, I believe there is significant reason for pessimism, from a psychiatric perspective, regarding this individual’s future manageability within the community, even if strict conditions were put in place and Mr. Williams were to agree to follow through with conditions and treatment recommendations.
[203] Dr. Gojer testified that while the offender’s risk is high, that risk can be managed with a plan. After carceral sex offender treatment, a LTSO of 10 years’ duration until the offender was in his early sixties, with strict conditions, together with antiandrogen medication and with intensive sex offender maintenance treatment in a community setting, would adequately protect society from the risk of sexual reoffending by the offender. Initially, a residential condition would be necessary and weekly reporting to a parole officer. With this approach, the doctor accepted that a degree of compliance and cooperation from the offender would be necessary assisted by the threat of consequence for a breach of a LTSO condition.
[204] Dr. Gojer emphasized, to help counter the offender’s offence cycle, a ban from being able to access pornography and the creation of a stable degree of harmony in his life through the pursuit of healthy recreational activities, maintenance of gainful employment, and reliance on good social supports in the community, for example, the Circles of Support and Accountability.
[205] Dr. Pomichalek administered a number of tests, including psychometric tools, in his interviews with the offender. Although the MMPI (Minnesota Multiphasic Personality Inventory) test results could not be interpreted because the offender presented a defensive profile, other instruments with validity scales led the doctor to conclude that the offender was amenable to treatment, had the ability to engage in treatment, was capable of changing, and understood the need for change. Dr. Pomichalek testified that the offender has benefitted from past treatment in many ways, notably in the area of domestic violence, “except perhaps sexual”.
[206] Under cross-examination, Dr. Pomichalek accepted that if the offender has a pedophilic paraphilia and denies this, as he did with the witness, that is “going to make treatment more challenging possibly but not impossible”. The doctor considered that empathy and motivation were not really important concepts or factors in treating sexual offenders. Significantly, the doctor concluded, with respect to the offender, that, “[h]e has a problem with responding to manageability” (“he has problems with manageability”; “[h]is problem is manageability”).
POSITIONS OF THE PARTIES
The Crown
[207] Crown counsel submitted that imposition of a fit sentence, in all the circumstances, compels the court to designate Mr. Williams as a dangerous offender followed by the imposition of an indeterminate sentence of imprisonment ensuring state control of the offender for the remainder of his life as the only measure adequate to protection of the public from the risk he poses of future serious sexual reoffending. It was submitted that, on the evidentiary record, the prosecution has established the prerequisites beyond a reasonable doubt for such a disposition.
[208] The Crown submitted that the offender meets the statutory requirements of sections 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b) of the Code for designation as a dangerous offender. Each of the crimes of sexual assault causing bodily harm and choking to commit sexual assault is a “serious personal injury offence” as defined in s. 752.
[209] It was argued that the s. 753(1)(a)(i) gateway to designation has been proven considering the offender’s course of serious sexual offending in 1997, 2001-2002 and 2014 demonstrating a failure to restrain his behaviour and a likelihood of causing injury to female victims and the infliction of severe psychological damage. The offender’s indecent exposure crimes in 2012, and the circumstances of the probation breaches in 2013, support the existence of the statutorily required pattern of repetitive behaviour on the offender’s part.
[210] Turning to s. 753(1)(a)(ii), the Crown noted the offender’s use of violence, sexual and non-sexual, during the 1997 home invasion, the offender’s physical abuse of domestic partners, the physical beating of a son, the non-consensual sexual abuse of children in 2002, and the escalating use of violence reflected in the 2014 predicate offences including sexual assault of a stranger, the dangerous use of choking and threats of future harm. The offender’s behaviour has consistently resulted in physical and/or psychological harm due to his failure to restrain his behaviour. On the whole of this record, the Crown maintained that it has proven the statutorily required pattern, persistence and aggression.
[211] Insofar as s. 753(1)(b), it was submitted that sexual victimization of others at the hands of the offender in 1997, 2001-2002 and 2014 clearly demonstrates a failure on his part to control his sexual impulses and a likelihood of causing injury or pain in the future through ongoing failure to control his sexual impulses.
[212] In addressing whether any of these s. 753(1) behaviour gateways to designation on the facts in evidence allow the court to consider designation, it was submitted that evidence necessary for such designation relating to a prospective assessment of risk conclusively points in the direction of the offender being a future threat for serious sexual reoffence given the offending history and the psychiatric evidence of enduring sexual deviation and elevated risk for recidivism. In other words, applying the principles of Boutilier, there exists a high likelihood of harmful recidivism in the future considering the evidence of the intractable nature of the offender’s pattern of grave sexual conduct which is substantially and pathologically intractable and the poor prospects of treatability.
[213] In this regard, the Crown submitted that the future threat determination is demonstrably apparent considering the years of serial sexual offending, the intra-familial violence, the psychiatric opinions of Drs. Woodside and Gojer that the offender is a high risk to sexually reoffend, the life-long presence of a pedophilic paraphilia, the permanence of psychopathic traits in the offender’s personality, the serious challenges to treatment of the offender’s incurable disorders, the historical failure to respond to extensive sex offender treatment, the offender’s current denial and minimization and lack of empathy, the breach of court orders, and, even taking into account the offender’s advancing age, the uncertainty of the effect and efficacy of pharmacological intervention to reduce sex drive.
[214] The prosecution submitted that, having proven the basis for a designation, the court, applying the above-described factors and Part XXIII sentencing principles, should conclude that the Crown has established beyond a reasonable doubt that no lesser measure than indeterminate imprisonment would adequately protect the public against the commission of future serious personal injury offences of a sexual nature. On the whole of the evidence, there is no reasonable expectation that determinate imprisonment followed by a lengthy LTSO would provide the required protection for females in the community. The offender is an extremely poor treatment prospect and in the future will continue to constitute a high risk of sexual reoffence beyond reasonable control under community supervision.
[215] In this regard, in addition to the above-described factors relevant to the question of designation, the Crown characterized the prospects for tolerable supervision in the community, as submitted by the defence, to amount to little more than a hope dependent on a number of uncertain contingencies including the offender’s self-reporting, essentially more of the same in terms of institutional and maintenance sex offender treatment, pharmacological treatment with its many issues (including effect on the offender’s sex drive and desire to reoffend, monitoring of evasive counter-measures, and long-term health implications), and the unrealistic expectations of LTSO supervision, and the complete absence of reasonably credible evidence of any possibility of voluntary restraint by the offender from acting out on his incurable sexual deviations after expiry of a LTSO.
The Defence
[216] The offender’s constitutional challenge to the dangerous offender statutory regime was overtaken by release of the Boutilier decision – a judgment applied to the circumstances of the present case.
