COURT FILE NO.: CR-14-0188-00

DATE: 2018 Jun 6

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RENE RONALD BOURDON

Respondent

Andrew Scott, for the Crown

Mary Cremer, for the Respondent

HEARD at Kingston: April 3, 4, 5, 6, 9, 10, 11, 12, 16, 17, 18, 24, 25, 26 and 27, 2018.

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE G.W. TRANMER, SUPERIOR COURT OF JUSTICE, DATED MARCH 18, 2015

Tranmer J.

REASONS FOR DECISION

(Dangerous Offender Application)

INDEX

A. INTRODUCTION ........................................................................................................... 2

B. BRIEF BACKGROUND FACTS ................................................................................. 3

C. THE ISSUE ................................................................................................................... 3

D. RECORD OF CRIMINAL CONVICTIONS .................................................................. 5

E. THE INDEX OFFENCES ........................................................................................... 19

F. THE EVIDENCE.......................................................................................................... 24

1. Victim Impact Statement – MB ............................................................................ 25

2. Jennifer Howie........................................................................................................ 25

3. John Bailey.............................................................................................................. 31

4. Karen Thomson...................................................................................................... 37

5. Sandy Burkitt........................................................................................................... 43

6. Petrina Lemieux..................................................................................................... 48

7. Dr. Gray................................................................................................................... 53

8. Mark Marsolais-Nahwehgahbow.......................................................................... 75

9. Sarah Niman........................................................................................................... 80

10. Winston Brant ........................................................................................................ 88

G. PAST TREATMENT ................................................................................................... 92

H. PAST SUPERVISION .............................................................................................. 100

I. LEGAL PRINCIPLES ............................................................................................... 101

1. Prescribed Penalties........................................................................................... 101

2. Evidence............................................................................................................... 101

3. Purpose and Principles of Sentencing.............................................................. 102

4. Dangerous Offender Provisions......................................................................... 104

5. Dangerous Offender Case Law......................................................................... 105

6. Gladue Principles................................................................................................. 108

J. POSITION OF THE CROWN.................................................................................... 119

K. POSITION OF THE DEFENCE................................................................................ 127

L. REPLY BY CROWN.................................................................................................. 140

M. ANALYSIS.................................................................................................................. 142

I. Designation Stage............................................................................................... 142

II. Sentencing Stage................................................................................................ 143

1. s. 753(4)(c)........................................................................................................... 145

2. s. 753(4)(b)........................................................................................................... 145

a. Protection of the Public................................................................................. 148

b. Impact on the Victims.................................................................................... 149

c. Psychiatric Evidence..................................................................................... 150

i. PTSD................................................................................................... 151

ii. Mood Disorders................................................................................. 152

iii. Paraphilia, Substance Abuse, Childhood Sexual Abuse.............. 152

iv. Risk Assessment – Actuarial Tools................................................. 152

v. Cause of Offending............................................................................ 153

vi. Record of Supervision....................................................................... 154

vii. Response to and Attitude Towards Treatment............................... 155

viii. Lupron................................................................................................. 155

ix. Age – Burnout..................................................................................... 156

x. CSC Aboriginal Sex Offender – High Intensity Programming and the Gladue Factors............................................................................................................. 157

xi. Defence Challenge of Dr. Gray........................................................ 158

xii. The Court Accepts Dr. Gray’s Opinion............................................ 159

d. Gladue Principles........................................................................................... 159

i. Impact on Moral Blameworthiness................................................... 161

ii. Alternate Sanctions and Sentencing Objectives............................ 164

1. Aboriginal Integrated Correctional Program Model – High Intensity Sex Offender Programming.......................................................................... 164

2. Waseskun Healing Centre.................................................... 167

3. Aboriginal Community........................................................... 169

4. Local Options......................................................................... 169

5. Parental Support.................................................................... 170

6. Community Control................................................................ 170

iii. Summary Gladue Principles............................................................. 171

e. Aggravating Factors...................................................................................... 172

f. Mitigating Factors.......................................................................................... 172

g. Sentencing Principles and Objectives......................................................... 173

h. Conclusion – s. 753(4)(b).............................................................................. 173

N. DECISION .................................................................................................................. 176

ORDER: BAN ON PUBLICATION

An Order restricting publication in this proceeding under ss. 486.4(1) of the Criminal Code was made and shall continue. This section of the Criminal Code provides:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347

In addition,

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

DECISION ON DANGEROUS OFFENDER APPLICATION

A. INTRODUCTION

[1] Mr. Bourdon was tried by a judge sitting alone on a 12 count indictment alleging offences committed while he was serving a LTSO in the community, and residing at the Henry Trail Community Corrections Center operated by CSC.

[2] At the conclusion of the evidence and in the course of submissions, Defence counsel conceded that the evidence proved the guilt of Mr. Bourdon in respect of counts 1, 12, 3, 4, 5, 6, 7, and 8. I agreed and he was found guilty of those counts. Those counts were in regard to breaches of the conditions of his LTSO. (June 13, 2016)

[3] He was found guilty following trial of the remaining counts, namely, 2. breach of a condition of the LTSO; 9. fraudulently personated a person with intent to gain advantage for self, namely, sexual intercourse; and 10. and 11. commit sexual assault on MB on two separate occasions, August 5 and August 30, 2012. (Written Reasons dated September 30, 2016 at 2016 ONSC 5707).

[4] This hearing is in regard to an order sought by the Crown pursuant to s. 753(1)(a) and (b) of the Criminal Code declaring Mr. Bourdon to be a dangerous offender and imposing an indeterminate sentence of incarceration.

[5] Evidence on this Crown Application was heard on April 3, 4, 5, 6, 9, 10, 11, 12, 16, 17 and 18, 2018. Submissions were made orally April 24, 25, 26 and 27, 2018 supplemented by written submissions which mirrored the oral submissions in substance.

B. BRIEF BACKGROUND FACTS

[6] Mr. Bourdon's statutory release from his prior custodial sentence began on September 23, 2011.

[7] On January 9, 2012, he commenced serving his LTSO at the Portsmouth Community Corrections Centre.

[8] Unknown to his parole officer, and contrary to the conditions of his LTSO, he developed relationships with 2 women, one of whom was MB. Both women were 18 years of age and were struggling to recover from drug addictions. He met them through Narcotics Anonymous, where he was authorized and encouraged by his parole officer to attend. Through text messaging, he deceived MB into believing that a fictitious person named Ali had fallen in love with her and planned to marry her. The elaborate and prolonged deception caused MB to fall in love with Ali even though she never met him in person. Mr. Bourdon would set up meetings and then fabricate excuses why Ali did not attend. The second young woman was also caught up in and believed in the deceit. The deception led directly to both women having sex with Mr. Bourdon which otherwise would not have occurred.

[9] Although the parole officer required and checked Mr. Bourdon's telephone records, he did not monitor or check, or appear to know anything about, the constant and extensive text messaging by Mr. Bourdon, or his second undisclosed cell phone.

C. THE ISSUE

[10] Defence counsel advised at the outset of this hearing, and reconfirmed during the testimony of Dr. Gray, that Mr. Bourdon concedes that he meets the criteria for designation as a dangerous offender under the Criminal Code. Mr. Bourdon accepts the opinion of Dr. Gray as set out in his report in that regard.

[11] In particular, Mr. Bourdon, through counsel, concedes that on the evidence of his past and the index offences, and the evidence adduced on this application, including the testimony of Dr. Gray, the court shall find him to be a dangerous offender, having been satisfied that he meets the requirements set out under subsections s. 753(1)(a)(i) and (ii), and 753(1)(b).

[12] I provide reasons below in the Analysis section of these Reasons as to why I am satisfied that Mr. Bourdon meets the criteria set out in those subsections of the Criminal Code and shall therefore be found to be a Dangerous Offender.

[13] Defence counsel submits that the issue in the case is that Crown counsel seeks an indeterminate sentence and Defence counsel seeks a determinate sentence followed by a long-term supervision order.

[14] Defence counsel submits that the issue turns on whether there is appropriate treatment for Mr. Bourdon. Is Mr. Bourdon treatable?

[15] In the words of s. 753(4.1) and s. 752 of the Criminal Code:

(4.1) 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.

serious personal injury offence means

(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).

D. RECORD OF CRIMINAL CONVICTIONS

October 28, 1997

[16] Mr. Bourdon pleaded guilty to knowingly using a forged medical prescription and to stealing prescription forms. The sentencing judge noted that Mr. Bourdon had developed an addiction to prescribed medication due to back problems. Passing of sentence was suspended and he was placed on 12 months’ probation. One term of the probation was to attend and actively participate in such rehabilitative programs for drug addiction as directed by his probation officer.

January 29, 2001

[17] Mr. Bourdon was convicted of failing to appear. Sentence was suspended and he was placed on probation for one year.

December 1, 2003: Justice Rivard

[18] Following a two week trial, Mr. Bourdon changed his pleas to guilty to 2 counts of sexual assault on two different victims, to administering a stupefying drug to a 3rd victim with the intent to enable himself to commit the indictable offence of sexual assault and to possession of stolen property of a value not exceeding $5000. Based on the evidence adduced at trial and the guilty pleas, Mr. Bourdon was convicted of these 4 counts.

[19] On June 18, 2004, Justice Rivard imposed a global sentence of 5 years in jail, apportioned to 2 x 2 years consecutive for each of the 2 sexual assaults, 1 year consecutive for administering the stupefying drug, and 1 day in jail concurrent for the possession of stolen property. Against the total sentence imposed of 60 months was credit for prior to trial custody, which was 19 months with credit on a 2 for 1 basis, leaving a sentence commencing that day of 22 months in jail. Justice Rivard also found Mr. Bourdon to be a long-term offender and ordered that upon his release he be supervised in the community for a period of 7 years pursuant to the conditions of a LTSO.

[20] In his reasons, Justice Rivard noted that Mr. Bourdon had mixed drinks called “paralyzers” for his first victim, causing her to become intoxicated. He performed oral sex on her. She was unable to move, lapsing in and out of consciousness. Mr. Bourdon had sexual intercourse with her. The next morning she was confused and disoriented. Her victim impact statement attested to the devastating impact his unwanted sexual activity had upon her.

[21] His next victim was a tenant in a downstairs apartment in the building in which he resided with his common-law spouse. He told the victim that he was looking to hire a secretary for his business and persuaded her to meet with him in his apartment for an interview. He prepared a cup of coffee for her. Her next clear recollection was of being in the hospital. Police investigation revealed that he had drugged her with benzodiazepines. Her victim impact statement also spoke of the horrendous and lasting impact his crimes upon her had caused.

[22] His third victim was the wife of a friend. He had driven the friend to London for a job interview. Mr. Bourdon returned to North Bay without the friend. He attended at the friend’s house where he spent the night. The next morning he provided his third victim with a coffee. She became disoriented and could not work. She was in and out of consciousness as he sexually assaulted her, which included sexual intercourse. Her victim impact statement described how the assaults traumatized her and altered her life.

[23] All three victim impact statements made it clear that the victims had been left with long-term emotional difficulties.

[24] As described in the testimony of Dr. Gray on this application, Dr. Glancy, psychiatrist, assessed Mr. Bourdon for the purposes of the long-term offender hearing heard by Justice Rivard.

[25] Justice Rivard noted that despite his guilty pleas, Mr. Bourdon denied and minimized the offences for which he was being sentenced. Justice Rivard commented that not only did this show a lack of remorse but that it meant it may be difficult to work with him in cognitive behavioural therapy.

[26] Justice Rivard was skeptical about Mr. Bourdon's late show of remorse and admission of guilt. The testimony that Mr. Bourdon had provided during the trial was not credible.

[27] Justice Rivard concluded that Mr. Bourdon's willingness to take treatment was motivated more by his desire to gain release than by his genuine desire for treatment.

[28] Justice Rivard concluded that there was a substantial risk that Mr. Bourdon would reoffend. Together with the offences of which he had been convicted, and despite no criminal record for similar offences, Justice Rivard considered that Mr. Bourdon had videotaped several women in his neighbourhood without their knowledge, he was unlawfully in the residence of a woman, he had entered a bedroom where two of his female cousins were sleeping and lightly brushed the top of his 22-year-old cousin, and he had drilled holes to gain visual access to a neighbour's apartment and watched them in their bedroom. Letters that he had written to his common-law spouse and her mother disclosed a dishonest, manipulating self-serving individual concerned only with his plight. He considered Dr. Glancy's findings of a paraphilia or sexual deviation, chronic depression, opiate abuse and denial and minimization of his offences. He also considered the pattern of offending by rendering victims unconscious.

[29] Justice Rivard emphasized specific deterrence and denunciation so that members of the community would see that the courts will be severe in the punishment given to those who engage in such crimes.

[30] Justice Rivard noted that Mr. Bourdon’s minor criminal record to that point in time, plus the opinion of Dr. Glancy, indicated that Mr. Bourdon may be a suitable candidate for treatment, thus assisting in rehabilitation.

[31] Justice Rivard recommended that the jail sentence be served at OCI for cognitive behavioural treatment.

August 3, 2004

[32] Mr. Bourdon pleaded guilty to public mischief, namely, causing a detective to enter upon an investigation by reporting that he had been assaulted by a police officer. He was sentenced to three months in jail consecutive to time being served.

July 2, 2008: Justice Belch (R. v. Bourdon, 2008 CarswellOnt 7474)

[33] Mr. Bourdon was charged with breaching his long-term supervision order by failing to comply with the order which required that he disclose any and all contact regarding females with whom he associated or attempted to associate. This is the breach described in the testimony of John Bailey at the outset of this present Dangerous Offender application. The trial commenced, but Mr. Bourdon changed his plea to guilty.

[34] Justice Belch imposed the sentence of 4 years in jail less credit of almost 2 years pretrial custody on a 2 for 1 basis, for a sentence commencing that day of just under 6 months.

[35] Justice Belch made the following observations:

[15] My review of the material and Crown's submissions suggest the following:

(a) Mr. Bourdon was sentenced June 18, 2004 (22 months) and August 3, 2004 (three months), for a total of 25 months. That is, of course, after taking into account the pre-trial custody.

(b) He was released from custody November 9, 2005 after serving approximately 17 months.

(c) The seven-year Long Term Supervisory Order commenced November 9, 2005 and I calculate that it ends November 8, 2012.

(d) While at Brampton OCI he received misconducts for possession of contraband and was noted as uncooperative.

(e) A community strategy was developed for Mr. Bourdon. It noted he was an untreated sex offender, in denial, with little insight and a tendency to minimize occurrences. He had serious drug abuse problems and an extremely negative altitude. A plan with a number of conditions was introduced including a requirement that any and all contact regarding females he associated or attempted to associate will be disclosed. Also he was to abstain from drugs.

(f) Mr. Bourdon was to reside at the Keele Community Centre - he was there only three weeks when he was suspended for breach of a condition involving internet access chat rooms - 90 days residency was re-imposed by the National Parole Board. It is noted he had been manipulative and dishonest about court dates.

(g) Next, it is noted that his progress in the community was slow and trying - he somehow obtained the address of a female and sent her flowers and invited her to telephone him. He was again suspended and there was a recommendation that there be a warrant issued, however, no information was laid as authorities were unable to retrieve the information.

(h) He sent a "paper airplane" to the walkway from his cell, which was picked up by a female employee who then posed as the intended recipient.

(i) He was eventually allowed to possess a cell phone, provided it was not capable of taking photographs, and he was to provide monthly billing records.

(j) When he failed to provide proper monthly cell phone billing records and he disclosed the contact with a minor female, he was suspended and at a parole board hearing it was recommended an information be laid relating to the billing records and the female contact. He was required to reside for a further 90 days. He was let off regarding the billing issue, however, the female contact led to Count #1 which is before the court.

[23] Additionally, the Crown submits the proper approach is articulated by Ritter, JA in his first three paragraphs of R. v. W. (H.P.), 2003 CarswellAlta 564 (Alta. C.A.), involving a charge of impaired driving by a long-term offender with a serious drinking problem. The judge states:

1. The issue in this appeal is what principles, factors and considerations a sentencing court should take into account when sentencing for breach of a condition attached to a long-term offender order. It is my conclusion that breaches of such conditions will normally be regarded as serious and will attract commensurate sentences. Further, such breaches cannot be equated with breaches of probation orders.

2. I also conclude that the analysis of breaches of conditions of long-term offender orders should be carried out on a contextual basis so that the sentence imposed reflects the nature of the breach, particularly with regard to the risks of danger to society inherent in the breach and with regard to appropriate sentencing goals.

[24] Also of interest is paragraph 41 reproduced here:

41. A judge sentencing for a breach of a condition of a long-term offender order must properly characterize the role of such a condition. If the role of the condition is central to management of the risk of recidivism, then its breach will be more serious than would be the case if the role of the condition is an ancillary aid to management of such risk. A strong indicator of the role of the condition of abstinence is whether alcohol or substance abuse played a significant part in the commission of the offences in the past.

[25] Paragraph 32 of R. v. Johnson, 2001 CarswellBC 2128 (B.C. C.A.), is instructive:

... Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed by a long-term community supervision order of a maximum of 10 years in accordance with the Corrections and Conditional Release Act. Supervision conditions under s. 134.1(2) of the Act may include those that are "reasonable and necessary in order to protect society." The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses - and to do so without resort to the blunt instrument of indeterminate detention ...