[217] On behalf of the offender, Mr. Cawkell submitted that a global disposition for the predicate offences of 8 to 9 years would be a fit sentence. The offender, who has served just over 45 months of presentence custody, would be deserving of enhanced credit for that detention at a rate of 1.5:1 or about 68 months resulting in an effective total sentence remaining in the range of 28 to 40 months’ imprisonment.
[218] It was further submitted that the court ought to exercise its discretion to impose a maximum-length LTSO upon the 45-year-old offender. With such a community supervision order following upon incarceration, the offender would be subject to state control, and continuing treatment and therapy, until approximately age 58.
[219] Prior to release of the Boutilier decision, the defence had conceded that the offender ought to be designated as a dangerous offender solely on the basis of s. 753(1)(b) of the Code relating to his status as a serious repeat sexual offender. At that time, the defence argued for a determinate sentence and a 10-year LTSO following upon the designation.
[220] With the guidance of the Boutilier judgment, the defence retracted its concession relating to a dangerous offender designation. In emphasizing the extraordinary status of a dangerous offender designation, Mr. Cawkell submitted that the Crown’s reliance upon ss. 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b) of the Code as gateways to designation ought to be rejected for a number of reasons.
[221] As to s. 753(1)(a)(i), it was submitted that the facts do not support the existence of a “pattern” of repetitive behaviour on the offender’s part. It was argued that the offender’s criminal behaviours do not include enough of the same unrestrained elements of dangerous conduct to make it likely that he will reoffend similarly in the future. The commission of sexual crimes in 1997 and 2001-2002, and again in 2014, reflects a significant temporal gap prior to the predicate offences, and overall the absence of a pattern, given that the sexual offending reflects a mix of breach-of-trust and stranger attacks, child and adult victimization, and no overt violence inflicted prior to the offences currently before the court.
[222] Turning to s. 753(1)(a)(ii), Mr. Cawkell submitted that not only is there no evidence of a “pattern” but also no “persistent” course of “aggressive” behaviour on the part of the offender has been established beyond a reasonable doubt by the prosecution. Again, it was said that the Crown has failed to prove a “pattern” for the reasons advanced respecting s. 753(1)(a)(i) and, given the gaps in offending in particular, it cannot be said that the offender’s offending behaviour has had the quality of persistence in the sense of enduring or constantly repeated. It was further submitted that the prerequisite of a proven showing of aggression is not made out – while sexual crimes are inherently violent, there is not a constant course of the use of violence in commission of the sexual crimes.
[223] The revised defence position respecting the inapplicability of s. 753(1)(b) appears to again depend on the offender not posing a future threat as described in Boutilier.
[224] It was submitted that, in any event, the Crown failed to establish in all the circumstances, that a designation is necessary having regard to the offender not constituting a future threat based upon prospective assessment of his risk or dangerousness. It is said that the offender not only does not pose a high likelihood of harmful recidivism, but also his violent conduct is not intractable, taking into account the relevant evidence. To quote the offender’s supplementary factum, it is submitted that the defence “position (based upon Dr. Gojer’s Report) is that his pattern of behaviour is not and the Crown has not proven beyond a reasonable doubt that he represents a tremendous future risk to the safety of others if he is under pharmacological treatment”. Relying on s. 757(a) of the Code insofar as the relevance of character and repute factoring into analysis of future risk, it was submitted that:
In this case, there is ample evidence of good character and repute while in jail and afterwards under parole supervision – which is what is being proposed. Furthermore, the [offender] has demonstrable repute and support in the community through the Church he attends and from his brother. Finally, the fact that the [offender] has pled guilty to all of his crimes, even crimes that the Police could not prove against him, while expressing remorse and a willingness to change should also be considered evidence of his good intentions and character. An LTO is warranted.
[225] The factum further submitted that:
As stated in Boutilier at para. 45: “offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that the violent pattern is intractable.” This is precisely the case before this court and Mr. Williams should be placed on a LTO with conditions that he take anti-androgen treatment.
[226] Recognizing that evidence in a dangerous offender proceeding may have relevance across a number of issues including the prospective risk assessment at the designation stage or, should a designation be made, the decision as to determinate versus indeterminate detention, or the length of a determinate sentence, or the appropriateness of a LTSO and its duration, Mr. Cawkell highlighted aspects of the evidentiary record including the offender’s pleas of guilt, his apology, the gap in the offender’s criminal behaviour prior to commission of the predicate offences, the offender’s advancing age with biologically expected reduction in sexual interest or inclination to violence, the offender’s amenability and motivation and capacity for treatment, the opportunity for “intensive” sex offender treatment prior to release from federal custody, the offender’s positive response to the CSC High Intensity Family Violence Program, the value of pharmacological intervention not before made available to the offender to reduce sex drive, the offender’s good performance while on parole, etc.
[227] It was submitted that, while on parole, the offender “did very well in therapy”. There was subsequently an abject failure by probation services, when the offender was apparently under stress in the early stage of his historical offence cycle, to counter relapse by ensuring that treatment with Dr. Heasman continued and other support was offered.
[228] Should the court designate the offender as a dangerous offender, it was submitted that the Crown has failed to establish, beyond a reasonable doubt, that indeterminate incarceration is necessary to protect the public from serious reoffending by the offender in light of the evidence supporting imposition of the “lesser measure” of determinate imprisonment followed by a 10-year LTSO with its coercive character of consequences for breach of conditions. It was argued that in the personal circumstances of the offender, and the future application of sex offender treatment and pharmacological castration, that the prosecution has fallen short in its proof of there not being a reasonable expectation of such a lesser measure adequately protecting the community.
[229] It was submitted that the evidence adduced in this hearing “overwhelmingly supports a reasonable expectation of control in the community” without resort to indeterminate imprisonment.
[230] Put differently, counsel submitted that if the risk the offender poses is not for life then an indeterminate sentence is not appropriate.
[231] In terms of recommended conditions for a LTSO, Mr. Cawkell noted various conditions including for residency, submission to an antiandrogen medicine regime, ban on internet access, reporting of any intimate relationship, and restrictions upon being in the presence of young children.
ANALYSIS
The Legislation
[232] Section 752 in Part XXIV of the Criminal Code defines a “serious personal injury offence” 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).
[233] A dangerous offender hearing is a two-stage proceeding, with designation and penalty phases. Section 753(1) of the Code describes the designation criteria:
Application for finding that an offender is a dangerous offender
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour…
(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.