[26] The Crown submits Masse J. of the Ontario Court of Justice has dealt with many of these breaches in the past and recommends the conclusion of Justice Masse beginning at page 15 of R. v. Fox, 2007 CarswellOnt 9455 (Ont. C.J.):

In conclusion, I am of the view that Parliament views a breach of any long-term offender supervision order to be a most serious offence. This is demonstrated by the maximum penalty of ten years imprisonment. This is in contrast to breaches of Section 810.1 and 810.2 recognizances that provide for a maximum of only two years imprisonment. The appropriate sentencing principles and objectives that must be applied are general and specific deterrence but primarily the need to protect the public. In the case of Mr. Fox specific deterrence is less of a consideration since he has not been deterred in the past and is not likely to be deterred in the future. Consequently, we are here dealing with the general deterrence and the protection of the public. Mr. Fox has consistently refused to abide by his long-term offender supervision order. He has been suspended nine times in the past for breaches of this order and he has been convicted once and received an effective sentence of one year for that breach. His conduct, in refusing to abide by a treatment regime that is designed to reduce the risk of his reoffending puts the public at serious risk of being victimized by this untreated sexual offender. It has been demonstrated that, if Mr. Fox does not take his prescribed medications then he will almost certainly reoffend. His promise to take his medication is an empty one and it is meaningless. It is incumbent upon this court to protect the public by the imposition of a sentence that will separate Mr. Fox from the community thus reducing the risk of reoffending. However, the court still cannot loose [sic] sight of the principle of proportionality.

[27] Also, in R. v. Nelson, 2007 CarswellOnt 9456 (Ont. C.J.), Justice Masse states at page 12:

Part XXIV of the Criminal Code of Canada deals with dangerous offenders and long-term offenders. Section 753.1 of the Code provides that a court may find an offender to be a long-term offender where 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.' However it is clear that reasonable possibility can only be realized if the offender conforms to the conditions of his long-term offender order."

[28] Also page 18:

I am of the view that significant sentences must be imposed even for slight breaches of a long-term supervision order in order to protect the public from offenders who have already been held to be a danger to the public and are at risk of reoffending. Such sentences will serve to protect the public and to deter the offender from reoffending. Such offenders must be made to know that even minor breaches will attract serious sanctions. These offenders have to realize that they will be kept on a very short leash. Breaches of a long-term supervision order are not to be equated with breach of probation nor breaches of the more serious recognizances contemplated by s. 810.1 and s. 810.2. Nonetheless, the sentence to be imposed must not be so severe as to lose sight of the principles of proportionality as well as the possibility of rehabilitation.

[37] The Defence acknowledges the North Bay trip was a hare-brained idea and Mr. Bourdon is a liar …

[41] In addition, Mr. Bourdon is not an untreated sex offender - while at Brampton, OCI he attended the program there - unfortunately, he was transferred before the program was completed. Furthermore, he went to see Dr. Eccles on several occasions. The Defence submits that. Mr. Bourdon is amenable to treatment.

[52] Mr. Bourdon's conduct is more blameworthy - he had numerous meetings with one of the females here - at such diverse locations as a pool room, while shopping, in a car, hotel room, none of which had been reported beforehand.

[61] The underlying facts in the offences of Mr. Bourdon establish a disturbing pattern giving rise to the concern he suffers from some type of but not the most serious aspects of paraphilia - to the extent it can be treated, it has to be addressed by him and those in authority. Three previous suspensions, two of which involved attempts to form some sort of relationship with females; plus this present example of trying to establish a relationship with a 17 year old female added to all of the incidents referred to at the long-term offender hearing, depict a pattern which continues to the date of this offence. I do not accept the explanation he was simply helping her financially and she, a 17 year old, was assisting somehow in preparation for his civil trial, at least in any meaningful way - the correspondence involved to her clearly shows his romantic interest. The suggestion of a job offer in a store he might open in the future has an eerie resemblance to his trying to hire a neighbour in one of the past offences. All in all, his conduct causes the court to worry about what the next step might he and will it involve harm to a member of the public.

[62] Yes, unlike R. v. Browne, this is a first criminal offence of breaching a condition, but unlike R. v. Priaulx, [2008] S.J. No. 36, this was not one incident, an unintentional random meeting, but rather many meetings following careful planning on his part with the intention of clearly avoiding any disclosure to his parole supervisor. I am satisfied this breach can be characterized as "connected to the management of recidivism".

[64] I find this was a serious breach, not a minor breach given this offender's pattern of conduct. The condition he breached was designed to protect the public - it attracts serious sanctions.

August 23, 2010: Justice Turnbull

[36] Mr. Bourdon was charged with breaching the conditions of his LTSO, namely, not to own, access, or possess pornography, and not to have any access to the Internet or to possess any computer with Internet capabilities. Following trial, he was found guilty of both counts. He did not have permission to own a laptop. Officers found indications of recent inter-net use, images of women in provocative positions and a DVD in the computer case that showed young women engaged in sexual touching. The accused testified that he had given his computer to another offender. The trial judge did not believe Mr. Bourdon's testimony. He found that Mr. Bourdon made the story up as the evidence in the case unfolded. He had no doubt that Mr. Bourdon did not turn his computer over to another offender.

[37] Justice Turnbull gave reasons for the sentence imposed on March 1, 2011.

[38] Justice Turnbull reviewed previous suspension warrants issued while Mr. Bourdon was in the community bound by the conditions of his LTSO, commencing at paragraph 15 of his decision:

15. Mr. Bourdon was released from Central North Correctional Centre on a Long Term Supervision Order to Keele CCC on November 9, 2005. On December 1, 2005, a suspension warrant was issued/executed as Mr. Bourdon was found to be accessing several different pornography and escort service websites as well as chat rooms. The National Parole Board issued a reprimand on January 27, 2006 and Mr. Bourdon was returned to Keele CCC on January 30, 2006;

16. On March 20, 2006, a second suspension warrant was issued/executed as Mr. Bourdon was alleged to have had contact with another resident’s girlfriend. He was returned to Keele CCC on April 19, 2006;

17. On May 8, 2006, a third suspension warrant was issued/executed as Mr. Bourdon was found to be in violation of his “no contact” condition with females without prior authorization by the Parole Supervisor. The National Parole Board cancelled the suspension on August 3, 2006 and Mr. Bourdon was re-released on August 15, 2006 to Hamilton CCC;

18. On September 26, 2006, a fourth suspension warrant was issued/executed as Mr. Bourdon had failed to provide detailed billing for his cell phone charges. File information indicates that Mr. Bourdon disclosed at that time that he had been in contact with a minor female and that he had not disclosed said information to his Parole Supervisor. Mr. Bourdon was suspended after it was determined that he had been on a trip to North Bay in the presence of a 17 year old female. The National Parole Board concurred with the Laying of an Information on November 23, 2007 and Mr. Bourdon was transferred to Quinte Detention Centre to await conviction/sentence on the Breach of the Long Term Supervision Order. On July 2, 2008, Mr. Bourdon was credited with 1,288 days of pre-sentence custody and adjudged an additional 172 days in custody. He was released on statutory release on October 23, 2008 with a condition to reside at the Hamilton CCC. Mr. Bourdon reached his warrant expiry on December 20, 2008 and then commenced his Long Term Supervision Order with a residency condition at Hamilton CCC;

19. On February 2, 2009, a fifth suspension warrant was issued/executed. On October 1, 2010, Mr. Bourdon was found guilty of Failure to Comply with Conditions x2, contrary to s. 753.3(1) of the Criminal Code of Canada and currently awaits disposition of said matter; and

20. The September 26, 2006 breach resulted in the offender ultimately being convicted of an offence contrary to s. 753.3 of the Criminal Code. In July, 2008, Justice Belch imposed an effective sentence of 4 years for that offence. Given credit for time served, the offender had less than 6 months remaining on his sentence. R. v. Bourdon [2008] O.J. No. 5034.

[39] Justice Turnbull reviewed the aggravating and the mitigating circumstances in the case before him:

Aggravating Circumstances

22. As noted above, Mr. Bourdon has already been sentenced to four years by Belch J. for breach of his LTSO. He does not appear to have learned his lesson, namely that the provisions of such orders are to be strictly adhered to.

23. The pre-sentence report indicates that he has a poor supervision record and I must concur. It is also noted that he has limited program participation and has shown low motivation to address his behaviour.

24. Although he has participated in some treatment in Federal and Provincial institutions, he has not completed any treatment program in its entirety to date. It is noted that his risk level with respect to public safety is high.

25. Mr. Bourdon would not permit the probation and parole officer who prepared the Pre Sentence Report to contact family and friends insisting that a Criminologist he had hired would be contacting them. During the submissions on sentence, I granted leave to that criminologist, Dr. Matthew Yeager to give evidence. He indicated that he spoke by telephone with Mr. Bourdon’s parents and some school officials where he had attended school. However, he did not interview friends or other family members.

Mitigating Circumstances

26. It is surprising to this court that bearing in mind the conditions of his LTSO, his parole officer would not have carefully assessed the suitability of the GreenByte computer program before having him register. The evidence during the trial indicated that it was necessary to use the internet in order to successfully complete the course. This immediately put Mr. Bourdon in a precarious position with respect to his LTSO conditions. It does not excuse his behaviour but it is relevant to my assessment of a proper sentence.

27. I have considered that the seriousness of the breach of conditions for which he has been convicted in this case is not significant, relative to the breaches for which he was sentenced by Belch J. in 2004.

Comments of Mr. Bourdon

28. Mr. Bourdon made a lengthy statement to the court at the conclusion of sentencing submissions. He noted that he had taken Zoloft medication as recommended by Dr. Glancy. He stated that while serving his sentence at Penetanguishine in 2005, he approached the medical staff for the medication and he has continued to take it. He noted that there was no court order requiring him to do so. He stated that he was placed in the Hamilton CCC and had to wait 3 months before he could get an hour out in the community on my own. Since then, he stated that he has taken four injections that are good for 5 to 6 months which show that he is trying to help myself out. He commented that these efforts it does not show up in his file and he asserted that the Parole Board “does not look at anything.”

29. He further noted he had taken 22 weeks of a 23 week program while he had been in custody after his original sentence the last week he missed was simply to “party” to celebrate completion of the program. He also stated that he had read the self help books for sex offenders and watched videos of offenders. He stated that he had worked in peer groups with other offenders in which the offenders are forced to talk to each other about the circumstances that led to them offending. These sessions involved three offenders in each group each day from Monday to Friday, during which he was expected to make notes and then turn them over to the social workers. Mr. Bourdon stated that in those groups he had admitted his responsibility for the sexual assaults which precipitated him being found a dangerous offender and ultimately being placed on a LTSO. Mr. Bourdon stated that Dr. Vitali has allegedly indicated that he is suitable for treatment as a sex offender and that he would be better off closer to his family and not in a half way house. Mr. Bourdon felt that he needed support and not to be just sitting in a jail cell.

30. I must say that the evidence of Dr. Yeager was helpful and informative to this court. However, I am not prepared to follow his recommendation because I am not at all satisfied that Mr. Bourdon has received the treatment needed to allow him to control his sexual urges in public. He has had the opportunity in the past but the earlier comments from the pre sentence report clearly indicate he has not fully applied himself to remedy his problems. He continues to be, in my view, a high risk to reoffend. …

[40] In his decision, Justice Turnbull considered sections 718(a)–(f), 718.1 and 718.2 of the Criminal Code of Canada. He commented:

45. Furthermore, the role of the conditions that were breached are central to the management of Mr. Bourdon’s risk of reoffending. While I recognize that the pornographic pictures in his possession were minimally pornographic, he knew that such images were directly contrary to the terms of his LTSO. He also knew that he was not to be accessing the internet and not to have a computer which could access the internet because he would be tempted to access inappropriate sites.

46. Belch J. stated at paragraph 62:

I agree that part of the issue here is how to manage the risk Mr. Bourdon will reoffend while keeping an eye on protecting the public. The task is made more difficult when Mr. Bourdon's behaviour to date is rife with examples of his ignoring the conditions imposed by the parole supervisor and the Parole Board. I note Mr. Bourdon now says he has finally learned from his last period of pre-trial incarceration - given his past performance it is difficult to know how much stock to place in this comment, i.e. is it true or said only to affect today's sentence?

48. I have no hesitation in saying that Mr. Bourdon did not and has not learned from his period of incarceration imposed by Belch J. He allowed him two for one credit for his pre trial custody, partially due to the submissions made that he was housed in a cell with two other prisoners for much of his pre trial custody time.

49. At para. 66, Belch J. wrote as follows:

The underlying facts in the offences of Mr. Bourdon establish a disturbing pattern giving rise to the concern he suffers from some type of but not the most serious aspects of paraphilia - to the extent it can be treated. It has to be addressed by him and those in authority. Three previous suspensions, two of which involved attempts to form some sort of relationship with females; plus this present example of trying to establish a relationship with a 17 year old female added to all of the incidents referred to at the long-term offender hearing, depict a pattern which continues to the date of this offence. I do not accept the explanation he was simply helping her financially and she, a 17 year old, was assisting somehow in preparation for his civil trial, at least in any meaningful way - the correspondence involved to her clearly shows his romantic interest. The suggestion of a job offer in a store he might open in the future has an eerie resemblance to his trying to hire a neighbour in one of the past offences. All in all, his conduct causes the court to worry about what the next step might he and will it involve harm to a member of the public.

52. The nature of the offences of which he has been convicted are not in themselves significant. However, in the context of a long term offender being sentenced for a second conviction for breach of LTSO, they are serious breaches. He was sentenced by Belch J. for four years for his earlier first breach.

53. In the case of R. v. Guilford [1999] O.J. No. 4894, Hill J. at para. 41 stated:

The object of the long term offender legislation is a recognition of those instances where there is a tolerable risk – a case where the danger of recidivism can be safely managed with strict supervision and with the deterrent spectre of severe punishment for breach of the long-term supervision order.

54. I frankly have serious doubts on all the record before me that Mr. Bourdon will ever satisfactorily comply with the provisions of his LTSO. Hence, I find the principle purpose of sentence in this matter is not specific deterrence but general deterrence.

55. I have considered the “step up” principle in this sentence and also the issue of proportionality, especially when I have note[d] that Mr. Bourdon received four years from Belch J. but for a series of significantly more disturbing actions.

[41] Justice Turnbull sentenced Mr. Bourdon to 2 years in custody on Count #1 and 1 year in custody on Count #2 to be served consecutively to Count #1. He was credited on the basis of 1.5 to 1 days for pretrial custody, of 521 days. The net sentence was of less than 1 year in jail.

[42] The Court of Appeal upheld the conviction and the sentence.

E. THE INDEX OFFENCES

[43] Through July and September 2012, Mr. Bourdon was living at the PCCC bound by the LTSO that had been imposed by Justice Rivard and the conditions of the LTSO imposed by the National Parole Board. He began living at PCCC on or about January 9, 2012. The expiry date of the LTSO at that time was March 6, 2014.

[44] The relevant conditions of his LTSO were:

1. Disclose any and all contact to your parole supervisor regarding females with whom you associate or attempt to associate;

2. Abstain from drugs other than prescribed medications and over-the-counter drugs;

3. Abstain from use of alcohol;

4. Not to own, access or possess pornography;

5. Possession of a cellular telephone will be permitted providing it does not have the capability of taking photographs and it is used with a plan that provides detailed monthly billing in order that your parole supervisor can monitor your calls;

6. Not to have access to the Internet or possess any computer that has Internet capabilities; and

7. Remain at all times in Canada within the territorial boundaries fixed by your parole supervisor.

[45] As a result of his activities while being permitted to be in the community between July and September 25, 2012, Mr. Bourdon committed the index offences.

[46] The details of these crimes are contained in my trial decision for convictions dated September 30, 2016, cited as 2016 ONSC 5707.

[47] Following the lengthy trial proceedings commencing in March 2015 and ending in June of 2016, Defence counsel at the outset of her submissions conceded that the evidence proved the guilt of her client in respect of breach conditions of LTSO counts 1, failed to disclose females with whom you associate or attempt to associate; 12, failed to disclose females with whom you associate or attempt to associate; 3, not to own, access or possess pornography; 4, not to have a cell phone not capable of taking photographs and used with a plan that provides detailed monthly billing in order that your parole supervisor can monitor your calls; 5, not to have any access to the Internet or possess any computer that has Internet capabilities; 6, failed to obey the law and keep the peace; 7, failed to abstain from drugs other than prescribed medications; and 8, failed to abstain from the use of alcohol. I agreed and he was found guilty of these crimes.

[48] He was found guilty of the remaining counts.

[49] The victim MB was 18 years of age, alone in the city without any family or friends, attending NA as a recovering drug addict, struggling to overcome her addictions. Mr. Bourdon was encouraged by his parole supervisor to attend NA. EC was 18 years of age at the time and in similar circumstances to MB. She met Mr. Bourdon through MB at NA.

[50] EC was as completely deceived as was MB by the elaborate plan of deception and lies executed by Mr. Bourdon on them, in person and through text, over an extended period of time. He convinced them that “Ali” who did not in fact exist, fell in love with and became engaged to MB, and died and then came back to life. His purpose was to gain sexual relations with both vulnerable young women.