[234] Should the sentencing court make a dangerous offender designation, these provisions govern the sentencing phase:
(4) SENTENCE FOR DANGEROUS OFFENDER - If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) SENTENCE OF INDETERMINATE DETENTION - The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
(5) IF OFFENDER NOT FOUND TO BE DANGEROUS OFFENDER - If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
[235] When considering its discretion to impose a LTSO, the court considers these criteria:
753.1 (1) APPLICATION FOR FINDING THAT AN OFFENDER IS A LONG-TERM OFFENDER - 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) SUBSTANTIAL RISK - 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), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), 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 he or she has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
(3) SENTENCE FOR LONG-TERM OFFENDER - If the court finds an offender to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and
(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.
Discussion
Introduction
[236] Part XXIV of the Criminal Code governs an exceptional sentencing regime.
[237] In R. v. Lyons (1987), 1987 25 (SCC), 37 C.C.C. (3d) 1 (S.C.C.), at p. 29, the court stated that the dangerous offender sentencing provisions “carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative detention” – a carefully “tailored set of criteria…to segregate a group of highly dangerous criminals”.
[238] The overall and dominating objective of Part XXIV proceedings is protection of the public: Boutilier, at para. 56; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 27; R. v. B.(D.V.), 2010 ONCA 291, at para. 80 (leave to appeal refused [2011] S.C.C.A. No. 207); R. v. Severight, 2014 ABCA 25, at para. 4 (leave to appeal refused [2014] S.C.C.A. No. 184); and R. v. Little (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20 (Ont. C.A.), at para. 70 (leave to appeal refused [2008] S.C.C.A. No. 39).
The Boutilier Paradigm
[239] As said, the dangerous offender scheme is designed as a two-stage process.
[240] As set out above, s. 753(1) defines four statutory gateways to the prosecution seeking a designation of an offender as a dangerous offender. Three are relevant in this case. The Crown must establish beyond reasonable doubt the prerequisites of at least one of these gateways to designation: Boutilier, at para. 18; R. v. Zehr, [1997] O.J. No. 2054 (C.A.), at para. 2.
[241] Assuming designation as a dangerous offender, ss. 753(4)(4.1) principally govern the penalty stage.
[242] Turning first to the designation phase, ss. 753(1)(a)(i) and (ii) describe categories of dangerousness resulting from violent behaviour. While section 753(1)(b) specifically contemplates dangerousness ensuing from sexual behaviour, that behaviour may also fall to be considered as violent behaviour within ss. 753(1)(a)(i) and (ii).
[243] The following criteria govern the designation determination which is concerned with assessing the future threat posed by an offender:
(1) has the offender been convicted of a “serious personal injury offence” (SPIO)? – an objective element of the designation
(2) the predicate offence must be part of a broader pattern of violence (“a pattern of repetitive behaviour …” (753(1)(a)(i)); “a pattern of persistent aggressive behaviour …” (753(1)(a)(ii)); “conduct in any sexual matter including …” (753(1)(b))
(3) in assessing the offender’s future threat, a prospective assessment of dangerousness is required having regard to evidence showing a high likelihood of harmful recidivism and that his conduct is intractable in the sense of behaviour the offender is unable to surmount – will the offender continue to be a real and present danger to life or limb?
(4) consideration of the evidence of a past violent or serious sexual offending history is relevant to a finding of dangerousness in the sense of being future-oriented – it must demonstrate a likelihood of harmful recidivism in the future
(5) similarly relevant to the question of future threat, speaking to the likelihood of harmful recidivism and intractability are (a) evidence of character and repute, and (b) expert assessment evidence on prospective aspects of dangerousness including psychiatric diagnoses, risk factors, probabilities of recidivism and future prospects for treatment
(6) on the latter point, prospective evidence of treatability, at the designation stage this factor informs the decision on the threat posed by an offender – an offender stands not to be designated if the relevant evidence shows that his treatment prospects are “so compelling” that it can be safely concluded beyond a reasonable doubt that he does not pose a high likelihood of harmful recidivism or violent behaviour which is intractable.
[244] If the sentencing court is satisfied that the designation criteria of at least one of the designation gateways have been proven, having been satisfied that the offender constitutes a future threat to public safety in light of all the relevant evidence, the court shall designate the offender as a dangerous offender. The penalty phase then concerns itself with imposing the appropriate sentence to manage the established threat – can the risk arising from the offender’s behaviour be adequately managed outside of the exceptional option of an indeterminate sentence?
[245] Insofar as the penalty phase, because dangerous offender proceedings under Part XXIV of the Code form part of the sentencing process, “their interpretation must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718.2” of the Code: Boutilier, at para. 53; R. v. Johnson (2004), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.), at paras. 23, 28; R. v. Osborne, 2014 MBCA 73, at para. 91. The principle of proportionality continues to govern the sentencing or penalty phase while recognizing that the preventative sanctions of a LTSO or indeterminate imprisonment, under contemplation in circumstances of established future dangerousness, afford enhanced emphasis to protection of the public. At paras. 60 to 63, 65, 68-69, 75-76, of the Boutilier decision, the court stated:
60 Section 753(4) and (4.1) should therefore be read as a codification of Johnson: the first subsection lists the alternatives available to a sentencing judge, while the second codifies the exercise of the sentencing judge's discretion required by Johnson. In order to properly exercise his or her discretion under s. 753(4), the sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme.
61 Against this backdrop, it would strain credulity to suggest that the principles enumerated in ss. 718 to 718.2 are irrelevant to the exercise of the sentencing judge's newly codified discretion in s. 753(4) and (4.1) when they were relevant even under the former scheme, which imposed automatic indeterminate detention for every dangerous offender. The 2008 amendments replaced mandatory indeterminate detention with a codification of the principle that a sentencing judge must impose a sentence that is tailored to the specific offender and consistent with the principles of sentencing. When considered in its historical context, the current s. 753(4.1) confers a discretion to apply general sentencing principles more explicitly than the former scheme did. It does so for the benefit of the offender, who cannot complain of a discretion that can only operate to his or her benefit: see Lyons, at pp. 348-49.
62 Further, nothing in the wording of s. 753(4.1) removes the obligation incumbent on a sentencing judge to consider all sentencing principles in order to choose a sentence that is fit for a specific offender.
63 For all these reasons, an offender's moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are each part of the sentencing process under the dangerous offender scheme. Each of these considerations is relevant to deciding whether or not a lesser sentence would sufficiently protect the public…
65 Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the evidence adduced during the sentencing hearing. This Court in Johnson stated that the "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": para. 44. Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime's general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism.
68 Under s. 753(4.1), the sentencing judge is under the obligation to conduct a "thorough inquiry" into the possibility of control in the community: Johnson, at para. 50. The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender…
69 In other words, s. 753(4.1) provides guidance on how a sentencing judge can properly exercise his or her discretion in accordance with the applicable objectives and principles of sentencing. As explained above, it is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing their discretion. Once the sentencing judge has exhausted the least coercive sentencing options to address the question of risk based on the evidence, indeterminate detention in a penitentiary is the last option.
75 Undoubtedly, the dangerous offender designation criteria are more onerous than the long-term offender criteria. In particular, under s. 753(1), the sentencing judge must be satisfied that "the offender constitutes a threat to the life, safety or physical or mental well-being of other persons", whereas under s. 753.1, the sentencing judge must merely be satisfied that "there is a substantial risk that the offender will reoffend". As explained above, when read properly, s. 753(1) limits the availability of an indeterminate detention under s. 753(4) and (4.1) to a narrow group of offenders that are dangerous per se. It therefore cannot be said that both regimes target the same offenders.
76 Furthermore, as I have already concluded, s. 753(4.1) does not create a presumption that indeterminate detention is the appropriate sentence -- the sentencing judge is under the obligation to conduct a thorough inquiry that considers all the evidence presented during the hearing in order to decide the fittest sentence for the offender. Indeed, under s. 753(4), a long-term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence.
The Designation Gateways
[246] As said, a common feature of the designation gateways is that the offender has been convicted of a SPIO.
[247] The offender has been convicted of sexual assault causing bodily harm (s. 272), a crime punishable by a maximum of 14 years’ imprisonment and deemed to be a SPIO by virtue of the s. 752(b) definition of SPIO. The offence on the facts here also meets the criteria of the s. 752(a) definition. The offender’s conviction for choking (s. 246(a)), a crime punishable by a maximum of life imprisonment, in the circumstances of this case, readily supports the conclusion that the choking offence was also a SPIO within the s. 752(a) definition.
[248] As the types of considerations and evidence frequently necessary to prove the foundational criteria for the respective designation gateways are well canvassed in the books of authorities filed in this hearing, only brief mention is warranted.
[249] Sections 752(1)(a)(i) and (ii) speak of a “pattern” of behaviour on an offender’s part – these provisions “refer to patterns of behaviour as opposed to offences”: R. v. McCallum, 2016 SKCA 96, at para. 46 (leave to appeal refused [2016] S.C.C.A. No. 406). Psychiatric evidence “can be considered in the pattern analysis, along with extrinsic evidence of surrounding circumstances and criminal behaviour”: R. v. Shea, 2017 NSCA 43, at para. 80 (leave to appeal refused [2017] S.C.C.A. No. 351). That said, it is for the sentencing court, not psychiatrists or psychologists, to determine the pattern: R. v. Walsh, 2017 BCCA 195, at para. 34.
[250] In R. v. Brissard, 2017 ONCA 891, at paras. 56-57, the court stated:
56 The trial judge accurately summarized the parties' positions and the jurisprudence they raised with respect to the pattern of behaviour element.
57 The pattern of repetitive behaviour relevant to s. 753(1)(a)(i) is a pattern that contains "enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future ... however, the offences need not be the same in every detail; that would unduly restrain the application of the section": R. v. Hogg, 2011 ONCA 840, at para. 40; and R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56. Differences in the details of the offences will not be relevant if the index and past offences represent "a pattern of repetitive behaviour by the offender ... 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": Criminal Code, s. 753(1)(a)(i). As this court confirmed in Szostak, at para. 63: "'Similarity...can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims'" …
[251] The necessary evidence of pattern need not reach a similar fact threshold of similarity although circumstances of only two instances of relevant behaviour, while capable of amounting to a “pattern of repetitive behaviour” (752(1)(a)(i)), will generally require a greater degree of sameness: R. v. Szostak, 2014 ONCA 15, at paras. 56-57 (leave to appeal refused [2014] S.C.C.A. No. 300). In R. v. Hogg, 2011 ONCA 840, at para. 37, the court approved the observation in R. v. Dow, 1999 BCCA 177, at para. 26, noting that there may exist differences in behavioural transactions, even distinctive ones, so long as the differences leave the key significant relevant elements of the offender’s pattern in place.
[252] As to the element of persistence described in s. 752(1)(a)(ii), this connotes behaviour which is enduring, continuous, obstinately persevering, interminable or sustained. Insofar as “indifference”, this element looks to notions of disregard, lack of sympathy or empathy, callousness and coldness, lack of concern or sensitivity, etc.
[253] To the extent that s. 753(1)(b) requires proof of “a failure to control his … sexual impulses”, proof of this element will generally look to evidence of inability to manage or restrain behaviour or to refrain or hold sexual conduct in check.
What the Evidence Establishes
[254] Not surprisingly, most of the evidence in this Part XXIV hearing was potentially relevant to both the designation phase and to the penalty phase. As observed in Boutilier, at para. 44, it would be somewhat artificial to attempt to distinguish evidence that should be considered to designate an offender as dangerous from evidence that should be considered to determine the appropriate and fit sentence – “[a]ll of the evidence adduced during a dangerous offender hearing must be considered at both stages of the sentencing judge’s analysis” in making different findings related to different legal criteria. Accordingly, it makes sense to first cumulatively review the evidence accepted by the court and inferences drawn before applying that foundational material to the legal determinations required for designation and penalty.
[255] The predicate offences were gravely serious and terrifying for the victim. Alone in the dark on her way home, R.S. was stalked, confined and sexually attacked for a lengthy period of time. There was a huge differential in size and strength between the offender and the victim. He believed her to be “much younger” than her actual age of 24. Despite his very real physical advantage over the victim, she was choked by him on more than one occasion, losing consciousness at one point. The victim was stripped and sexually assaulted including fondling, digital penetration vaginally and anally, and attempted penal penetration of her anus. The offender used R.S. as a sort of live experimental model for his urophilia and coprophilia paraphilia – interests accessed on the internet. There were threats to the victim to secure compliance (to break her neck) and future silence (this was “round one”).
[256] The offender, a previously convicted sex offender, living on his own and subject to two probation orders, had watched pornography earlier in the day of the sexual assault and masturbated in his vehicle immediately before ambushing the victim.
[257] The predicate offences are the offender’s most violent sexual offending to date and consistent with his coercive sexual preference paraphilia. The victim suffered physical, emotional and enduring psychological injury.
[258] The offender has a lengthy criminal record. Sex-related offending has occurred over about a 17 ½ year period (1997, 2001, 2002, 2012, 2014). Prior to commission of the predicate offences, during that time period, the offender had been subject to state control for over 10 years – incarcerated on various matters for a total of 6 to 7 years, under parole supervision for about 32 months, and subject to probation orders for about 17 months. This history of engagement with the criminal justice system failed to deter the offender from victimizing yet another female person.