[51] I found both MB and EC to be completely credible and reliable witnesses despite the unlikely scenario that they testified to. Such was the persuasiveness of the deception carried out by Mr. Bourdon.

Count 2: Breach Territorial Limitation Condition

[52] He was found guilty of breaching the territorial limitation condition in breach of the specific instruction of his parole officer by attending at the residence of MB on many occasions.

Count 9: Personation to Gain Advantage

[53] Within days of meeting MB in mid July 2012, Mr. Bourdon launched an elaborate scheme of deception to deceive MB into believing that Ali was a real person, had fallen in love with her and wanted to marry her. In fact, she came to believe that she was engaged to be married to Ali. The fabrication was executed by Mr. Bourdon in person and by text messages that he convinced MB were between him and Ali and between her and Ali. Ali did not exist. MB never met him. Mr. Bourdon convinced MB that meetings were to occur, but there would always be a reason for Ali not to show up.

[54] MB made it clear at the outset and throughout her relationship with Mr. Bourdon that she had no intention whatsoever to have sexual relations with him or even a relationship that involved affection or hugging.

[55] Mr. Bourdon convinced MB that Ali required life-saving surgery, and that it was necessary for Mr. Bourdon to pay for that. He convinced her that Ali refused to allow Mr. Bourdon to do that and that he would rather die. Mr. Bourdon convinced MB that the only way Ali would agree to the surgery, paid for by Mr. Bourdon, was if MB, Ali’s fiancé at the time, would have sex with Mr. Bourdon. On this basis alone, she agreed.

[56] She set specific limits on the sexual activity that would be permitted as part of this arrangement.

[57] This deception resulted in Mr. Bourdon having sexual intercourse with MB.

[58] I found beyond a reasonable doubt that Mr. Bourdon personating the fictitious Ali in text messages was intended to gain an advantage for Mr. Bourdon that he could not otherwise attain namely sex with MB.

Count 10: Sexual Assault, Econo Lodge, August 5, 2012

[59] Mr. Bourdon deceived MB into believing that she would meet Ali to celebrate their love on this occasion in Kingston, at the Econo Lodge.

[60] So completely deceived was MB that she thought she had “agreed to be engaged to the perfect man (non-existent Ali). Everything I wanted him to be. He was charming, although he had a bit of a history he deserved a second chance”. “He made me feel special”.

[61] I found that Mr. Bourdon drugged her on this occasion in the hotel room while they were waiting for Ali, supposedly to appear. I concluded that Mr. Bourdon intended some form of sex with her in that room that night.

[62] After drinking some liquid that Mr. Bourdon prepared for her, she became very lethargic. She would become awake and aware, but her body could not move. On several occasions when she woke up, she felt like someone was pressing up against her breasts, bum and vaginal area. Someone was tracing her vaginal and breast areas as if with an index finger and rubbing. This was over her clothing except for her breasts where there was some touching under her bra.

Count 11: Sexual assault, August 30, 2012

[63] This was the occasion when MB consented to specific sexual activity with Mr. Bourdon for the purpose of Ali having the surgery he required be paid for by Mr. Bourdon.

[64] Contrary to the specific consent given by MB, Mr. Bourdon attempted to touch her vagina with his fingers. She told him to stop and he did so. He tried to perform oral sex on her. She stopped him and when he tried to proceed she kneed him in the face and he stopped.

[65] He was found guilty on the basis that his conduct was offensive contact that was not consented to, and that affronted MB’s personal sexual integrity.

EC

[66] Although not convicted for sexual assault with respect to EC, he created a deception to persuade her to have sexual intercourse with him. She had rejected his frequent proposal that they be “friends with benefits”.

[67] One day he showed up with his car, fully packed with belongings, telling her that he was going to drive to Brazil. He had persuaded her that he was very upset because his friend Ali had died. She believed that, as did MB. He told EC that he was going to drive to Brazil to get a fresh start. She was extremely vulnerable at this time, battling against her addictions. She looked at him as a mentor to help her overcome her addictions.

[68] She asked herself what she could do to make it better for him. She decided the only thing she could offer was what he'd been asking for, sex.

[69] For this reason, she submitted to sexual intercourse with him in the back of his car. She thought, she was just helping a friend.

F. THE EVIDENCE

[70] The evidence on this hearing is not in dispute. The Crown and Defence do not challenge the credibility and reliability of the witnesses.

[71] The Crown witnesses were Jennifer Howie, John Bailey, Karen Thomson, Petrina Lemieux and psychiatrist Dr. Jonathan Gray.

[72] Dr. Gray’s qualifications as an expert witness were not challenged by Defence.

[73] The Defence called Sandy Burkitt, Mark Marsolais-Nahwehgahbow, Sarah Niman and Elder, Winston Brant.

[74] The witnesses, with the exception of Dr. Gray, were not offered as expert witnesses to give opinion evidence. Counsel agreed that their evidence was admissible because they were testifying based on their knowledge and experience.

[75] The Exhibits filed on the Application include:

Number

Description of Exhibit

6

Victim Impact Statement, MB

7

CSC - Community Supervision Information Package

9

2016 CSC Statistics re: Populations in Federal Prisons

12

Waseskun Healing Center Information Package

13

CSC Programming Booklet

15

Dr. Gray’s Assessment Report

18

Sacred Story of Rene Bourdon – Gladue Report

19

Supplement to Sacred Story: the penalty proposed by the Gladue writers

20

Agreed Statement of Fact with respect to availability of Aboriginal focused treatment in federal medium and maximum institutions

1. Victim Impact Statement - MB

[76] Exhibit 6 is the victim impact statement of MB.

[77] She attempted to read it in court, but because she remained so upset some 6 years after the fact, she was unable to complete the second paragraph, of 3 pages. The Crown read the balance of her statement.

[78] It is clear that she trusted Mr. Bourdon as her best friend. It is clear he betrayed that trust when she was at her most vulnerable. He was her sole significant friend in the city and she was attempting to overcome her drug addictions. His deceitful manipulation of her has left her afraid, lacking in self-esteem and self-confidence, and without any happiness in her day. She trusts no one. She feels alone even in a room full of people. Her feeling of emptiness continues 6 years after the events initiated by Mr. Bourdon.

2. Jennifer Howie

[79] Ms. Howie has been employed by CSC for 19 years. She has been a parole officer supervisor since 2009.

[80] She testified about the various forms of release available to offenders found to be dangerous offenders serving either a determinate or an indeterminate sentence and the management operations focusing on community supervision. Ex. 7 is the CSC Community Supervision Information Package.

[81] On intake into the federal penitentiary system, the criminal profile report is prepared concerning the inmate and from that a correctional plan is developed. The correctional plan is used as a blueprint for the offender’s sentence and the offender's progress is measured against the goals set out in the plan. The correctional plan is intended to cover any portion of the sentence served in the community.

Dangerous offender serving a determinate sentence

[82] For a designated dangerous offender serving a determinate sentence, all forms of release are available including temporary absence, escorted or not, work-release, day parole, full parole, statutory release (after serving two thirds of the sentence) and warrant expiry. Either at statutory release or warrant expiry, such a dangerous offender then serves the LTSO portion of the sentence under supervision in the community. There is no discretion at this point in regard to release.

[83] If such a dangerous offender is held in custody to warrant expiry, he or she must be released, and cannot continue to be incarcerated, even if he or she poses a high risk to the public. He or she would be supervised in the community pursuant to the conditions imposed by the LTSO.

Dangerous offender serving an indeterminate sentence

[84] For a designated dangerous offender serving an indeterminate sentence, the full parole eligibility date is 7 years from the date of arrest. In Mr. Bourdon's case, that would be September 25, 2019. Such an offender would be eligible for day parole 3 years prior to the full parole eligibility date. In Mr. Bourdon's case that would be September 25, 2016. There is no statutory release date for a dangerous offender serving an indeterminate sentence.

[85] A dangerous offender serving an indeterminate sentence does not have an automatic date set by legislation for release into the community. Such an offender has to earn his release by establishing to the PBC that the risk he poses is manageable in the community. The decision to release is in the discretion of the PBC. PBC sets the conditions for any such release with input from CSC case management team, including the parole officer.

[86] There is an automatic review of a decision to deny release every 2 years, which includes an in person hearing, unless the offender waives such a hearing in which case there is a paper review.

Residence in the community

[87] Offenders who have a residence condition imposed on them by the PBC reside either in privately operated community-based residential facilities ( CBRF ) or in CSC operated community correctional centres ( CCC ).

[88] The CBRFs are not staffed as extensively as are the CCCs. The latter in-house staffing includes parole officers on a 1 to 13 ratio, program officers, an Aboriginal community liaison officer, an Aboriginal community development officer, a reintegration officer, an intelligence officer, a PSW, community mental-health staff and commissionaires to monitor the front door. Although in 2012, there were correctional officers (3) and a police community liaison officer staffing CCCs that is no longer the case.

[89] There are 2 CCCs in Ontario, in Toronto and in Kingston. There is space for 40 offenders at the Henry Trail Centre in Kingston. Officers are entitled to conduct searches within the CCCs.

[90] The frequency of contact between an offender and the parole officer in the CCC is a minimum of eight times per month. The parole officer manages the offender’s access to the community, which is usually from limited access to increasing access.

[91] The CSC goal is for full reintegration of the offender into the community. The intention is not a full-time lock down in the CCC for the duration of the LTSO.

[92] Parole officer monitoring and supervision of the offender requires to a large extent reliance on what the offender tells the parole officer. This is all the more the case where there are no alternative sources of information such as close family members. Parole officers do not monitor the offenders 24 hours a day. Parole officers can ask police for supplemental information but parole officers have limited access to that source.

[93] Ms. Howie testified that terms imposed on dangerous offenders could include monitoring relationships or contacts. The parole officer would rely on the offender's self-reporting and may look at the communication devices that the offender is permitted to have. To ensure that the offender is attending programming or counselling or treatment, the parole officer would require the offender to sign a consent to release of information.

[94] A dangerous offender comes into a CCC with conditions for residence and monitoring and supervision. Such conditions are imposed by the PBC. The parole officer for such an offender can make recommendations for additional conditions to be imposed, including no cell phones, no cars, no access to computer and any other condition appropriate to manage the risk posed by the offender.

[95] If appropriate programming is available in another province, the parole officer must make inquiries as to the eligibility of the offender and assist in the offender accessing such programming.

Suspension

[96] A conditional release or a long-term supervision order can be suspended for 3 reasons, when a breach has occurred, to prevent a breach of conditions or to protect society.

[97] For a determinate sentence offender on an LTSO, CSC can cancel the warrant of suspension, recommend that the PBC add additional terms or recommend that PBC lay criminal information. CSC must make its decision within 30 days. PBC must make its decision within 90 days.

Cross-examination

[98] The correctional plan can be modified during the course of the offender's sentence, if necessary, to better work towards the offender’s rehabilitation and successful reintegration back into society, which is the goal.

[99] One of the 6 strategic priorities identified by CSC to fulfill its public safety mandate is effective and culturally appropriate interventions for First Nations offenders.

[100] CSC recognizes that the effects of institutionalization resulting from long periods of incarceration must be considered.

[101] CSC recognizes that First Nations offenders face challenges such as systemic hurdles and racism that are not faced by other offenders.

[102] CSC recognizes that there are a group of Aboriginal offenders who were not originally aware of the fact of their cultural heritage as First Nations people.

[103] The witness acknowledged the importance of programming, including the spirituality element for First Nations offenders in addition to the conventional programming provided. A self-identified Aboriginal offender has the right to culturally appropriate programming and the parole officer assigned has the obligation to provide such programming to such an offender. This will increase the potential for success in the rehabilitation and reintegration of such an offender. The witness agrees that even if such an offender was not exposed to cultural heritage as a child such an offender could benefit from such culturally appropriate programming as an incarcerated adult.

[104] As indicated in Exhibit 7, the parole officer will incorporate healing components into the correctional plan in consultation with the elder/spiritual advisor and Aboriginal liaison officer.

[105] It is important that an offender know about the existence of the Aboriginal liaison officer. If an offender self identifies as an Aboriginal he should be informed about the Aboriginal liaison officer and the elder /spiritual advisor and that information should be documented into the correctional plan.

[106] The Aboriginal integrated correctional program model is a stream of correctional programming designed to meet the unique needs of Aboriginal offenders. It is offered at Joyceville Institution locally and includes a sex offender stream. It is offered at most federal penitentiary sites.

[107] The assessment for decision for release must include consideration of the offender's Aboriginal social history, including a number of listed factors, which include family or community history of victimization.

[108] Exhibit 7 documents that the offender’s reintegration potential consideration is different for non-Aboriginal offenders compared to Aboriginal offenders. This is because these are actuarial tools, and one such tool has not been validated for Aboriginals.

3. John Bailey

[109] Mr. Bailey was Mr. Bourdon’s parole supervisor at PCCC, now called Henry Trail, for a 6 week period commencing August 15, 2006. Mr. Bourdon was serving a sentence under the LTSO at the time, which had special conditions, including the residency requirement at PCCC. The relevant special conditions were: 1. disclose any and all contact to your parole supervisor regarding females with whom you associate or attempt to associate; and 2. Possession of a cellular telephone will be permitted… Providing it is used with a plan that provides detailed monthly billing in order that your parole officer can monitor your calls.

[110] He authored the A4D, Ex. 4, Tab 12, dated October 17, 2006, locked October 18, 2006. This report was required as a result of the suspension of Mr. Bourdon's LTSO for suspected breaches of the 2 special conditions set out above. He recommended the laying of a Criminal Code information in respect of the 2 breaches. The breach of special condition 1, led to the conviction and sentence of Justice Belch.

[111] The A4D recites that Mr. Bourdon had been serving a sentence which commenced June 18, 2004.

[112] Mr. Bailey's contact began while Mr. Bourdon was serving the LTSO imposed by Justice Rivard, with an end date of November 7, 2012.

[113] Mr. Bourdon’s level of risk management at that time was at the highest and required a minimum of 4 contacts per month. Mr. Bourdon had had 4 prior suspensions of his LTSO, but these did not result in criminal charges.

[114] His access to the community was restricted, initially with no access, unless escorted by staff. This was increased on September 5, 2006, to one-hour access to the community in the morning and one-hour in the afternoon, plus attending at Options for Change and with Dr. Eccles for sex offender treatment.

[115] On September 22, 2006, he obtained his driver's license.

[116] He was authorized to travel alone in his own car to North Bay on September 25, 2006 to meet with his lawyer. Mr. Bailey gave him strict instructions to follow for the trip, including checking in with North Bay police upon arrival and at the time of departure.

[117] Initially, Mr. Bailey had no concerns about this 1 day trip. On September 26, 2006, Mr. Bailey spoke with Mr. Bourdon about the trip and also discussed the trip with Mr. Bourdon's parents, who live in North Bay. Those talks gave rise to no concerns about the trip on the part of Mr. Bailey.

[118] Mr. Bailey also spoke to Mr. Bourdon about his cell phone. Mr. Bourdon had not provided detailed billing records, as required by the special condition of his LTSO. Mr. Bailey had previously told him to keep a log of his calls. Mr. Bourdon had purported to do that. But Mr. Bailey found such records incomplete. Mr. Bourdon told him that he had had contact with a female named Amanda about a court case he was involved in. This was the first time Mr. Bailey had learned of this.

[119] On September 11, 2006, Mr. Bourdon had reported to him that another offender had used his cell phone to contact the female named Amanda. Mr. Bailey told him at that time not to loan his cell phone to other offenders.

[120] When Mr. Bourdon disclosed on September 26, 2006 that he had had a contact with Amanda which he had not reported to Mr. Bailey, Mr. Bailey concluded that there was a breach of that special condition.

[121] Mr. Bourdon’s LTSO was suspended on September 26, 2006 for the breach concerning detailed billing for the cell phone.

[122] Mr. Bailey investigated the contact with Amanda. While waiting for police transport on the suspension, Mr. Bourdon was showing off his car stereo equipment. He was observed to put an item into the fuse box panel and into a gym bag.

[123] A search of the vehicle was authorized which gave rise to items that indicated that Mr. Bourdon had 2 females, ages 17 and 15 years, accompany him on the trip to North Bay. The items included a backpack with female clothing in it and what appeared to be love letters written to a female by Mr. Bourdon. There were also three white pills found in an envelope that bore the markings of Mr. Bourdon's car audio business. Mr. Bourdon had obtained a prescription for OxyContin within three days prior to the North Bay trip.

[124] Mr. Bailey located Amanda Garlick, through her probation officer, and met with them. She told him that the trip to North Bay had been planned for a week. She said that Mr. Bourdon got a hotel room in Kingston for the night before. She said that he checked in to the hotel room with her. Mr. Bailey confirmed this with the hotel manager. She said that Mr. Bourdon picked her up the next day. They travelled to North Bay and to his parents’ house which she was able to describe. She was 17 years of age at the time. Megan, a 15-year-old, travelled with them. He dropped the women off at a mall in North Bay for a short time. The two women stayed at the parents’ home while Mr. Bourdon and his father went to the lawyers. The women stayed in the car when he went to the police station. At his request, she taped a conversation to be used as evidence in his court case. Mr. Bourdon told her what to say. Amanda told him that Mr. Bourdon had given the three white pills to her.

[125] Amanda told Mr. Bailey that she was the girlfriend of another offender at PCCC. Mr. Bourdon contacted her after those two had broken up. They had met at a pool hall.

[126] In that regard, on September 20, 2006, Mr. Bourdon had asked Mr. Bailey if it was a breach for him to go to a pool hall where alcohol was sold. With that information, Mr. Bailey said it was not a breach of a condition, but poor judgment on his part because of the condition he not consume alcohol.

[127] Mr. Bailey said that Mr. Bourdon had never mentioned the name of Megan to him.

[128] Mr. Bourdon had no permission from Mr. Bailey to go to the hotel, which was later identified by Mr. Bailey from a receipt that he found as The Rest Inn.

[129] Defence counsel and Crown counsel agreed that this hearsay information from Amanda was admissible in evidence at this hearing.

[130] Defence counsel and Crown counsel also agreed that what Mr. Bourdon told Mr. Bailey during the post-suspension interview was admissible in evidence at this hearing without the necessity of a voir dire as to voluntariness.

[131] The post-suspension interview took place on October 2, 2006 at QRDC. Mr. Bailey testified that Mr. Bourdon's story was inconsistent and changed quite often. He said that he had met Amanda numerous times and numerous places, but that those meetings were coincidental. Those contacts were not reported to Mr. Bailey. Contrary to the information Mr. Bailey had from Amanda, and from the hotel manager, Mr. Bourdon denied that he checked into the hotel with Amanda. He denied that anyone travelled with him to North Bay. Mr. Bourdon said initially that the letters found by Mr. Bailey were written to another Amanda, but then changed his story to say that he had sent some to Amanda G.. He denied giving her pills.

[132] Mr. Bailey found that Mr. Bourdon story was inconsistent and changing. He told Mr. Bourdon that he was discontinuing the interview for that reason. Mr. Bourdon then wrote out that he had met Amanda and that he had travelled to North Bay with Amanda and Megan. Mr. Bourdon also admitted that although he had signed out of PCCC to go to court or to Staples, he had actually gone to meet with Amanda at her school. That information was confirmed by the school.

[133] Mr. Bailey learned that Mr. Bourdon knew Amanda's normal route between school and the restaurant. He waited along that route for her in his car.

[134] Mr. Bailey testified that Mr. Bourdon did not admit that the two females were at his parents’ home in North Bay. Mr. Bourdon's father told him that no one was with Mr. Bourdon in North Bay.

[135] Mr. Bailey concluded that the parents were not credible for supervision purposes and acted so as to protect their son.

[136] Mr. Bailey concluded that by initiating contact with vulnerable minor females, obtaining a prescription for OxyContin and arranging the opportunity for unmonitored contact, Mr. Bourdon was in the midst of his offence cycle. He found this conduct to be similar to his previous offences.

[137] The conduct discovered by Mr. Bailey is strikingly similar to aspects of the offences for which Mr. Bourdon was convicted by this court.

[138] Mr. Bailey concluded that Mr. Bourdon's risk was not manageable in the community. He recommended 2 further restrictive conditions to Mr. Bourdon’s LTSO, namely, no leave privileges except to attend medical appointments or treatment except as previously approved, no court attendance without a production order, and not to possess the cell phone or other electronic recording or receiving devices.

[139] Mr. Bailey testified that it was by chance that he learned of the contact with the 2 females, arising only because of his concern about the failure to produce detailed cell phone billing records.

[140] Two letters from Dr. Eccles, psychologist, dated September 1, 2006 and September 27, 2006, confirmed that Mr. Bourdon had attended for 2 individual sex offender sessions and was recommended to continue in group sessions. Ex.3, Tab 6 and 7. As a result of the suspension of his LTSO, he did not complete the group sessions.

[141] Mr. Bailey testified that it is critical to managing the offender in the community that the parole officer trust the offender. The parole officer relies on the offender reporting truthfully to the parole officer.

[142] Mr. Bailey testified that to monitor contact with females, the parole officer has to rely on self-reporting by the offender, looking at the offender’s cell phone or at cell phone records. He said it is difficult to monitor whether an offender is complying with a condition to abide by treatment prescribed by a doctor, including taking prescribed medications.

[143] Mr. Bailey did not discuss with Mr. Bourdon any sexual abuse of him as a child or of his siblings or family. He did not know that Mr. Bourdon was sexually abused as a child. Mr. Bailey said that he had reviewed Mr. Bourdon's criminal profile report as part of his parole supervision responsibilities.

[144] Mr. Bailey testified that Mr. Bourdon did not identify as Aboriginal to him.

4. Karen Thomson

[145] Ms. Thomson has been employed by the Parole Board of Canada for 17 years. She is a senior case review officer and currently acts as regional manager of conditional release programs.

[146] Exhibit 8 is her affidavit.

[147] The Board does not have an investigative role. It relies on information provided by CSC and other sources, such as victims.

[148] Dangerous offenders serving determinate sentences with LTSO, are eligible for full parole at 1/3 of their sentence and for day parole 6 months prior to the full parole date. Such offenders have a statutory release date at 2/3 thirds of the sentence. However, such offenders can be held in certain circumstances to warrant expiry date. Eligibility for full parole and day parole are calculated from the date of imposition of sentence.

[149] Dangerous offenders serving indeterminate sentences are eligible for full parole 7 years from the date of arrest. For Mr. Bourdon, this means that he is eligible for full parole on September 25, 2019. Day parole eligibility is 3 years prior to the first full parole eligibility date. There is no statutory release date for such offenders. If such an offender does not get full parole at 7 years from arrest, there is a mandatory review every 2 years thereafter. Such offenders may only be released into the community on either day parole or full parole.

[150] Day parole means authority for the offender to be at large during the day but the conditions will require the offender to return to a CBRF or CCC nightly. Full parole contemplates release into the community with no residency requirement. Supervision in that case is done through the parole office in the community.

[151] The Board has exclusive jurisdiction to determine the appropriate special conditions to be attached to the offender's release on a period of long-term supervision, and for the special conditions to be attached to the release of a dangerous offender serving an indeterminate sentence.

Psychological and Psychiatric reports

[152] The PBC requires a recent psychological report for a dangerous offender serving an indeterminate sentence or if the offender is a high risk sexual offender. A psychological risk assessment is valid for a period of up to two years.

[153] For offenders serving an indeterminate sentence, at the time of their first review for any type of conditional release there must be a recent psychological risk assessment that specifically addresses the requirement for psychiatric risk assessment. For each two-year review, thereafter, there will be an updated psychological report.

[154] A dangerous offender serving a determinate sentence to be followed by a LTSO, is treated the same as any other offender serving a determinate sentence. There is no requirement for psychiatric assessment for such offenders.

[155] When any form of release is considered, the PBC must consider that the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender serving and that the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.

[156] Parole hearings are in person unless the offender waives such a hearing in which case the hearing is a paper review.

[157] The PBC has an obligation to be sure that an offender is not being warehoused and that he or she has been given rehabilitative opportunities.

[158] A dangerous offender serving an indeterminate sentence if released to the community will be supervised for life. If such an offender is on day parole, there will be a paper review every six months. If such an offender is on full parole, the special conditions imposed will continue indefinitely, but the idea is release into the community with the gradual reduction of restrictive conditions.

[159] If a dangerous offender indeterminate breaches a condition, CSC can suspend the release and have the offender arrested. Within the next 30 days, CSC can cancel the suspension or recommend to the PBC revocation of the release. PBC must hold a hearing within 90 days. If the PBC decision is to revoke release and return the offender to custody, then one year later, there will be a full hearing to consider parole and thereafter every two years. The PBC can also decide to cancel the suspension with or without imposing additional special conditions. The situation is the same where although there is no breach, CSC has a concern about increasing risk and a future breach.

[160] If a dangerous offender determinate, LTSO, breaches, PBC may either cancel the suspension with or without imposing additional special conditions or recommend the laying of a Criminal Code information. The PBC cannot maintain the suspension beyond 90 days if there has been no breach, i.e. where there is a fear of increased risk or future breach.

[161] As of March 2018, there were 657 dangerous offenders indeterminate in Canada. Of these 615 remained in jail. Of the 42 released on conditional release, 19 were on day parole and 23 were on full parole.

[162] On average, a dangerous offender indeterminate serves 16.5 years from date of arrest before being granted day parole.

[163] PBC cannot impose a special condition that an offender take specific medication. PBC can only impose a condition that the offender follow the recommendations of the treatment plan prescribed by the doctor. When asked what would occur if a doctor required an offender to take a certain medication and the offender refused, the witness responded that CSC would explore other options, other than a breach charge.

[164] Indigenous persons in Canada represent less than 5% of the Canadian population.

[165] Exhibit 9 is a document prepared by PBC entitled 2016 Corrections and Conditional Release Statistical Overview. The statistics indicate the following. Of all offenders in the federal system 22.7% are indigenous, meaning Inuit, Innu, Métis or North American Indian. Between the years 2011 and 2016 that population has increased by 16.6%. At the end of 2016, the proportion of offenders in custody was 11.1% greater for indigenous offenders than for non-indigenous offenders. Indigenous men in custody represented 25.2% of all men in custody.

[166] Indigenous offenders were more likely to be classified to a medium or maximum security institution compared to non-indigenous offenders. Compared to nonindigenous offenders, a lower percentage of indigenous offenders were classified as minimum-security – 16.1% vs 23.7%.

[167] 25.1% of offenders in custody with a life or indeterminate sentence are indigenous. At the end of 2015 to 2016, 23.4% of the total federal prison population was serving a life or indeterminate sentence. Of these offenders, 66.6% were in custody and 33.4% were in the community under supervision.

[168] It is the Exhibit which uses the term “indigenous”.

[169] 95.8% of dangerous offenders with indeterminate sentences were in custody and 4.2% were in the community under supervision, at the end of 2015 to 2016. 55.6% of the 18 dangerous sexual offenders were in custody.

[170] From 2006 to 2016, the in custody. Indigenous offender population increased by 39.2%, while the total indigenous offender population increased 39.5%. The number of indigenous offenders on community supervision increased 40.3%. Indigenous community population accounted for 17.3% of the total community population in 2015 to 2016.

[171] In 2015 to 2016, total admissions to administrative segregation decreased by 18.4%. 94.4% of the total admissions were men and admissions of indigenous offenders accounted for 30%. A total of 113/434 offenders were indigenous offenders in administrative segregation.

[172] 16.8% of releases for indigenous offenders were on day parole and 0.8% were on full parole compared to 31.9% and 2.9%, respectively, for non-indigenous offenders. Indigenous offenders get day parole and full parole less often than non-indigenous offenders.

[173] Indigenous offenders served more of their sentence before day parole, 37.5% vs 43.7%, and before full parole, 46% vs 50.5%, than nonindigenous.

[174] Indigenous offenders accounted for 33.2% of dangerous offenders and 22.7% of the total offender population.

[175] On average, indigenous offenders do not make parole as early as nonindigenous offenders.

[176] For all dangerous offenders serving indeterminate sentences, the only route to community release is in the discretion of the PBC.

[177] Dangerous offenders serving indeterminate sentences after release into the community can apply for a variation to less restrictive conditions.

5. Sandy Burkitt

[178] Ms. Burkitt is the native liaison officer at QRDC. She self-identifies as Metis.

[179] Her testimony demonstrated insight, knowledge and wisdom in regard to Aboriginal culture and values and treatment for Aboriginal offenders. Her significant experiences in working with Aboriginal offenders enabled her to give informed evidence which was most helpful to this court. Her testimony was given from an objective perspective.

[180] She clarified that the proper terminology is reference to “Aboriginal” rather than “indigenous”, which she views as offensive. Mr. Marsolais-Nahwehgahbow references “indigenous”. Mr. Brant said that he considered himself an Indian. I use the reference “Aboriginal” throughout my reasons. My intent is to be respectful.

[181] Her role includes smudging ceremonies with Aboriginal offenders and counselling, and facilitating Gladue reports by interviewing the offender, completing an Aboriginal social history, including family and community, which includes obtaining information from parents or community or residential schools experience for the offender, or parents. She also helps inmates plan for the return to the community.

[182] She explained that for federal Aboriginal offenders incarcerated at QRDC there are no Aboriginal programs available such as are available in the federal institutions.

[183] It is only since March of 2018 there has been new funding, which allows for an Elder to be available to Aboriginal offenders in QRDC. The Elder assists her with the intake of Aboriginal offenders.

[184] There is also spiritual counselling.

[185] She explained that the smudging program is important to Aboriginal offenders, “their church”. She explained that an Elder is everything to an Aboriginal offender, “like the Pope to Catholics”. An Elder is a spiritual advisor and recognized for wisdom and guidance and is highly respected.

[186] She first met Mr. Bourdon at Warkworth Institution where she worked for 25 years before transferring into the provincial system in 2009. She did not know of him as an Aboriginal offender and he did not identify to her as an Aboriginal offender. She knew him there for his reputation as an inmate who filed meticulous grievances.

[187] She testified that in her experience, particularly at Warkworth Institution, the work of an Elder successfully enhances the inmate's custodial sentence and eventual release to the community.

[188] At Warkworth, there were Aboriginal facilitators and Aboriginal focused cultural programming. For a period of time, she was director of programs.

[189] She testified that she has been working with Mr. Bourdon for at least 4 years at QRDC.

[190] She testified that he self-identified to her as Metis. This was when she first met him at QRDC. This is her only source of that information. He did not self-identify as Aboriginal at Warkworth. He did not talk to her. She was familiar with the Aboriginal programming there, and she had no knowledge that he participated in such programming.

[191] At QRDC, he told her that his information as to being of Metis heritage came through family sources. She did not know when he became aware of this or from which side of the family the lineage comes. She testified that anyone who self identifies must be accepted into Aboriginal programming.

[192] She testified that she spoke to Mr. Bourdon's father, who called her to see how Mr. Bourdon was doing and thank her with respect to the mural project. She did not testify as to any conversation with the father or any other family member concerning Aboriginal background.

[193] She knows that Mr. Bourdon was initially placed in protective custody and he is now held in segregation at his own request. She testified that he belongs in a federal institution and should not have been at QRDC for such a long time. She testified that she knew that it was he who requested that he remain at QRDC. She testified that she suggested to him that he be transferred to a different institution that had Aboriginal programming, but he told her that he wished to remain where he was.

[194] He worked with her last year, July and August 2017, on a mural project reflecting Aboriginal abuse across Canada. The project lasted six months. She and he were the only two Aboriginals involved in the work. She testified that this work brought into focus why he was incarcerated. He accepted responsibility for his criminal record. She testified that he told her that he was sexually abused by an Aboriginal uncle and that he also witnessed his sisters being sexually abused. He wanted to know why he had not received Aboriginal treatment.

[195] She testified that Mr. Bourdon excels in school inside QRDC.

[196] She has done one-on-one counselling with him for the four years. She testified that he has set out on a healing journey. She said it is a long journey for him. He wants one-on-one Aboriginal focused treatment.

[197] She testified that it is difficult to achieve successful sex offender treatment for Aboriginal offenders in a non-Aboriginal group setting. Aboriginals are reluctant to disclose, which is required, out of fear of judgment by the non-Aboriginal group members. Aboriginal offenders are ostracized and bullied by the non-Aboriginal offenders who participate in group sessions. Elders conduct the teaching which addresses the mind, spirit and body and assist offenders coming to understand themselves and why they did what they did. Aboriginal offenders benefit from such Aboriginal focused treatment. It is a holistic approach.

[198] She testified that with this new funding in the last month, Mr. Bourdon has had one to one, one hour, sessions with the Elder, Mr. Winston Brant. Mr. Bourdon told her that he liked this counselling and that he thought that the Elder would put together a treatment plan for him.

[199] She has told Mr. Bourdon that he needs treatment, so that he can understand why he did what he did, how to prevent it from occurring again and to make full disclosure of the sexual abuse that was done to him as a child. The records filed in evidence indicate that the uncle was charged and convicted for these offences. He has apparently died.

[200] Mr. Bourdon explained to her that sex offender treatment in a group does not help him because when the other offenders disclose offences against children, he cannot communicate, he closes up because of his experience with abuse.

[201] Ms. Burkitt testified that she is confident that Mr. Bourdon would complete Aboriginal treatment. They would not judge him. Her experience is that the presence of Elders make such treatment successful. Her meaning of “successful”, is completion of the treatment program.

[202] She testified about the Waseskun Healing Centre, which is remote, north of Montréal and a secured facility. She visited the centre during her work at Warkworth, in 2004 or 2005. Her understanding is that Aboriginal offenders may apply to attend at the centre during the custodial portion of their federal sentence. Elders facilitate applications by Aboriginal offenders.

[203] She has no experience with getting an Aboriginal offender to the centre if that offender is a designated dangerous offender whether on a LTSO or an indeterminate sentence.

[204] She believes that for admission the offender must be serving a fixed determinate sentence. She said that an offender in the community does not have access to the centre. She testified that she believed that an inmate serving a determinate sentence, because he has a release date, would be offered a bed at the centre before an indeterminate offender would be.

[205] When asked to compare the access to programming for offenders serving determinate compared to indeterminate sentences, she said that resources are used for the inmates who have the sooner release dates. It is recognized that completion of the programming required by the correctional plan is a factor affecting parole and release into the community decisions.