[259] R.S. is one of five (5) women currently aged 25 to 29 who have one thing in common – within a 17-year period, they have all been sexually assaulted by the offender. C.S., as a 5-year-old, was sexually assaulted in a 1997 home invasion. K.L. was sexually assaulted at age 12 in 2001 by the offender. When she was aged 8, T.W., the offender’s biological daughter, was sexually assaulted by him in 2001-2002. The offender also sexually assaulted his step-daughter, C.R., when she was aged 5-6 years in 2002. And lastly, R.S. was sexually assaulted in 2014.
[260] The offender received a significant course of sex offender treatment/counselling between June 2005 and April 2014. This included the CSC Moderate Intensity Sex Offender Program in 2006, sex offender relapse therapy from Dr. Vitelli while on parole in 2008-2010, and sex offender maintenance programming with Dr. Heasman at CAMH in 2013-2014. The offender has demonstrated variable levels of commitment. He missed 25% of group sessions and failed to attend 50% of scheduled individual therapy sessions with Dr. Heasman. While the offender participated in therapy, a theme identified by treatment professionals, concurred in by Drs. Woodside and Gojer, is that the offender was superficially learning but not internalizing the relevant concepts and teachings. Once again the offender maintains, now with Drs. Woodside and Gojer and Pomichalek, motivation for change – as noted elsewhere, this is an instance of an offender who “made similar assertions in the past and failed to follow through”: R v. McConville, 2017 ONCA 829, at para 57.
[261] In 2013, Dr. Rootenberg concluded that the offender had a personality disorder. In my view, there are no real differences of significance between Drs. Woodside and Gojer in terms of their respective diagnoses of the offender.
[262] Dr. Woodside concluded in his clinical judgment, assisted by background material, interviews with the offender, and administration of testing instruments, that the offender has an Antisocial Personality Disorder with significant psychopathic personality traits. Dr. Gojer would technically classify the offender as having a personality disorder with antisocial traits – there are “prominent” psychopathic traits.
[263] The evidence supports the view that the offender’s disorder is chronic with overt manifestations of the disorder becoming less evident with aging.
[264] The psychiatric witnesses were in agreement that the offender has a pedophilic paraphilia with an enduring primary sexual interest in prepubescent and pubescent female children. Pedophilia is a life-long disorder. Over time, the offender has evidenced minimization/denial respecting his disorder – admitting in 2002 to the CSC MAU a sexual interest in children, and through counsel to a sentencing court in 2012, denial of such interests in 2013 with Dr. Rootenberg, initially denying sexual interest in children with Drs. Woodside and Gojer, and denying the interest with Dr. Pomichalek.
[265] The offender’s partialism paraphilia was diagnosed by the psychiatrists in this proceeding. This has been a durable feature throughout the offender’s sexual crimes – an obsessive sexual interest in female buttocks.
[266] Again there was significant agreement between Drs. Woodside and Gojer respecting evidence of the offender having a non-consenting, coercive sexual preference (rape preference).
[267] Drs. Woodside and Gojer have testified before me in a number of cases. Our jurisprudence reflects their long-standing participation in assisting the courts in dangerous offender applications. Both are impressive witnesses endeavouring not to overstate their positions and sensitive to the reality that they are providing opinions to be weighed along with the entirety of the relevant evidence together with the application of common sense and the experience of the court. Dr. Pomichalek was a much less helpful witness both in presentation and content of his testimony. He does not have the diagnostic or treatment of sex offenders experience of the other witnesses, he struggled at times in cross-examination, and his views, not accepted by the court, respecting the offender’s pedophilic disorder, psychopathic traits and coercive sexual preference were at odds with Drs. Woodside and Gojer.
[268] There are factors in the present case which, on their face, appear to have a favourable or mitigating quality respecting the offender including relevance to future threat and management subjects, including the following:
(1) the pleas of guilt
(2) the apology to the victim and her family
(3) agreement to a s. 752.1 assessment remand
(4) positive response to the High Intensity Family Violence Program
(5) no sexual reoffending against children for over 12 years (2002-2014)
(6) predicate offences committed while the offender was in his historical offence cycle with probation services agreeing to the offender discontinuing sex offender treatment with Dr. Heasman
(7) amenability to further sex offender treatment and capacity for change.
[269] With more discriminating consideration, these factors are deserving of minimal weight having regard to all of the circumstances:
(1) as to the guilty pleas, the offender was inescapably caught by DNA trace evidence, the complainant was required to testify at a preliminary inquiry, and the offender’s guilty pleas in the past have been followed by further offending
(2) in the face of a dangerous offender proceeding, the genuineness of the unsworn apology by an offender who has victim-empathy issues, and the sincerity of asserted contrition, are difficult to measure
(3) the evidence supporting an assessment remand was overwhelming
(4) while there is no evidence of domestic violence on the offender’s part after completing the family violence treatment/counselling in the penitentiary, the offender was under a NPB residency condition for almost the entirety of his 2008-2010 parole, leaving only about a 3–year period between September 11, 2010 (Warrant Expiry Date) and June 20, 2014 (arrest for predicate offences) during which the offender was again in jail for some months and cohabited for only some of that time with M.C.
(5) with regard to sexual reoffence against children, the offender was out of custody from January 10, 2008 (Statutory Release Date) to June 20, 2014 (arrest for predicate offences) – a period of less than 6 years (taking into account parole suspension return to custody and a further period of custody in 2012) – as well, in 2012, after masturbating to pornography on his cellphone, he indecently exposed himself to 2 young girls, and, in 2014 was accessing internet sites dealing with child pornography
(6) it is difficult to fault probation services for its concurrence in the offender not continuing treatment in the summer of 2014 when the offender discontinued treatment with Dr. Heasman on his own as of April 7, apparently not informing his probation officer immediately that he had done so or that he was accessing coercive-theme and child pornography on the internet or as early as March 2014 videotaping a woman’s buttocks on a transit platform, and while knowing that he could recontact the doctor at any time he failed to do so – it is simply not possible to say that ongoing attendance with Dr. Heasman would have had any impact on the occurrence of the predicate offences
(7) once again, an announced preparedness to reengage in sex offender treatment is a reasonably expected response in a proceeding of this type but, even accepting its legitimacy, I accept Dr. Woodside’s evidence that there exists little correlation to risk of recidivism.
[270] It should be noted that the offender does not have a notable history of correctional institution infractions. Although he has had resort to church and religion for a number of years, the predicate crimes were committed during this time period. The offender’s other community supports are minimal as he is divorced and there is no evidence of the offender’s brother playing a significant role in his life.