[206] Mr. Bourdon has said to her that he realizes that what he has done is wrong. He has not spoken of details of his offences with her. “He'd always ask for native treatment”.

[207] She testified that absolutely he needs Aboriginal sex offender treatment.

[208] She acknowledged that she has no experience with how he will respond to that treatment.

[209] She was not aware that he was able to participate in and almost complete non-Aboriginal programming at OCI.

[210] She agreed that dangerous offenders serving indeterminate sentences would have access to smudging and Elder services in the penitentiary.

[211] Counsel agreed that the testimony by Ms. Burkitt as to what Mr. Bourdon said to her was admissible both for the fact that it was said and for the truth of what was said. It is a matter of what weight the court places on that hearsay type of evidence.

6. Petrina Lemieux

[212] She works for CSC as the regional program manager. Her responsibilities include expertise on the programming available to federal inmates, ensuring the quality of those programs and training program facilitators.

[213] After sentencing by a court, an offender who was classified minimum or medium security is sent to the Joyceville Institution assessment unit. Maximum security inmates are sent to Millhaven assessment unit. Intake assessors determine what type of programming is necessary for the inmate. Risk assessment tools are used, including Static 99 and Stable 2007. Low-risk offenders are not offered correctional programs. Moderate risk offenders are offered the moderate intensity program. Maximum risk offenders are offered high intensity program.

[214] Sex offenders are assessed using the specialized sex offender assessment, which uses the tools identified above, Ex. 7, para. 43. Sex offenders are also referred for a mental health assessment. Elders are part of the initial intake. Each offender is asked if he identifies as Aboriginal.

[215] If an offender on intake identifies as Aboriginal, he is referred to an Elder, who interviews him and documents an Aboriginal social history. That offender is educated with respect to the Aboriginal services available to him at the institution to which he is being sent. Each institution has an Aboriginal Elder and a native liaison officer and Aboriginal focused programming.

[216] Aboriginal offenders can participate in Aboriginal programming while still at the intake institution. The main priority of CSC is to enable Aboriginal offenders to access Aboriginal services.

[217] The intention is that offenders will have their correctional plan identified and be transferred to their assigned institution within 3 months of intake. The offender is assigned to the institution offering the programs identified in his correctional plan. The federal institutions available at this time are Millhaven maximum security and Joyceville, Bath, Warkworth, and Beavercreek – medium security.

[218] It is to be noted that Sandra Burkitt testified that Warkworth Institution has long established, comprehensive Aboriginal focused programming, including consideration of the Waseskun Healing Centre. This institution is somewhat closer to North Bay than, are the Kingston federal penitentiaries.

[219] Exhibit 13 describes the reintegration programs available through CSC for federal inmates. The two week primer program is completed within 3 months at the intake institution.

[220] This timeline applies to indeterminate sentenced dangerous offenders, including Aboriginal.

[221] The primer Aboriginal sex offender program is group therapy with a maximum of 12 offenders, with two facilitators and an Elder 50% of the time.

[222] Ms. Lemieux testified that the sex offender programming in the past is similar to that presently offered and there is constant updating based on current research.

[223] The difference between sex offender and Aboriginal sex offender programs is that the latter contains culturally relevant programming, including an Aboriginal history component. The latter is culturally sensitive to the needs of Aboriginal offenders.

[224] Ms. Lemieux testified that there were wait lists for programming. Priority is given to inmates who are being released sooner than others. The goal is to have inmates into programming before any type of decision with respect to release date. For example, Mr. Bourdon has a full parole eligibility date of September 25, 2019. CSC would attempt to get him into programming, prior to a dangerous offender serving a determinate sentence, followed by a LTSO. There is a possibility that he would get in. She testified that as an institutional manager, it would make no difference whether a dangerous offender was sentenced to a determinate or an indeterminate sentence as far as admission to programming was concerned. What matters is that the programs must be completed before the identified release eligibility date.

[225] As another example, she testified that an Aboriginal sex offender who is a dangerous offender serving a determinate with a LTSO, high risk, would likely get into programming before the same offender serving an indeterminate sentence.

[226] CSC does an annual review of program planning to ensure that all offenders are getting into the required programming.

[227] Page 20 of Exhibit 13 describes the Aboriginal sex offender program model high-intensity for sex offenders.

[228] There is also a motivational module for offenders who are not motivated to participate, or who are having problems staying in the programs or are having difficulty grasping program concepts. This programming is one-on-one sessions for one hour and can be repeated. This programming was introduced because it was recognized that there were offenders having difficulty getting through the programs. It was first implemented in October of 2014.

[229] After the offender completes the Aboriginal sex offender programming, whether he is DO determinate or indeterminate, the correctional program officer reports on the progress achieved. The officer will recommend institutional or community maintenance programming. She testified that typically, up to 300 hours of intervention is required for high risk sex offenders by way of maintenance programs.

[230] The Aboriginal sex offender high-intensity program is not repeated if the offender completes the entire program. If significant deficits are recognized in the high-intensity programming, the recommendation is to do the maintenance program. This consists of 12 sessions in a group setting of 10 to 12 offenders once a week. The maintenance program can be repeated as often as required on the recommendation of the officer delivering the program.

[231] Maintenance programming can be offered in the institution or in the community. However the integrated correctional program model - community program for moderate to high risk offenders released into the community is only provided to those who did not complete correctional programming while in the institution.

[232] Counsel both say in-community inmate programming exists.

[233] She was referred to Ex. 3, Tab 16, which indicated that Mr. Bourdon participated in the community sex offender relapse prevention program with Dr. Simourd. The summary prepared by Dr. Simourd in September 2012 indicated that Mr. Bourdon was participating in completing the program successfully. This is the very same time that he was committing the offences in the summer of 2012, for which he was convicted and is being sentenced. Ms. Lemieux testified that absent knowledge about the offending and arrest on September 25, 2012, CSC would've used Dr. Simourd’s report to consider lessening restrictions in the community, including the residency requirement.

[234] In cross-examination, Ms. Lemieux indicated that since 2009, programming is focused on addressing the offender as a whole person, not dealing with separate issues individually. CSC believes this approach is more likely to succeed. She testified that the new programming model is resulting in offenders being released sooner to the community because the program needs are being delivered earlier.

[235] The point of the cross-examination was to indicate that better programming, offered earlier, focused on Aboriginal cultural needs would give Mr. Bourdon a better opportunity for earlier successful release into the community.

[236] She testified that prior programming also adhered to the principle that recognizes that different people respond to programming differently. She testified that the motivational module helps the offenders succeed in their programming, particularly because of the one-on-one sessions.

[237] She confirmed that CSC recognizes that programming is more likely to succeed for Aboriginal offenders if it is culturally relevant and sensitive.

7. Dr. Jonathan Gray

[238] Based upon his oral testimony as to his qualifications and experience, his CV filed as an Exhibit 14, and the agreement of the Defence, Dr. Gray was accepted by the court as an expert witness in the field of assessment, diagnosis and treatment of mental and psychiatric conditions and risk assessment of criminal offenders.

[239] Exhibit 15 is Dr. Gray's report dated May 5, 2017.

[240] In his report and in his oral testimony, Dr. Gray demonstrated a thorough knowledge and understanding of Mr. Bourdon's background, criminal offences and previous programming and treatment. He had reviewed the documents filed as evidence on this hearing, including Ex. 13, CSC programming, and the Gladue report.

[241] No other expert psychiatric witness was called to testify in this case.

Summary of Substantive Opinion

Opinion as to Dangerous Offender

[242] Dr. Gray is of the opinion that Mr. Bourdon meets the criteria for a dangerous offender as set out in the Criminal Code sections S. 753(1)(a)(i) and (ii), and s. 753(1)(b).

[243] Mr. Bourdon through his counsel accepted that opinion without challenge.

[244] In this regard, Dr. Gray noted that there is a pattern to Mr. Bourdon's offending, which includes preplanning and using stupefying substances on non-consenting females or using elaborate deception on vulnerable targeted females in order to facilitate sex acts with them, with the appearance of consent.

[245] Despite knowing the impact that his offending had on his victims, resulting in his convictions in 2004, Mr. Bourdon continued to act in a similar manner with the index offences. Rather than express remorse for his actions, he blames the victim and his parole supervisor for his actions.

[246] Dr. Gray noted that it is evident that Mr. Bourdon's offending is a failure to control his sexual impulses by his own choice. Mr. Bourdon uses careful planning to satisfy his sexual desires on victims he knows to be unwilling, MB and EC, most recently. Both young women made it expressly clear to Mr. Bourdon that they were in no way interested in a sexual relationship with him.

[247] Dr. Gray noted that the index offences occurred while Mr. Bourdon was closely monitored by a parole supervisor, was by law required to comply with strict conditions and knew that carrying out his plan could result in re-incarceration. Dr. Gray concluded that this is evidence that the prospect of long-term incarceration is not enough to cause Mr. Bourdon to control his sexual impulses.

[248] He concluded that Mr. Bourdon's pattern of gaining sexual advantage over unwilling partners through chemical restraint and verbal deception, would likely cause psychological pain to his victims.

Opinion as to whether there is a reasonable possibility of eventual control of Mr. Bourdon's risk in the community

[249] Dr. Gray considered this issue under 2 broad categories, his record of supervision and his response to and attitude towards treatment.

Record of supervision

[250] Dr. Gray identified 7 breaches recorded while Mr. Bourdon was serving his long-term supervision order, including the index offences.

[251] He observed that even very strict monitoring of the conditions of the LTSO, including participation in the treatment program in which he was reportedly doing well, failed to detect or prevent the developing relationship between Mr. Bourdon and MB and EC, which led to sexual activity.

[252] He concluded that it would be difficult to find any effective conditions of release into the community that would contain Mr. Bourdon's risk to the community in the future.

Response to and attitude towards treatment

[253] Dr. Gray reviewed the various treatment programs that Mr. Bourdon had participated in prior to and during the index offences, and his performance as reported in those programs.

[254] It is his opinion that Mr. Bourdon's offences are part of a pattern of opportunistic offending in order to satisfy his sexual desires, which do not stem from impulsivity, but rather from deliberate planning to achieve the end result.

[255] Despite Dr. Simourd’s report in September 2012 that Mr. Bourdon was doing well and that his risk for future criminality had improved slightly to the moderate range based on his progress in Mr. Bourdon's preferred modality of individual therapy, Mr. Bourdon was, at the same time, engaging in and executing his scheme to commit the index sexual offences.

[256] Dr. Gray noted reports that included identifying Mr. Bourdon's inconsistent, superficial motivation for treatment, his denial of any sexual disorders, his offending that led to not completing treatment, his resistance to group therapy and his self-termination of the prescribed Lupron medication.

[257] Dr. Gray noted that Mr. Bourdon's character traits as identified in the PCL-R, including pathological lying, manipulative behaviour, lack of remorse or guilt, minimizing his responsibility and blaming others for his offending, callous/lack of empathy, poor behavioural controls, impact negatively on his ability to fully and sincerely commit to change through treatment.

[258] It was Dr. Gray's opinion that there could be no reasonable expectation that a lesser measure, determinate sentence or determinate sentence, followed by LTSO, rather than an indeterminate sentence, would adequately protect the public against the commission in the future by Mr. Bourdon of a serious personal injury offence.

Detailed facts and opinion from the testimony of Dr. Gray

Mr. Bourdon does not Accept Responsibility/Blames Victims, Peers, and Parole Officers

[259] Dr. Gray reported that Mr. Bourdon was not candid in his discussions concerning the events on August 5 and August 30, 2012 with MB that resulted in conviction for sexual assault.

[260] Mr. Bourdon blamed the victim, other offenders at PCCC and his parole officer for him committing the index offences.

[261] Dr. Gray observed that there was no true, genuine acceptance by Mr. Bourdon of responsibility for committing the index offences.

[262] Dr. Gray testified that this would impact negatively on future treatment because proper treatment would require him to admit the facts of his offences and the thinking on his part that led up to them.

[263] It was Dr. Gray's opinion that the evidence indicates there is a pattern on the part of Mr. Bourdon of not accepting responsibility for his crimes, i.e. he blamed his parole officer for the 2011 breach; he blamed other people for sending pornography discovered in his possession; he blamed the 17-year-old female, in part, in regard to the North Bay trip; he blamed MB for trying to extort money from him.

[264] Dr. Gray observed that despite the treatment that he has had including some successful group therapy and one-on-one therapy with Dr. Simourd, his preferred mode of treatment, Mr. Bourdon still denies or minimizes his responsibility for his offences and blames others.

Pattern to Offences

[265] Dr. Gray observed that Mr. Bourdon's sexual offending falls into a pattern of creating a situation to satisfy his sexual desires where it appears that the victim consented. He does not resort to overcoming physical resistance.

Aboriginal heritage

[266] Mr. Bourdon told Dr. Gray that he found out he had native ancestry in 2011. Mr. Bourdon said that he never knew growing up that he had any native ancestry and it was never part of his life until 2011. Dr. Gray said that he did not have clear information on Mr. Bourdon's Aboriginal history, either through Mr. Bourdon or his parents.

Past Psychiatric or Psychological opinion and Treatment

[267] Dr. Glancy, psychiatrist, assessed Mr. Bourdon for the purposes of the 2004 long-term offender hearing. Dr. Gray agrees with Dr. Glancy’s opinion that Mr. Bourdon's motivation for treatment appeared inconsistent. Since Mr. Bourdon denied any sexual disorders, he did not express a motivation for treatment for such. Mr. Bourdon's attitude that he will do whatever it takes to gain his freedom and return to the community represents a superficial type of motivation which may be hard to sustain in the long term. Dr. Glancy concluded that Mr. Bourdon presented a substantial risk of re-offence.

[268] Dr. Gray noted that Mr. Bourdon demonstrates initial enthusiasm for treatment which wanes (as in the case of prescribed Lupron), or his treatment is interrupted due to breaches and is unable to be continued.

[269] Justice Rivard, in sentencing Mr. Bourdon in June of 2004, recommended that he served his sentence at OCI so that he could receive cognitive behavioural treatment. OCI reported that he was found with a lingerie flyer in his room and that he continued to lay blame on the victims of his crimes, taking little or no responsibility for his actions. Mr. Bourdon told Dr. Gray that in group sessions he could not listen to other offenders talking about what they had done to children. He said he minimized his offences because they talked about what they had done to children. He said it was hard to be in a sex offender group program involving sexual offences against children because it triggered him, given his background of childhood abuse. Dr. Gray pointed out that Mr. Bourdon had participated successfully to some extent in a group treatment program with Dr. Eccles.

[270] Dr. Gray noted that Dr. Simourd provided psychological counselling for a total of 15 one-on-one 1-hour sessions between November 2011 and August 2012, on an approximate biweekly basis. This was a community sex offender relapse prevention program. Dr. Simourd reported on September 6, 2012 that Mr. Bourdon had managed himself positively and in a manner that was quite different than his previous conditional releases, which included breaches; that he had been involved in positive work and had reasonable social activities; that he had developed a more positive outlook on his life and had improved his ability to accept responsibility for himself and engage in less denial/minimization; that he had made appropriate use of his community access; that he had shown the most positive behaviour than at any point previously during this year. Dr. Simourd was of the opinion that Mr. Bourdon's risk for future difficulties remained at a moderate range but that that was an improvement from previously. Dr. Gray noted that it was during this very timeframe that Mr. Bourdon was engaged on a daily basis in his scheme to have sexual relationships with MB and EC involving the use of alcohol and drugs and fabrication.

[271] Dr. Gray testified that Mr. Bourdon told him that he was open to anything in terms of treatment. However, he said he did not want to be involved in a group sex offender program that would include sexual offenders against children. He said he was open to another course of Lupron, although he had stopped taking it when prescribed previously because he thought it exacerbated the pain in his knees and wrists. He said he was not troubled by the fact that Lupron would impair his sexual functioning and sexual drive because there was more than sex to relationships, he just didn't want to be alone.

Growing up, and Parental Support

[272] Mr. Bourdon grew up in a household of two parents and two sisters in North Bay. He was slow in school. He had a spotty work history.

[273] Dr. Gray considered that his parents were loving and supportive, and would do whatever they could to make him happy. The parents had guilt over the child abuse committed by an uncle. So it appeared to Dr. Gray that they overprotected Mr. Bourdon and downplayed and minimized his offences. They too blame the system.

[274] Dr. Gray testified that Mr. Bourdon is very manipulative, so he plays on his parents’ guilt, portraying himself to be the victim of the system.

[275] His parents indicated that they hope their son could be released to a facility closer to where they live such as the North Bay psychiatric hospital. Dr. Gray testified that he was aware of the facility and that it would not take offenders in Mr. Bourdon's circumstances. It is a provincial facility that holds patients who are under the jurisdiction of the ORB, having been found not fit for trial or NCR.

[276] Dr. Gray spoke to Mr. Bourdon's former spouse, Stacey Degagne. They got pregnant and married at a young age. The relationship lasted 4 years. He had a bad temper and there were incidents of violence. Their daughter does not want a relationship with her father. She described Mr. Bourdon is a “pathological liar” and that there was always a hidden motive to his actions. She described some deviant sexual behaviour on the part of Mr. Bourdon. She confirmed that his parents often covered up for him.