[271] A snapshot of about a 4-month period preceding the offender’s arrest includes this information:
March 4, 2014
appointment with Probation Officer (P.O.)
March 6, 2014
cellphone video made focusing on buttocks of female on transit platform (the “buttocks video”)
offender over 1 hour late for appointment with Dr. Heasman
March 13, 2014
appointment with Dr. Heasman not kept
March 17, 2014
individual therapy session with Dr. Heasman
March 27, 2014
probation appointment – P.O. noting that “no acute factors to be immediately addressed”
over 1 hour late for appointment with Dr. Heasman
March 31, 2014
individual therapy session with Dr. Heasman
April 7, 2014
last appointment attended with Dr. Heasman
April 14, 2014
cancelled appointment with Dr. Heasman
April 21, 2014
cancelled appointment with Dr. Heasman
April 25, 2014
meets P.O.; P.O. notes: “Discussed how he is making sure he is safe not only with his actions but perception as well … No issues at this time”
apparently no disclosure to P.O. of missed appointments with Dr. Heasman
April 26, 2014
buttocks video posted to offender’s computer
April 28, 2014
missed appointment with Dr. Heasman
May 1, 2014
appointment with P.O.
May 5, 2014
missed appointment with Dr. Heasman
May 7, 2014
internet search activity on offender’s computer re “young feet”, teen nudism, bondage
May 12, 2014
Dr. Heasman alerts P.O. to offender’s missed appointments and offers participation for offender in weekly follow-up groups
May 15, 2014
P.O. meets with offender; offender says his CAMH attendance is voluntary and he should not be forced to keep appointments; offender will take break from CAMH for summer
May 19 to June 9, 2014
internet searches on offender’s computer including re brutal rape photos, teen anal, nude school girls, anal rape, round bum, girl molested, girl nudity, teen slut, etc.
June 2, 2014
misses appointment with P.O.
June 9, 2014
meeting with P.O. – no disclosure by offender that accessing rape and child porn internet sites
June 10 to 15, 2014
internet searches on offender’s computer including leggings + rape, teen feet, teen + porn
June 13, 2014
predicate offences committed
June 16, 2014
meeting with P.O. – no disclosure re commission of predicate offences/ pornography use
June 16 to 19, 2014
internet searches on offender’s computer including porn/young-teen-rape
June 20, 2014
further computer internet searches including teen + nude, young-girl-pooping
offender arrested
[272] During this time period, the offender was dealing with CAS issues and a separation from M.C. These were stressful times and necessitated the offender self-reporting any slippage in his ability to control and report triggers for his offending cycle. After years and years of sex offender treatment, including relapse and control strategies, he ceased treatment with Dr. Heasman and did not relate to her or to his probation officer his return to internet pornography including pedophilic and coercive sex subject matter. As observed about the offender in R v. Nicholas, 2017 ONCA 646, at para. 87, “[neither] custodial sentences nor court orders have had any deterrent or rehabilitative effect”.
[273] The nature of the offender’s fixed disorders, exhibiting indifference to the consequences of his behaviour upon others, and domination and control to satisfy sexual impulses and urges, led Dr. Woodside to conclude that the offender is presently at high risk to reoffend sexually. Dr. Gojer concluded that the offender was “a high risk of reoffending in a sexual manner”. The offender’s offending conduct, in light of his enduring sexual deviance, has shown itself to be pathologically intractable. On the whole of the evidence, the court accepts that the opinions of high risk for reoffence are fully supported, in particular given the nature of the offender’s diagnosed disorders, his history of sexual offending, ineffective treatment interventions, and the bleak prospects for treatment of the relevant life-long disorders impacting upon recidivism. No realistically supportable inference is available of tolerable controlled risk with intensive sex-offender treatment for this offender within a reasonably predictable time period. The record is clearly predictive of future serious sexual offending – in other words, a substantial or high likelihood of harmful recidivism.
[274] In light of these factors, it cannot reasonably be said that the offender’s treatment prospects are so compelling that he does not pose a high likelihood of harmful recidivism with sexually violent behaviour which is intractable.
[275] As said, in a prospective assessment of dangerousness, treatability must be considered. Dr. Woodside’s opinion, accepted by the court, based upon his experience, structured professional judgment, and specific reference to relevant reputable studies, is that there is no good and reliable evidence of treatments clearly assisting in reducing recidivism for those with life-long, fixed disorders such as Antisocial Personality Disorder or a pedophilic paraphilia. While Dr. Gojer was somewhat more optimistic, in terms of the possible benefit of intensive sex offender treatment including cognitive psychotherapy, he too acknowledged that sexual deviations are “very difficult to treat” and that the offender’s sexual deviations are the core and central aspect of what makes him “a dangerous person”.
[276] In R. v. D.B., 2015 ONSC 5900, at paras. 202 to 204, I observed that:
[202] In the McCallum decision, at para. 47, the court identified elements which must be present to achieve the objective of public protection:
(1) there must be evidence of treatability that is more than an expression of hope
(2) the evidence must indicate that the offender can be treated within a definite period of time
(3) the evidence of treatability must be specific to the offender.
[203] On the first point, an evidence-based conclusion is necessary: R. v. Poutsoungas (1989), 49 C.C.C. (3d) 338 (Ont. C.A.), at p. 391 (leave to appeal refused [1992] S.C.C.A. No. 49) (“expression of hope” not a proper basis for disposition); R. v. Mason (2001), 2001 6115 (ON CA), 156 C.C.C. (3d) 97 (Ont. C.A.), at para. 29 (requirement for a conclusion based on more than speculation); Solano, at para. 15 (“A mere hope that treatment will be successful, or simple optimism of eventual control of the offender’s risk in the community is insufficient to ground a determinate sentence”); Bennett, at paras. 8, 12 (“no more than an indication of potential”); D.J.S., at para. 37 (mere expression of hope insufficient). On the second point, the court requires evidence showing a fixed period of time in which rehabilitation and risk-acceptable status can be achieved (Solano, at para. 15; Bennett, at para. 12; Little, at paras. 8, 37; R. v. Higginbottom (2001), 2001 3989 (ON CA), 150 O.A.C. 79 (C.A.), at para. 26 (leave to appeal dismissed administratively July 8/03 (S.C.C. Docket #29455)) which period must fall within the prescribed duration of the LTSO imposed upon the offender: R. v. Madden, 2014 ONCA 135, at para. 13; M.L., at para. 32; B.(D.V.), at paras. 37-57. Resort to serial protective recognizances under s. 810.2 of the Code after the expiry of a LTSO cannot be used as “a stop-gap” to protect the public (Madden, at para. 17) – that mechanism is simply “a safety valve that Parliament put into place to address those cases where the optimistic outcome envisioned by s. 753.1(1)(c) turns out to be unwarranted”: D.V.B., at para. 56.