Mental status examination

[277] Mr. Bourdon's consistent theme is that he is the victim of circumstances outside of his control and that the correctional system is unfair and that his negative relationships with parole officers are their fault, not his. Therefore treatment cannot succeed in assisting Mr. Bourdon in changing his ideas and actions. Dr. Gray testified that this theme has been consistent and enduring over many years.

Childhood Sexual Abuse

[278] Mr. Bourdon was raped by his maternal uncle on 3 occasions at the age of 6. He told Dr. Gray that the attack was so severe that he required surgery to repair damage. He reported that his uncle also forced him to watch him sexually abuse his sister. The uncle was ultimately convicted and served time in prison. Mr. Bourdon also reported to Dr. Gray that he was sexually abused by an older female teacher when he was 14 years of age.

Biochemical testing

[279] This indicated that prescribed Lupron treatment could be successful if committed to by Mr. Bourdon. His offences are triggered by interest in sex and are not for the purpose of exercising pure violence.

Self-reported psychological questionnaires

[280] Dr. Gray conducted 4 such self-reporting questionnaires with Mr. Bourdon. There was no indication of anger or aggression. There was some suggestion of problems with substance abuse.

[281] Mr. Bourdon's responses give an indication that he is much more impulsive than the average person. Dr. Gray disagrees because his offending demonstrates careful planning, targeting a victim, creating the relationship, and then creating the situation to satisfy his sexual desires with the appearance of consent of the otherwise unwilling victim. Dr. Gray says there is no impulsivity factor in his offending. This could lead to observations during supervision of antecedents leading up to his offence cycle. However, the background facts indicate that such necessary supervision cannot be achieved because his schemes deliberately hide his relationships from his supervisors.

[282] In answering one of the questionnaires, Mr. Bourdon was not trying to portray himself in an overly positive light. He indicated he was aware of his character deficiencies and did not exaggerate them.

PTSD

[283] Dr. Gray testified that Mr. Bourdon reported symptoms that would technically meet criteria for a diagnosis of PTSD, which could arise from his childhood sexual abuse. However, Dr. Gray testified that there were several reasons to question such a diagnosis and ongoing symptoms. It is his opinion that he is not sure that PTSD was one of the main factors in Mr. Bourdon's offending.

[284] He testified that the Gladue report that, “Rene displays symptoms that meet the criteria for a diagnosis of PTSD” (top p. 15), is a reference to his report that does not accurately reflect the entirety of Dr. Gray's opinion.

[285] Dr. Gray noted that Dr. Epelbaum, psychiatrist, and Dr. Glancy, despite knowing about the childhood abuse, do not diagnose PTSD.

Mood disorders

[286] Dr. Gray said there was a possibility of mood disorder in the depressive category such as major depression or persistent depressive disorder. However, he was of the opinion that such a diagnosis would be very difficult to confirm because of Mr. Bourdon's incarceration. He had the concern of Mr. Bourdon being motivated to report symptoms to suggest that he needs therapy rather than confinement. While he would not rule out the presence of a mood disorder, he could not say with certainty that Mr. Bourdon suffered from one in the past.

[287] While Dr. Glancy diagnosed a persistent depressive disorder, 2004, Dr. Dickey, 2005, and Dr. Epelbaum, 2009, did not.

[288] Mr. Bourdon's great efforts to forge relationships with others and his motivation to be active in the community during the relatively short periods of time he has been on release are inconsistent with depression.

Substance use disorders

[289] Mr. Bourdon had been in jail since September 25, 2012 and there has been a sustained remission of any substance abuse while in that controlled environment.

[290] Dr. Gray testified that he did not believe the offences were directly linked to substance abuse. The offences were planned out over a period of time during which he would not be under the influence of substances such as drugs or alcohol. He supplies drugs to his unwilling victims to create scenarios that appear to be consensual situations. That is part of his scheme.

[291] He was of the opinion that it would be remote that successful treatment for substance abuse would be effective against his reoffending.

Personality disorders

[292] Dr. Gray testified that there was insufficient evidence to make a diagnosis that Mr. Bourdon was suffering from a personality disorder.

Sexual diagnoses

[293] He does not have a voyeuristic disorder. He does not have a sexual sadism disorder. His pattern of sexual offences is not due to the presence of a discrete paraphilia disorder.

[294] Rather, his conduct in the past sexual offending was opportunistic in order to satisfy his perceived need for sexual contact.

[295] He identifies a female with whom he wishes to have sexual relations and then he creates the situation that will permit that to occur and cause it to appear as consensual: MB, first occasion, drug unconscious, groped; MB, second occasion, conscious and agreed because she was deceived by the fabricated scenario he created and convinced her of.

[296] The problem with Mr. Bourdon is his inability to self-regulate his sexual desires.

[297] One goal of treating such an offender is to have him focus on empathizing with his victim. He heard in court from the 3 victims in 2004 and from MB in the present trial about the severe psychological trauma that his actions caused them. He showed little empathy for his earlier victims, in fact denying responsibility despite guilty pleas, and he shows none for MB and indeed blames her for being a prostitute and trying to extort more money from him.

Risk assessment

[298] Dr. Gray used 2 recognized actuarial tools, Static-99R and the VRAG-R, to assess the risk of Mr. Bourdon reoffending. The results do not mean that the offender has the identified risk, but rather that he has the same scores as a group of offenders who have demonstrated an identified risk. These tools assess static factors.

[299] Both tools have been validated as appropriate for consideration of Aboriginal offenders.

[300] In the Static-99R, Mr. Bourdon scored in the higher end of the third level of five ascending risk categories for sexual or violent re-offence at an average relative risk.

[301] In the VRAG-R, he scored a very high risk of re-offence, 8 out of 9 being the highest risk.

[302] Both of these tools suggest that Mr. Bourdon is above average for risk of reoffending.

[303] Dr. Gray also used the PCL-R, which considers the offender’s interpersonal, affective and antisocial lifestyle factors. This also has been validated for Aboriginal offenders. The scores for the identified factors are set out in Appendix A to the report, together with Dr. Gray’s reasoning. Mr. Bourdon’s scores demonstrate a higher risk to reoffend and a poor response to treatment. Dr. Gray recognizes that his score is higher than the scoring of Dr. Glancy in 2004, but offers a persuasive explanation as to why that is.

Opinion that Mr. Bourdon meets the criteria of dangerous offender

[304] The Defence accepts the opinion of Dr. Gray that the court should be satisfied that Mr. Bourdon meets the criteria set out under ss. 753(1)(a)(i) and (ii) and s. 753(1)(b) and that the court shall find Mr. Bourdon to be a dangerous offender.

[305] Included in his reasoning for his opinion, Dr. Gray makes reference to the elaborate deception used to cause MB to submit to his sexual desires, the severe psychological damage caused to his previous victims and to MB, his lack of remorse, his blaming MB and the parole officer, the careful planning that Mr. Bourdon puts into his offending, the fact that he was closely monitored yet able to reoffend, and the fact that he knew that reoffending had a high risk of long-term re-incarceration, yet he proceeded with his plan.

[306] Dr. Gray noted that given Mr. Bourdon's repeated pattern of gaining sexual advantage over unwilling partners through chemical restraint and verbal deception, his actions would likely cause psychological pain to his victims.

[307] Dr. Gray noted that with respect to the index offences, Mr. Bourdon demonstrated worse than indifference, he stated that he wanted to hurt MB emotionally.

[308] With respect to his opinion regarding s. 753(1)(b), Dr. Gray observed that Mr. Bourdon demonstrated a pattern of behaviour that was not identifiable as any paraphilia. Mr. Bourdon demonstrated an opportunistic pattern to satisfy his sexual urges. He did not care about the impact on his victims. He was prone to manipulate people and use deception to cover up his offending.

[309] The PCL-R scores identify the personal characteristics of Mr. Bourdon that drive his risk of reoffending, including pathological lying, conning/manipulative, lack of remorse or guilt, as Justice Rivard said in 2004 when imposing the LTSO, “a dishonest manipulating and self-serving individual concerned only with his plight”, poor behavioural controls, and promiscuous sexual behaviour, among others.

[310] Dr. Gray was of the opinion that Mr. Bourdon demonstrated a substantial risk to reoffend and low prospects to treat successfully.

[311] Mr. Bourdon has demonstrated that he is persistent through time and resistant to change. His criminal behaviour is continuing and enduring.

[312] Consideration of dynamic factors lead to the conclusion that Mr. Bourdon is a high risk to reoffend: past treatment has not been successful, he has little insight and his personal traits considered in the PCL-R. Dynamic factors can change over time, but Mr. Bourdon’s have not. Other such factors include the opinion of probation officers that he can't be supervised appropriately, Bailey and Grey, as he has demonstrated, inadequate supports in the community, his parents protect and enable him, and poor record of employment.

[313] Dr. Gray agrees with the previous opinion of Dr. Glancy that, the denial and minimization on the part of Mr. Bourdon will make it very hard to work with him in cognitive behavioural therapy.

Is there a reasonable possibility of eventual control of Mr. Bourdon’s risk in the community?

[314] Dr. Gray's analysis and opinion under this heading addresses s. 753(4.1).

[315] Lupron treatment has been prescribed and not followed by Mr. Bourdon. Dr. Hucker prescribed the medication in 2008. Mr. Bourdon has agreed to 2 injections only since then. Exhibit 17 documents his refusals while incarcerated. He told Dr. Gray that this medication exacerbated his pain.

[316] Defence counsel proffered Exhibit 16 purporting to be a request by Mr. Bourdon to see a psychiatrist at QRDC for the prescription of Lupron. I wholly reject this document as being a valid submitted request for such treatment. In view of the evidence of Dr. Gray that he is familiar with such documents, and that this document is the original with fresh writing, that is still in the possession of Mr. Bourdon, I find that Exhibit 16 has no evidentiary weight whatsoever.

[317] Dr. Gray identified that such medication cannot be forced on an inmate. It requires the inmate's consent to the continuing prescribed treatment.

[318] Dr. Gray considered the issue of possible control of the risk posed by Mr. Bourdon under 2 headings: 1. record of supervision; and 2. response to and attitude towards treatment.

Record of Supervision

[319] With respect to record of supervision, Dr. Gray identified the 7 breaches of the conditions of his LTSO while under supervision from 2005 to 2012. He noted that Mr. Bourdon was subject to very strict monitoring conditions, including reporting relationships and monitoring cell phone use and participating in what Dr. Simourd considered to be successful treatment, at the time of the very serious index offences committed in 2012.

[320] He concludes that there is difficulty in finding any effective conditions of release to contain Mr. Bourdon's risk to the community in the future.

[321] Dr. Gray could offer no additional conditions that would effectively manage risk. Dr. Gray offers suggested conditions at the end of his report but he has no confidence that they would work. He said it is absolutely essential that female relationships be closely monitored.

[322] He was of the opinion that Mr. Bourdon's attitude to supervision would not change.

[323] He was of the opinion that Mr. Bourdon's breaches were not simply instances of failure to comply with conditions, but rather part of a scheme planned out by Mr. Bourdon to satisfy his sexual desires, despite the conditions imposed upon him.

[324] Any question of burnout of sexual desire would arise after age 60, but Mr. Bourdon's offences do not require the use of physical force and, therefore, that possibility is less of a factor in controlling risk. Mr. Bourdon is presently 40 years of age, actually 41 as of today.

Response to and attitude towards treatment

[325] With respect to Mr. Bourdon's response to and attitude towards treatment, Dr. Gray noted that Mr. Bourdon has refused for his own reasons, the prescription for Lupron, and he engaged in an elaborate plan enacted and executed over a period of time while he was participating in one-on-one therapy, his preferred mode of therapy, with Dr. Simourd in 2012. Dr. Simourd’s treatment was a holistic approach. There was no success in reducing Mr. Bourdon’s risk of reoffending achieved in this treatment.

[326] He also had had some success in group with Dr. Eccles in 2006. Again, no success was achieved in the long-term.

[327] Dr. Gray is of the opinion that there is no type of programming that is likely to achieve success in reducing Mr. Bourdon's risk to the public upon release to the community.

[328] Dr. Gray was of the opinion that the Aboriginal focused programming now offered by CSC would not lead to successfully reducing Mr. Bourdon's risk. Dr. Gray was of the view that such programming would not address Mr. Bourdon's circumstances and that Mr. Bourdon would find himself with little in common with other group members, thus limiting his participation.

[329] Dr. Gray is of the view that Mr. Bourdon's approach to treatment is that his attitude is that he has had treatment and therefore the authorities can no longer deprive him of his rights.

[330] Dr. Gray points to the Sacred Story, Ex. 18, p.21, where the author is of the opinion that previous programming failed “through no fault of René's”, and living in a halfway house set him up for failure. The report is also critical of the long-term segregation of Mr. Bourdon. Dr. Gray points out that these are further examples of blaming others and ignoring the fact that Mr. Bourdon chose long-term segregation and declined Sandy Burkitt’s offer to be placed in another institution.

[331] Dr. Gray was of the opinion that Mr. Bourdon's demonstrated response to and attitude toward treatment leads to the conclusion that there is no treatment that could successfully contain his risk to the public.

[332] This remained his opinion, having considered the CSC programming available, Ex. 13, and the Sacred Story prepared for the court, Ex. 18. Those materials do not demonstrate steps that Dr. Gray believes would reduce the risk to the public.

[333] Substance abuse is not the problem. Prescribing medications such as Lupron cannot be effective in the absence of continuing consent on the part of Mr. Bourdon. This has not been demonstrated, in fact, Mr. Bourdon has demonstrated that he will not comply with such prescribed medication.

[334] Dr. Gray was of the opinion that it could be possible that Mr. Bourdon could perform safely in the community if it was guaranteed that he took Lupron. However, this optimism is negatively impacted by Mr. Bourdon's statement that he doesn't care about sex he just wants to be in a relationship. His actions in 2012 and indeed in 2004 demonstrate clearly that this is untrue and, therefore, cast doubt on any hope for commitment to Lupron.

[335] Dr. Gray supported his conclusions by pointing out that Mr. Bourdon's personal traits as identified in the PCL-R, which influences offending, are enduring and very hard to treat to effect change. Aboriginal programming cannot affect those traits.

[336] It is Dr. Gray's opinion that the fact that Mr. Bourdon had been the victim of sexual abuse as a child, even if it was confirmed that he had the symptoms of PTSD, had no clear nexus to his offending as an adult.

Cross-examination

[337] Dr. Gray pointed out that the new CSC programming as described in Ex. 13, is group programming up to 12 participants and accepts non-indigenous offenders who follow indigenous cultural traditions in the Aboriginal Integrated Correctional Program - High-Intensity Sex Offender Program.

[338] He agrees that successful therapeutic programming recognizes the offender's background culture and values. Such factors affect the offender’s responsivity to the program. Some offenders may be more receptive and more responsive in a smaller group. He has experience with offenders who are not motivated to participate, have problems staying in correctional programs and difficulties grasping program concepts. He agrees that some offenders may benefit from one-on-one additional support. He agrees that group therapy can be difficult for these reasons.

[339] He agrees that group sex offender treatment is not easy to go through. It requires the offender to disclose his offences and to confront his own personal issues in a group. He agrees that there must be a relationship of trust between the facilitator of the program and the offender. It is necessary for the offender to be full and frank and honest in his disclosure to the facilitator.

[340] He agrees that an offender may find it difficult to disclose in a group that he has been the victim of childhood sex abuse.

Defence counsel led Dr. Gray through Ex. 3, Prior psychological/psychiatric program reports

[341] This evidence is reviewed below under Past Treatment.

Further cross-examination

[342] The only institutional programming that Mr. Bourdon came close to completing was OCI, where Justice Rivard had recommended he be incarcerated.

[343] The other treatment programming was done while he was in the community residing at halfway houses.

[344] Dr. Gray agreed treatment programs for sexual offenders have evolved over the last 10 years, and that the current CSC programming providing 225 hours was far more than previously made available to offenders. He supported Dr. Simourd’s holistic approach.

[345] Dr. Gray testified that he had considered the recommendations contained in the Sacred Story for Mr. Bourdon. It is his opinion that Aboriginal focused treatment programming would not be an important factor for Mr. Bourdon because Mr. Bourdon had not been exposed to such factors as racism, the effects of colonialism and intergenerational trauma or adoption out of his Aboriginal culture while growing up.

[346] Dr. Gray testified that from a psychiatric perspective, Mr. Bourdon, has not lost his cultural identity as Aboriginal. He never had it. To treat his offending requires consideration of what culture he grew up in.

[347] He agreed that if Mr. Bourdon successfully completed the Aboriginal integrated correctional program model - high intensity sex offender program, it was “possible” that that could impact his risk assessment. But he observed the apparent success reported by Dr. Simourd, one-on-one counselling, running alongside Mr. Bourdon's planning and execution of the index offences.

[348] It was Dr. Gray's opinion that even if Mr. Bourdon successfully completed the CSC high-intensity Aboriginal focused sex offender programming, there could be no assurance of future non-offending because Mr. Bourdon will be subject to the same conditions of release to the community and he has demonstrated an unwillingness or inability to comply.

[349] During his one-hour telephone conversation with Mr. Bourdon’s parents, there was a vague or no connection to Aboriginal culture disclosed.

Ex. A ( 16 )

[350] As I have mentioned, Defence counsel produced a request form headed QRDC and asked Dr. Gray if he knew what the form was. He testified that he was familiar with the form and that what he had been handed was the original. He said that this demonstrated that Mr. Bourdon still had the original in his possession. It had fresh writing on it.