[204] A LTSO focuses on “imposing special measures on the offender to address an elevated risk of future offending”: Sipos, at para. 19. To this end, beyond the compulsory conditions of release included in a LTSO mandated by s. 134.1(1) of the CCRA (including “obey the law and keep the peace”: s. 161(1)(c) of the Corrections and Conditional Release Regulations, SOR/92-620), the Parole Board is empowered to impose tailored and strict supervisory and monitoring controls as terms of a LTSO with a view to rehabilitative reintegration into the community (CCRA, s. 134.1(2)). Such terms may include residency restrictions, urinalysis, limitations surrounding any intimate relationship, compulsory treatment/counselling, etc.
[277] Dr. Woodside concluded, and the court accepts, that there exists significant pessimism from a psychiatric perspective that the offender’s risk of sexual reoffence would be manageable in the community even with strict conditions and the offender’s agreement to follow through with conditions and treatment recommendations. In reaching this view, the doctor took into account the offender’s aging process and the prospect of antiandrogen pharmacological intervention – two factors upon which Dr. Gojer heavily relied in advancing his opinion of potential manageability of the offender’s risk should he be released into the community.
[278] In terms of aging, a theory of “burnout”, the experts agree that there exists a biological expectation of a reduction or abatement in an offender’s sex drive as he grows older. Dr. Gojer spoke of “the hypothetical age of sixty”. On the evidence, the timing of its natural reduction or abatement for this offender to a level where his sexual fantasies, urges and impulses no longer threaten females in the community cannot be predicted with any confident precision – whether age 60, 65 or 70. This reality is of some importance as the additional sex offender treatment advocated by the defence under compulsion of sentence until the offender is about 58 years of age bears little relation to realistic confidence in risk reduction and management tied to the age of this specific offender. It is speculative and a mere expression of hope to assert that the offender could be treated within a definite period of time.
[279] The Crown and the offender differ as to the significance of antiandrogen medication as a factor contributing to a reasonable possibility of eventual control of risk in the community. Dr. Gojer strongly supports pharmacological intervention based upon his belief in its benefits, the offender’s willingness to undertake chemical castration, and its contributive role, along with sex offender treatment and aging, and the coercive character of a LTSO, to control and community management.
[280] In my view, the prospect of an antiandrogen intervention provides little comfort to risk management on the evidence before the court. The intervention is a time-limited control mechanism as opposed to a cure or treatment. Put differently, the intervention does not amount to the offender being “meaningfully treated within a definite period of time”, i.e. within the currency of a LTSO: R. v. Hess, 2017 ONCA 220, at para. 36; R. v. Solano, 2014 ONCA 185, at para. 15 (controlled at an acceptable level “within a determinate period of time”); R. v. Higginbottom (2001), 2001 3989 (ON CA), 156 C.C.C. (3d) 178, at para. 26 (appln for leave to appeal refused [2002] S.C.C.A. No. 534). As observed in D.V.B., at para. 27, “[t]he likelihood of the [offender] taking his medication as required” can be highly questionable as an offender “would have to remain motivated to obtain treatment for his entire life”. There is no extrinsic compulsion on the conclusion of a LTSO for an offender to continue with the medication. In terms of voluntary ongoing compliance, Drs. Woodside and Gojer both noted the likelihood of discontinuance given cost of the drug and the male inclination to avoid reduction of sex drive in particular where a drug implicates side effects.
[281] It is true that Dr. Woodside, in his practice, uses antiandrogen as a measure to assist in control of patients’ sexually deviant disorder, and believes that the intervention assists in reducing recidivism. But context is important here. Both psychiatrists agree that there is no reliable research respecting the use of antiandrogen medications on offenders in the community. The most recent study negatively reported on the use of such drugs in the treatment of sex offenders. The use of the drugs is “off-label”, not approved by Health Canada, the relevant drugs are not normally for long-term use, their safety over years of administration is unknown, there are side effects of varying severity, the level of reduction of sex drive is individually variable, and offenders are able to defeat compliance-monitoring. The NPB does not directly compel the taking of specific medication.
[282] In R. v. Byers, 2017 ONCA 639, at paras. 37 to 39, the court stated:
37 The appellant also contends that the trial judge demonstrated unreasonable scepticism about the prospects of treatment and supervision in this case. Particularly having regard to the evidence concerning decreasing risk with advancing age and available community supervision, the trial judge's conclusion that there was no reasonable possibility of eventual control in the community was unreasonable.
38 We do not accept these submissions. The trial judge gave several reasons for concluding there was uncertainty about the appellant's willingness to take sex drive reducing medication, about the impact such medication could have in reducing the appellant's risk to the community and about enforcement challenges that could arise in relation to anti-androgen medications. These reasons included the fact that there was no evidence of whether the appellant would be able, medically, to take the drugs, and if he is, evidence of whether the drugs might have potential harmful side-effects to the appellant which could affect his ability to take drugs of the necessary potency. There is still no such evidence before this court.
39 As for the prospects of treatment and adequate supervision, the trial judge found that the appellant suffers from life-long disorders (including pedophilia, sexual sadism and substance dependence disorder) for which there is no cure and that the evidence "directed to a possibility that [the appellant] could be treated sufficiently to reduce his risk to an acceptable level amounts to no more than an expression of hope". Moreover, the trial judge fully considered the evidence relating to available supervision in the community and the effects of aging.
See also R v. Sawyer, 2015 ONCA 602, at paras. 15, 24, 40-50; R. v. Madden, 2014 ONCA 135, at paras. 8-10; R. v. Caldwell, 2010 ONCA 240, at para. 12; D.V.B, at para. 27; R. v. Robinson, 2011 ABCA 320, at paras. 44, 46.
The Designation Issue
[283] I am satisfied on all of the evidence, as discussed above, that the Crown has established beyond a reasonable doubt the criteria for designation of the offender as a dangerous offender pursuant to ss. 753(1)(a)(i) and (ii) and 753(1)(b).
[284] Convicted of the SPIOs, the offender’s conduct over time amounts to a repetitive pattern of behaviour demonstrating a failure to restrain his behaviour and a substantial likelihood of causing injury to female persons in the future including the infliction of severe psychological damage on such persons, through failure in the future to restrain his deviant sexual behaviour.
[285] In making this finding pursuant to s. 753(1)(a)(i), there are undoubtedly differences in the facts of the offender’s sexual crimes including ages of the victims, degree of prior familiarity with victims, and physical location of the assaults. That said, because the offender has polymorphous deviant sexuality, there is expected to be differences in the history of his sexually offending behaviour – he has a non-exclusive pedophilic paraphilia as well as a non-consenting coercive sexual preference. As well, the first (1997) and last (2014) sexual crimes are about 17 years apart. Be that as it may, the offender committed sexual crimes in 2001 and 2002, was incarcerated from 2002 to 2008 away from female persons, and indecently exposed himself to young females in 2012. A unique and unifying theme of the sexual crimes and lack of restraint has been the offender’s loss of control, acting on his sexual impulses to dominate non-consenting females driven by his partialism paraphilia – the obsession to masturbate against the bare buttocks of his victims. In some instances, he has ejaculated. On at least two occasions, victims were cleaned or wiped down by the offender. A threat to break a person’s neck occurred during the offender’s first and last sexual crimes. Use of pornography appears to have been a collateral circumstance in the context of some of the offending.
[286] In submitting that a LTSO is appropriate, the defence recognizes that there is “a substantial risk that the offender will reoffend” (s. 753.1(1)(b)). The record very clearly establishes multiple paraphilias with the expression of antisociality through sexual aggression. The psychiatric evidence accepted by the court supports the existence of life-long, fixed disorders relevant to urges to act out sexually with loss of restraint. The sexually offending behaviour has shown itself to be pathologically intractable. The offender has had the benefit of extensive carceral and community-based sex offender treatment. The interventions have proven ineffective. The offender absorbed little from the lengthy course of sex offender treatment. He has failed to self-report and seek help when relapsing into his offence cycle. Despite repeated assertions over the years of understanding his offence cycle and its triggers and coping mechanisms, the insight and control mechanisms are lacking. There have been persistent indications of denial and minimization. The offender is a future threat remaining a high risk to reoffend sexually. The present evidence of the prospects of treatment are far from compelling with the evidence realistically reducing them to a level of being bleak and uncertain.
[287] Review of the s. 753(1)(a)(ii) criteria relating to proclivity for violence reveals a pattern of persistent aggressive behaviour on the part of the offender. The offender has a criminal record for assault in 1990 and 1994 and a history of assault of domestic partners and one of his sons. Apart from this generalized history of violence, the sexual crimes of the offender are all instances of domination of a female victim with a substantial degree of indifference on his part respecting the reasonably foreseeable consequences for his victims. Sexual crimes are inherently offences of violence against the person: Steele, at para. 62; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 27; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 110 per Fish J. in dissent in the result; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 26; R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at paras. 68-72. In terms of pattern, the forcible confinement of the female victims in 1997 and 2014, and the forceful acting out on his partialism paraphilia with all his victims, shows a determined, persevering and enduringly repeated course of behaviour of sexual impulses giving way to victimization of others with disregard of the consequences to his victims. The observations respecting s. 753(1)(a)(i) are apposite here respecting future threat based upon high likelihood of harmful recidivism and the intractability of the offender’s conduct.
[288] Perhaps the very clearest gateway to designation proven by the Crown is that of s. 753(1)(b). Through the course of his sexual offending history, as explained by the offender’s psychiatric disorders, he has shown a failure to control his sexual impulses resulting in the sexual victimization of female persons causing injury, pain and psychological damage. The record of the offender’s sexual crimes and the psychiatric evidence in this proceeding overwhelmingly predicts that he constitutes a future threat – a high risk of sexually predatory recidivism in the context of untreated and, realistically, an unmanageable risk if in the community.
[289] Kirk Williams is declared to be a dangerous offender.
The Fit and Appropriate Penalty
[290] The offender’s psychiatric disorders, life-long and fixed, are either untreatable or at best difficult to treat. And while the penalty phase concerns itself with management of tolerable risk, not a cure, Part XXIV sentencing, as already discussed, looks to whether the future threat posed by an offender requires a life-time treatment or management plan: R. v. Siscoe, 2017 ONCA 133, at para. 5; McConville, at para. 59; Madden, at paras. 12-13; R. v. M.L., 2015 ONCA 487, at paras. 30-31; R. v. Trevor, 2010 BCCA 331, at para. 36. That is the case here.
[291] The offender has exhibited minimization and denial, for example, inconsistent acceptance of his pedophilic paraphilia, advancing his own sexual abuse as a child to explain his own offending, and diminishing the seriousness of his sexual criminality as in the instance of saying to R.S., “It’s not like I raped you”. The offender has demonstrated a persistent inability to control himself sexually.
[292] The offender has failed to respond to years of extensive sex offender and relapse therapy. His criminal record includes multiple breaches of court orders as well as breach of probation convictions. The offender was required to spend almost all of his federal parole under a residency condition. There were parole-related infractions at the CSC CRF and parole was suspended shortly after the residency condition was lifted. At the date of the commission of the predicate offences, the offender was subject to two probation orders requiring him to keep the peace and be of good behaviour. There is a record of missed probation appointments. During the currency of community sex offender relapse maintenance counselling, with inconsistent attendance, the offender failed to self-report to Dr. Heasman or his probation officer resort to pornography which he knew, from years of experience, to be an offence cycle precursor for sexual offending. The offender represents a formidable management challenge beyond any reasonable expectation of control by a LTSO even with its coercive character. On the totality of the record in this hearing, the criteria for imposition of a LTSO do not exist.
[293] In any event, on the evidence accepted by the court, based upon the history of the offender’s sexual crimes, the enduring character of his psychiatric disorders, his high risk for sexual reoffence, and the evidence including the inability of the psychiatric opinions to confidently conclude that the offender’s risk will be reduced to a tolerably safe level within the definite period of a determinate sentence and LTSO, the imposition of an indeterminate preventative sentence is necessary as no lesser measure will adequately protect the public against the offender committing a further serious sexual offence. Put differently, on the totality of the evidence, imposition of a determinate sentence and a LTSO would inevitably result in at least a sixth female victim of the offender’s sexual reoffending.
CONCLUSION
[294] The offender is declared to be a dangerous offender.
[295] The offender is sentenced to indeterminate detention in a penitentiary.
[296] The offender’s status will be subject to regular reviews by the NPB as mandated by s. 761 of the Code.
[297] The Superior Court of Justice (Ontario) Trial Coordinator shall comply with s. 760 of the Code in terms of the record to be forwarded to the CSC.
Hill J.
Released: April 6, 2018
COURT FILE NO.: CRIMJ(P) 935/15
DATE: 2018 04 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KIRK WILLIAMS
DANGEROUS OFFENDER
SENTENCING JUDGMENT
Hill J.
Released: April 6, 2018