[351] The document purported to be dated January 30, 2015, indicating Mr. Bourdon requesting to see Dr. Scott for a prescription of Lupron.

[352] In view of the evidence concerning this form, that being from Dr. Gray only, no evidentiary weight whatsoever can be attached to this document.

Ex. 17

[353] This is a series of documents admitted on consent, during re-examination, indicating that Mr. Bourdon refused Lupron treatment at QRDC on November 20, 2012, on January 10, 2013. There is a note of an injection October 17, 2012. There is no record that he ever returned to Lupron since that time.

[354] Dr. Gray has no confidence that if prescribed to him, that Mr. Bourdon would remain on Lupron.

Re-examination

[355] Dr. Gray repeated that he does not think that substance abuse is linked to Mr. Bourdon's offending. He plans his crimes while he is not under the influence of substances.

8. Mark Marsolais-Nahwehgahbow

[356] Mr. Marsolais-Nahwehgahbow is one of the authors of the Sacred Story for Mr. Bourdon, Ex. 18.

[357] The report was ordered by the court when it received information from Mr. Bourdon’s counsel that he self-identified as Aboriginal.

[358] The report is not dated, but indicates that Mr. Bourdon was interviewed in person on April 18, 2017 and that his parents were interviewed by telephone on February 7, 2018.

[359] The report does not identify that 2 writers authored different sections of the Sacred Story. There is no information in the report as to the writers’ backgrounds and experiences. R. v. Lawson 2012 BCCA 508, paras. 28-32.

[360] Mr. Marsolais-Nahwehgahbow testified not as an expert witness, but based upon his knowledge and experience. He explained that he conducted the interview of Mr. Bourdon, which is summarized in the report, and that he wrote the recommendations found in the report and which were replaced by the single recommendation contained in Ex. 19. He testified that Ms. Niman authored the balance of the report.

[361] He testified that he is of Aboriginal descent. He has been involved with Aboriginal offenders for 25 years and has written over 200 reports across Canada. He testified that he is working to create accredited standardized Sacred Story writing for Aboriginal offenders.

[362] He said that the sacred story is intended to explain the offender’s life history and how he got to the justice system. It ties in historical events and how that has impacted the offender’s life.

[363] He testified that an offender qualifies for a Sacred Story report based on self-identifying as an Aboriginal. He testified that it is not for him to say whether the offender has Aboriginal heritage, but they do secondary research, for example, contacting the chief, the band Council or land registry and family or doctor. He testified that Ms. Niman traced Mr. Bourdon's lineage.

[364] He has had experience with offenders who did not discover their Aboriginal ancestry until later in life.

[365] In examination in chief, Defence counsel directed Mr. Marsolais-Nahwehgahbow to a disposition involving a federal prison jail term as the only option to be considered in the case.

[366] Mr. Marsolais-Nahwehgahbow was acquainted with the intake process for federal offenders to determine the offender’s primary institution for serving his sentence.

[367] The source of his information concerning treatment programming for Aboriginal offenders came from his telephone conversation with the CSC manager of programs at Bath institution, in which he learned about the Aboriginal integrated correctional program. He was informed that both Warkworth and Bath had suitable Aboriginal treatment programs, the moderate intensity AICP.

[368] He was under the belief that Millhaven, maximum-security, did not have this programming. In cross-examination, the Crown challenged him on this belief, based on previous evidence that Millhaven could offer Aboriginal sex offender programming, high intensity.

[369] At the request of Defence counsel, he wrote a new sentence recommendation, as compared to his initial report. This is set out in Ex. 19. Mr. Marsolais-Nahwehgahbow recommends that if the court imposes a federal jail sentence of 2 years or more, that Mr. Bourdon be incarcerated at Bath Institution. He agrees with the content and duration of the new programming being offered. He agrees with the program in addressing the impact of abuses in foster care, racism, the 60s scoop, residential schools and depriving Aboriginals of their culture.

[370] He testified that the purpose of the Sacred Story is not only to assist the court, but also to show the healing path to Mr. Bourdon.

[371] He testified that disclosure for Aboriginal offenders is easier in the presence of Elders in the course of Aboriginal focused programming. The offender will be better able to understand what he has done.

[372] He had spoken to one of the managers at the Waseskun Healing Lodge. He said that it offered sex offender programming and that there are Elders on-site. He testified that they do take offenders subject to LTSO and who are dangerous offenders. He was unclear as to whether a DO indeterminate could gain admission. He believed that admission to the Lodge could occur during a custody portion of the offender’s sentence.

[373] With respect to his interview of Mr. Bourdon, he agreed that Mr. Bourdon had reported a relatively good early childhood (other than the sex abuse). His parents were positive influences and his family provided everything he needed. He had loving grandparents on both sides who operated farms and he had fond memories of his childhood. His parents and grandparents were hard-working people.

[374] He had no information as to when Mr. Bourdon was last in touch with his daughter Emily. He said it appeared that he had no contact with his son Ryan.

[375] He testified that he reported Mr. Bourdon telling him that he wants to be there for his kids, and when asked whether that seemed pretty unrealistic in the circumstances, he replied that he did not judge Mr. Bourdon’s statement.

[376] He testified that he has not read the decision of conviction of Mr. Bourdon and he does not know what offences Mr. Bourdon was convicted of.

[377] He testified that he asked Mr. Bourdon about his Aboriginal ancestry. Mr. Bourdon was unclear. He referred Mr. Marsolais-Nahwehgahbow to his parents to talk about this. He thought his mother had membership. Mr. Bourdon did not tell him when he learned about his Aboriginal ancestry. He agreed that Mr. Bourdon had been exposed to no Aboriginal cultural or spiritual practices until he found out about this ancestry.

[378] With respect to the comments in the Sacred Story concerning the impact of segregation, he testified that he had no knowledge that Mr. Bourdon had chosen to remain in segregation.

[379] It is reported at page 16 that Mr. Bourdon's father was addicted to percocets and that there were drugs on his mother's side of the family. He was referred to a letter dated November 15, 2010 written by PhD Yeager, a criminologist, to Justice Turnbull to provide an opinion to the court as to sentencing. He had been hired by the family of Mr. Bourdon. The letter stated that there was no evidence of instability in the family. Mr. Bourdon reported no domestic violence, no family alcoholism or drug abuse. Mr. Marsolais-Nahwehgahbow was unaware of this letter.

[380] He testified that the experiences of Aboriginal ancestors for example, in residential schools or removal from their families and communities, leaves survivors scarred, lack of self-esteem, lack of self-worth, inability to move on. This negatively affects future generations leading in turn to further lack of self-esteem, inability to succeed, abuse of substances, feelings of shame and can cause the victim to become a perpetrator.

[381] When asked whether every Aboriginal person’s moral blameworthiness for offending was the result of such experiences, he replied that a high percentage were, but not in all cases, if not raised in such communities where such experiences existed.

[382] He testified that it is the individual’s experiences that should be considered with respect to moral blameworthiness.

[383] He testified that with respect to the impact of Mr. Bourdon going forward with the suggested CSC programming, it would be his healing journey, whatever that is.

[384] There is no reason given for recommending Bath over Warkworth, which Ms. Burkitt testified had a long standing multi-faceted Aboriginal focused Treatment Program.

[385] Mr. Marsolais-Nahwehgahbow refers to the High Intensity AICPM. Maximum risk offenders are offered High Intensity Programming at Millhaven. Moderate and high intensity programs are offered to moderate risk offenders at medium risk institutions such as Warkworth and Bath. (Ex. 20).

[386] It is to be noted that in her submissions, Defence counsel is critical of CSC’s decisions in the past to not classify Mr. Bourdon as a maximum security risk offender. This is inconsistent with Mr. Marsolais-Nahwehgahbow’s Ex. 19 recommendation that he serve his custodial time at Bath, medium security.

9. Sarah Niman

[387] Ms. Niman is the second author of the Sacred Story report. The report and her oral testimony did not contain any information about her background and experiences, except that she has written such reports. R v. Lawson, supra.

[388] To write her report, she read the transcript of Mr. Marsolais-Nahwehgahbow’s interview of Mr. Bourdon. She spoke to Mr. Bourdon's father on the telephone. She read the reports of Dr. Gray and the letter by Dr. Yeager, criminologist, November 15, 2010, Mr. Bourdon's criminal record and she researched Gladue factors and the history of the Algonquin First Nation.

[389] The basis for her statement that, “René is a man born into Algonquin lineage”, is his self-report to Mr. Marsolais-Nahwehgahbow, and her conversation with his father. Pierre Bourdon told her that in about 2010 or 2011 as a result of some internet research done by the family, his wife hired a researcher who proved the connection between Yvonne and the Algonquin First Nations. Yvonne approached the Algonquins and ascertained her membership.

[390] Ms. Niman spoke to the Algonquin First Nation office confirming that Mr. Bourdon’s mother had membership and that therefore, so did he. Ms. Perrault, assistant to the Mattawa area Algonquin negotiation representative, the Chief, told her to encourage Mr. Bourdon to contact their office so that they could just retain his mailing address and so that he could access any support he may need in building his Algonquin identity. Ms. Niman has no information that he has done so.

[391] Ms. Perrault would not supply any further details to Ms. Niman, citing privacy concerns. Ms. Niman believed that one or either of Mr. Bourdon's mother’s parents must have been registered as members.

[392] Ms. Niman testified that membership is not the same as status through the Indian Act. The former requires identification of a person who had been a recognized member, while the latter is determined by Indian Affairs based upon factors including blood quantum. Membership has no recognition under the Indian Act.

[393] Her research into the Algonquins and specifically, the Mattawa North Bay Algonquin First Nations, identified that this First Nations has had no recognized lands to this point in time. There is only one formally recognized Algonquin territory in Ontario, which is northeast of Thunder Bay, Pikwakanagan.

[394] Ms. Niman has experienced other situations where persons with Aboriginal heritage have not discovered this ancestry until later in life. Mr. Bourdon fits a pattern which she has seen with the Algonquins, namely raised without knowledge of Aboriginal heritage, learning of it and pursuing avenues to learn more about his culture.

[395] She testified that even though he grew up without knowledge of his Aboriginal culture and he did not grow up in an Aboriginal community, patterns similar to those who have are present, namely, poverty, violence, assimilation, suicide, sexual abuse.

[396] In his interview with Mr. Marsolais-Nahwehgahbow, Mr. Bourdon disclosed the sexual abuse that he had suffered at the hands of his maternal uncle and that he witnessed his sisters being sexually abused by uncles. Dr. Yeager reported that Mr. Bourdon's mother was sexually assaulted as a young child. Ms. Niman learned from Dr. Gray's report that Mr. Bourdon had been abused by a teacher.

[397] He saw his cousin abused on the school bus in front of everyone.

[398] Pierre Bourdon told her that it is difficult for him and his wife to visit Mr. Bourdon because they find the travel distance a burden, because of their age and the fact that they are caring for a disabled nephew.

[399] She was asked what Gladue factors impacted Mr. Bourdon. She replied, one suicide attempt in 1993, the childhood sex abuse that continues to affect him in his day-to-day life, the bullying by his cousins, that he fits the pattern linking childhood sex abuse to the inability to form healthy relationships, depression, inability to deal with stressors and he lived in poverty, a conclusion she made based on the fact of the report that his father lost the house to bankruptcy. She also reports that the parents presently live in a six bedroom house with just themselves and the nephew. She said another Gladue factor is the substance abuse within the extended family.

[400] She confirmed that the long-term effects of childhood abuse apply to both Aboriginal and non-Aboriginal people.

[401] She testified that she did not give consideration to Gladue factors in regard to his parents or siblings, and there is no evidence of such considerations with respect to any other family members, including grandparents.

[402] She testified that the Gladue factors affected his education because he failed to graduate from high school, leaving at grade 10, and did not achieve post-secondary school education.

[403] With respect to his first marriage dissolving, she said that may or may not be due to Gladue factors.

[404] She was asked whether the impact of his incarceration on his daughter was relevant to a Gladue factor. She said this is an example of the impact cascading down onto his daughter, who Mr. Bourdon reports as experiencing depression. Mr. Bourdon reported to Mr. Marsolais-Nahwehgahbow that his non-contact with his daughter was due to the conditions on him that he not be in the presence of a child under the age of 18 years. This is not one of the conditions of his LTSO. Dr. Gray reported that he spoke to the child's mother, Stacey, who told him that Emily did not want a relationship with her father and feels bullied by his parents to keep in touch with him. Emily cannot forgive his actions in relation to his offences. Although Stacey reported that he saw his daughter in 2007 and “once since”, Ms. Niman agreed that in fact, in his interview, Mr. Bourdon had said “not since”.

[405] She was asked as to whether there were any Gladue factors impacting his employment history. She said that he reported difficulty keeping jobs. In this regard, he mentioned his physical limitations and his charges. She said that there is a cascading effect from low education to poor employment history, which many Aboriginal suffer from.

[406] When asked as to what history in his family there was of residential school experience, she said that he did not know of any “but that is not to say it didn't happen”. She agreed that she identified no impact of the residential school experience in his case.

[407] The impacts of colonization and marginalization include isolation, shunning of culture and shaming. It is relevant to the Algonquins because they suffered a disconnect with their lands, and therefore, their communities and culture.

[408] She testified that he missed out on the “positive benefits” that would have been available from living in an Aboriginal community with extended family and supporting culture.

[409] But he inherited many of the “negative aspects”, such as sex abuse and addictions.

[410] With respect to Gladue factors and substance abuse, she testified that his abuse of substances to mask pain and to deal with the trauma he suffered fits the pattern of Aboriginal people. She also agreed that a lot of different factors go into sex abuse and substance addictions. She also agreed that such problems can be seen in non-Aboriginal people. But she qualified that saying “not equally with respect to those persons who have experienced intergenerational trauma”.

[411] She agreed that the impact of intergenerational trauma is individualized and can impact one Aboriginal person differently than another. She agreed that Mr. Bourdon reported that his parents were not drinkers and further, that Pierre Bourdon did not say that he abused percocets, as was reported by Mr. Bourdon. When it was put to her that Dr. Yeager did not report any parental substance abuse, she replied that it was her role to accept what she was told by Mr. Bourdon and not her role to challenge the validity of what he said.

[412] When she was asked about Mr. Bourdon reporting that substance abuse was due to his Aboriginal ancestry, she responded that it was up to the court to decide that, and that that depended on many factors.

[413] She agreed that in his interview with Mr. Marsolais-Nahwehgahbow. Mr. Bourdon reported his background of both sides of grandparents owning farms, and that his family lived in the Town of Bonfield. There was no report of his parents physically or verbally abusing him. He characterized his parents as good parents. He reported that his parents gave him everything that they needed. He reported that his family had food and good clothing. Her use of the word “poverty” in relating to him and his family, was not something reported to her by either Pierre Bourdon, or Mr. Bourdon in his interview, but a word, she attributed to the family when learning that they'd lost the house to a bankruptcy.

[414] She agreed that in his interview with Mr. Marsolais-Nahwehgahbow, Mr. Bourdon had little understanding of his Aboriginal ancestry or the details of through whom or how that lineage flowed.

[415] She agreed that he did not like residing in a halfway house or the conditions restricting him.

[416] She testified that since he learned of his Aboriginal heritage, he has taken steps to heal and move forward.

[417] With respect to her comments concerning the negative impact of segregation, she did not know that he had requested to be kept in segregation. To her it sounded like prison authorities had made that decision. He reported that he had been assaulted many times in jail. Despite her comments about the negative aspects of segregation, she acknowledged that he had been involved in smudging, cultural ceremonies, school, and the mural.

[418] With respect to her comment that he suffers from depression and PTSD, she testified that Dr. Gray would be best qualified for an opinion on that, and that her only information on that is from Dr. Gray's report.

[419] She acknowledged that Mr. Bourdon reported that he felt that the programming that worked best for him was that of Dr. Simourd, 2011 to 2012, which involved his sister and parents.

[420] It was her opinion that the conditions of the LTSO set him up for failure, as was stated by Dr. Yeager. She wrote that opinion before she read the summaries of his offences. But she remains of that opinion. For example, no access to the computer impairs his ability to find work. She acknowledged that he was working at Corcan when he offended most recently, and that he had left his work at Corcan to attend at MB’s, where he was not permitted to be.

[421] Even though it was one of the conditions of his LTSO that he attend counselling with Dr. Simourd, she remained of the view that the conditions of the LTSO set him up for failure.

[422] Even though Mr. Bourdon blames MB for setting him up and that he was not given the help that he needed, despite Dr. Simourd, she remains of the view that the conditions of the LTSO set him up for failure.

[423] Mr. Bourdon's father also believes that Mr. Bourdon has paid his dues, his comment to her was “that horse has been beaten”.

Sacred Story, Mr. Bourdon

[424] At the conclusion of the evidence on Wednesday, April 18, 2018, I canvassed the lawyers for a second time as to whether the Gladue report in this case fulfilled the requirements as identified in R. v. Macintyre-Syrette, 2018 ONCA 259.

[425] Both Crown and Defence counsel assured me that in their view, the Sacred Story fulfilled the legal requirements of a Gladue report.

[426] Their view was in the face of the report not having canvassed local North Bay treatment programming, or Mattawa North Bay Algonquin local remedies as to what institutions exist within that community and whether there are specific proposals from community leadership or organizations for alternative sentencing to promote reconciliation of the offender to his community and his treatment recommendation being based in large part on one telephone call to the manager of programming at Bath Institution.

[427] I noted that Dr. Gray provided testimony about the local North Bay Psychiatric Hospital as suitable only for patients under the jurisdiction of the ORB. Ms. Burkitt gave evidence as to Aboriginal culture treatment and programming, including the services of the Waseskun Healing Centre. Mr. Brant gave additional evidence concerning Aboriginal culture and ways of living.

[428] Mr. Brant testified that he has never seen an Aboriginal community accept back into the community an Aboriginal offender for a serious offence on his release from jail. Mr. Brant, as I explain below, described that traditionally, the community deals with a disruptor including putting him out of the community, possibly for all time.

10. Winston Brant

[429] Mr. Brant gave balanced, common sense testimony without bias or advocating evidence based on his Aboriginal heritage and correctional institutions experiences, both of which were extensive.

[430] He is a Mohawk. He is recognized as an Elder in not only his, but in other Aboriginal communities. He prefers to refer to himself as “a knowledge keeper”.

[431] He made it clear that his perspective is that his people are entitled to their beliefs and values and the white people are entitled to their beliefs and values. It is not his intention to interfere with those latter values and perspectives. Each should paddle in their own canoe, but side-by-side, and live as neighbours.

[432] He explained that his is a matriarchal society. The mothers are the teachers and caregivers, and the boss. When the boys reach puberty, they join the men to learn about providing and protecting. Elders fulfill the role of keeping the legends, and language going and passing it on to the young generation through generation.

[433] He testified that he was not affected by residential schools, born in 1941, and that he was taught by quite a remarkable, non-Aboriginal teacher on his reserve. He testified that by the age of 11, Aboriginal children have been taught their values, morals and principles.

[434] He testified that on a reserve, there are key families. On his reserve, there were three clans, Bear, Wolf and Turtle. One cannot marry into one's own clan. The man goes to live with the woman's clan. Her Elders pass on their teachings and traditions.

[435] He has been educated in behavioural science, abnormal psychology, and social services programs. He has been involved in the justice and correctional system since 1981. His work has included juvenile probation officer, native court worker, classification officer in federal institutions for 20 years working with Aboriginal offenders and substance abuse, and from 1991 working at the federal regional headquarters in Kingston as the regional advisor for Aboriginal programs. He retired in part, in 2002 because of health issues, but he has since gone on to work at the First Nations Technical Institute providing education to Aboriginal persons on the Tyendinega reserve.

[436] Since March of 2018, he has been working as the Elder at QRDC. He provides counselling to offenders who request it. His goal is to assist offenders in changing their behaviour. He said that can be a slow process. He has learned that over the course of 15 years. His practice is to listen and then counsel, “one is born with 2 ears, but only 1 mouth”.

[437] In this capacity, he has met with Mr. Bourdon one-on-one, for 4 one-hour sessions. Through counselling, he hoped to lead Mr. Bourdon to changing his behaviour. His uncle, the first native psychiatrist in Canada, once told him upon walking into Millhaven Institution, “all people need to do is learn to behave”. Mr. Brant said that his uncle meant, “not to commit Criminal Code offences”.

[438] Mr. Bourdon vented, as do most inmates, against the system, particularly his parole officer. Mr. Brant disregards such venting because he does not look to reinforce that behaviour. Mr. Bourdon said that he committed the crimes he was convicted of, but did not relate the details of those crimes. He said he had problems with the programs, such as not being able to participate in sex offender programming when child sexual abuse is disclosed.

[439] Mr. Brant told Mr. Bourdon about the Mohawk people customs, how to operate within the realm of the reserve. The two common threads in Mohawk traditions are 1. Spirituality, and 2. Values, including non-interference, a role model system. The major value is respect for the other person. He said for example when he travelled into Algonquin lands, he would learn their ways and put aside his. That is an example of respect.

[440] He related that his niece is the director of social services on his reserve. She said that in the community, there is very little sex offender treatment for Aboriginal people.

[441] He testified that Spirituality means respect for everything, each blade of grass, the Moon reflects their grandmother, and the stars, their ancestors. He testified that Aboriginals could adapt into Catholicism or Anglicanism easily because that is spiritual, it is all connected to the Creator.

[442] He testified that if the behaviour of a member of the community was disruptive, word would circulate through the community. Such behaviour could include disrespecting in a significant way another member of the community. The community would meet with the person and inform him. Community pressure would be brought to bear on the person. Traditionally, the disruptor would be counselled in the community. The community could counsel the disruptor to take a certain healing Path. If the disrupting behaviour continued, the community could put the disruptor out of the community. The disruptor could be brought into the community for further counselling, but if the disruption continued, he would be put back out of the community for a longer time. If this repetitive pattern continued, the community could physically mark the disruptor and put him out of the community permanently. The mark was to notify any new community that the disruptor had been ostracized or banished from his community. Native people do not like to be isolated.

[443] Today, the Chief and the Band Council can have one removed from the community.

[444] Mr. Brant testified that in all of his experiences, he has never seen a community accept back into it an Aboriginal offender who had been sentenced to jail for a serious crime. Traditionally, Aboriginal communities do not want those people back into their community, and take the jail sentence as the opportunity to keep the offender from returning.

[445] He testified that the traditional way of healing is to deal with the person as a whole person, holistically. This involves a lot of people from the community and the use of healing medicines.

[446] He was asked whether Aboriginal programming, if taken by Mr. Bourdon, would be an effective option to change his behaviour. He said that to him, life is valuable. “He”, Mr. Brant, would do what he could to change such behaviour whether it took 1 year or 2 years or whatever.

[447] He testified that the assistance of Elders after release from federal prisons is found at Friendship Centers across Ontario, including Sudbury, Brantford and Toronto. The Centres help finding beds and jobs for Aboriginal offenders released from jail.

[448] He testified that working as an Elder to help change behaviour would be difficult with someone who was not being honest with him. He related a story that he spoke to an Elder of his failure with respect to one of his offenders. The Elder responded, “Do you go fishing?” “Yes”. “Do you catch them all?”…. “You don't quit trying”.

[449] There is an obvious good reason why Mr. Brant is given respect as an Elder.

G. PAST TREATMENT

[450] Dr. Gray identified the Past Treatment that Mr. Bourdon had undergone and Mr. Bourdon’s comments about each treatment.

Exhibit 3: Prior psychological/psychiatric program reports

[451] Counsel made reference in chronological order to each of the reports contained in this exhibit, and elicited Dr. Gray's comments.

Tab 1 - Addiction Services – community 1997

[452] Mr. Bourdon disclosed addictions to prescription drugs, percocets and painkillers. He disclosed the childhood sex abuse. He disclosed that he had attempted suicide around age 16. Dr. Gray testified that childhood sex abuse and suicide are not necessarily related.

Tab 2 - Dr. Glancy, psychiatrist, 2004

[453] Dr. Glancy was conducting an assessment for court purposes for the consideration of Mr. Bourdon as a long-term offender. Mr. Bourdon had pleaded guilty to 3 sex related offences, 3 different victims known to him, 2 weeks into his trial. Mr. Bourdon denied all of the offences for which he had pleaded guilty and he took no responsibility for those criminal convictions.

[454] Mr. Bourdon disclosed the sexual abuse by his uncle and also that he saw his sister being molested by 3 other uncles.

[455] Dr. Gray testified that there is a higher proportion of convicted sex offenders, as compared to non-sex offenders, who report a history of sexual abuse on themselves.

[456] Dr. Glancy diagnosed dysthymia, which is the presence of chronic, long-term depression almost every day for a period of two years. Dr. Gray specifically made no diagnosis of depression as of May 2017. Mr. Bourdon had spent a number of years in custody as of May 2017 and there is motivation for an offender to demonstrate a need for treatment to diminish responsibility and to lessen restrictions. Dr. Gray testified that it was possible that Mr. Bourdon still suffered from depression.

[457] Dr. Glancy said that the actuarial test showed low to moderate risk for reoffending but that the nature of the offences was worrying as was Mr. Bourdon's denial and minimization of his conduct. He was of the view that this denial and minimization would make it very hard to work with Mr. Bourdon in cognitive behavioural therapy.

[458] Dr. Glancy concluded there was a substantial risk that Mr. Bourdon would reoffend. He said there was a reasonable possibility of eventual control of the risk in the community.

Tab 3 - Psychology classification report, OCI. 2004, Dr. Scapinello, psychologist

[459] Justice Rivard had recommended incarceration at OCI.

[460] Mr. Bourdon reported that he had been the victim of childhood sex abuse, and also abuse of painkillers and illegal street drugs.

[461] Dr. Gray agreed that denial is often seen in sex offenders. This makes it difficult to treat sex offenders.

[462] Dr. Scapinello recommended group sex offender treatment, NA, literacy training, anger management programming and a sexological assessment.

Tab 4 - Parole psychiatric assessment, Dr. Dickey, Psychiatrist, November 21 2005

[463] Dr. Dickey found no evidence of any major mental illness, i.e. depression. There was no evidence of any psychiatric disorder. There was no evidence of cognitive deficit.

Tab 5 - CSC, National maintenance sex offender program: initial assessment, March 13, 2006, Dr. Abracen, psychologist

[464] It is reported that Mr. Bourdon would've completed institutionally-based sex offender treatment programming before participating in this in community programming. Mr. Bourdon self-reported that the institutional sex offender programming had been at OCI and consisted of 21 of 22 weeks of group treatment programming before he was expelled and transferred out of OCI.

[465] The recommendation was that Mr. Bourdon attend the sex offender treatment program offered at CAMH.

Tabs 6 and 7 - Dr. Eccles, psychologist, September 1 and 27, 2006

[466] At this point in time, Mr. Bourdon was an untreated sex offender.

[467] After 2 intake sessions in late August and early September 2006, Dr. Eccles recommended Mr. Bourdon participate in a full sex offender program prior to going into a maintenance level. He was scheduled to start group programming on September 6, 2006. The program was to last 4 months on a weekly basis. Mr. Bourdon was receptive to be starting this programming.

[468] Mr. Bourdon completed 3 of the sessions, but was then suspended from community release. It is reported that he was a good participant and contributed to the group discussion well and completed his homework. Dr. Eccles was pleased with his limited participation.

Tab 8 - Mr. Losztyn, Warkworth Institution, psychologist associate (not a doctor), September 25, 2008

[469] At this point, Mr. Bourdon, has been recently breached. The report indicates that he was eager to talk and disclosed a number of concerns related to his appeal of LTSO, civil suits against CSC and legal issues pertaining to child custody and access. He sounded aggrieved and complained about how his case had been “repeatedly mishandled”.

[470] He disclosed he had been a victim of childhood sex abuse and was in need of treatment.

[471] He said that he was content to be in the treatment unit and not open population.

[472] The report says that he appears to have some substantial PTSD symptoms and he requested individual counselling for victimization issues.

[473] But he “clearly used the session to voice a number of legal and administrative concerns”.

Tab 9 - Dr. Epelbaum, psychiatrist, November 6, 2008

[474] Mr. Bourdon stated he does not want to use Lupron because he does not want to completely jeopardize his sexual functioning as he is hoping to get married and have children.

Tab 10 - Dr. Hucker, psychiatrist, November 13, 2008

[475] Dr. Hucker had done a file review, including reading Dr. Glancy’s note, and he interviewed Mr. Bourdon.

[476] He was concerned that the stated risk assessment of reoffending as low was an underestimate.

[477] Mr. Bourdon readily accepted to undergo preliminary blood tests for Lupron and signed a consent form.

[478] Dr. Hucker prescribed Lupron 22.5gm every 3 months with 3 repeats.

Tab 11 - Mr. Vitelli, psychologist (not necessarily a doctor), January 2009

[479] This is a psychological sex offender assessment report and treatment plan done while Mr. Bourdon was in the community. He had received the first injection of Lupron. Dr. Epelbaum reported that Mr. Bourdon refused Lupron on May 11, 2009 while incarcerated at Hamilton-Warkworth Detention Centre.

[480] Issues identified were childhood sex abuse, suicide attempt, depression and abusing pain medication.

[481] Mr. Bourdon indicated that he was motivated to participate in treatment and wished to attend group as well as individual treatment programming.

[482] The risk for sexual reoffending was moderate to high with the static-99 and psychiatric evaluation. Dynamic risk factors were identified as his offence history, sexual preoccupation and history of noncompliance.

[483] Mr. Vitelli recommended individual psychological counselling to be followed by group placement when his counselor and probation officer deemed him ready. Dr. Gray agreed that such an approach is reasonable. Dr. Gray was of the opinion, however, that that did not mean that Mr. Bourdon was unable to participate in group counselling, and benefit from it.

Tabs 12 and 13 - Dr. Simourd, psychologist, December 2011

[484] This report is a Psychological Treatment Plan.

[485] Mr. Bourdon attended 3 one-hour long clinical sessions in November and December 2011 as part of the treatment consideration program. He complained about chronic back pain, which he claims prevented him from sustaining steady employment. He is attentive to inconsistencies and loopholes in his conditions. His presentation presented a personality style designed to avoid accepting any negative aspect to himself or his situation.

[486] Dr. Simourd determined that his sexual energy could be addressed through sex drive reducing medication. His sexual behaviour could be addressed through cognitive behavioural therapy.

[487] Dr. Simourd determined that his general risk for reoffending was in the moderate high range. He was of the opinion that the risk is deemed manageable because he is not impulsive and likely to show pre-indicators prior to any potential offence.

Tab 14 - CSC National Substance Abuse Program - Moderate Intensity final report, February 15, 2012

[488] It had been determined that he required this program at the high intensity level but that was not available in the community, so he participated in the moderate intensity program at PCCC from January 4 to February 8, 2012.

[489] He had perfect attendance and his participation was acceptable. He was an active participant in the group and demonstrated the skills of active listening and taking turns in the group discussion. He worked well with the other group members. He demonstrated patience and encouragement. He successfully completed that programming.

[490] The recommendation was that he continue with the maintenance program for substance abuse.

[491] This is an example of Mr. Bourdon successfully completing a substance abuse treatment program in a group setting.

[492] Dr. Gray agreed that there were underlying factors that made it difficult for Mr. Bourdon to successfully complete group sex therapy treatment. One such factor is his denial, minimization and failure to take responsibility for his offences. Frank disclosure is necessary.

Tab 15 - CSC National Substance Abuse Program - Community Maintenance Program, July 17, 2012

[493] This program did not specifically target risk factors that contribute to sexual offending, but targeted those risk factors associated with substance abuse.

[494] Mr. Bourdon successfully completed this programming, which ran from March 20, 2012 to July 12, 2012.

[495] It was group programming. He participated with good effort. He showed some insight into why he used drugs and alcohol.

Tab 16 - Dr. Simourd, psychologist, Community Sex Offender Relapse Prevention Program, September 6, 2012

[496] He was referred to Dr. Simourd as part of his parole conditions to follow psychological counselling. He attended 15 psychological treatment sessions from November 2011 to August of 2012. These were of one-hour duration bi weekly. He made slow and steady clinical progress. Mr. Bourdon was in the community during this timeframe.

[497] It is agreed that this was an individual treatment programming for sex offending.

[498] Dr. Simourd reported that Mr. Bourdon “managed himself positively and in a manner that is quite different than his previous conditional releases. He has been involved in positive vocation by working at Corcan industries and has reasonable social activities. Mr. Bourdon has also developed a more positive outlook on his life and has improved his ability to accept responsibility for himself and engage in less denial/minimization. He has had appropriate use of this community access”. Dr. Simourd was of the view that his risk for reoffending had decreased to moderate.

[499] Dr. Simourd was of the opinion that Mr. Bourdon was capable of greater opportunities in the community, such as placement in a less secure setting and eventually to independent living.

[500] This is during the very same timeframe that Mr. Bourdon was cultivating and manipulating his relationships with MB and also with EC, and committing 9 breach conditions of his LTSO and 3 new serious criminal offences.

Tab 17 - National Moderate Intensity Sex Offender Program, CSC program officer, October 19, 2012

[501] This treatment took place while he was at PCCC.

[502] Mr. Bourdon began this program on August 9, 2012 and attended 10 sessions prior to his suspension on September 25, 2012. His participation in the group discussion was minimal. He remained very guarded with information that he was willing to share in the group. He had trust issues with other group participants as well as the correctional staff. He had very poor attendance.

[503] There was no evidence of progress and he did not complete a viable self-management plan. He did not identify his risk factors or any coping strategies.

[504] It was recommended that he would benefit from actively participating in such a program either upon his return to the community or during his incarceration.

Tab 18 - Dr. Simourd, Community Sex Offender Relapse Prevention Program, July 28, 2014

[505] This appears to be a required final report coinciding with the end of Mr. Bourdon’s LTSO.

[506] It appears to be a summary of prior information without further investigation. It does not incorporate the details of the 2012 criminal offences.

H. PAST SUPERVISION

[507] PO John Bailey testified as to the close monitoring and supervision that Mr. Bourdon was subject to when he breached his LTSO conditions in 2006, taking two young females in his car to North Bay.

[508] The evidence at trial from PO Perry Grey described the significant monitoring and supervision Mr. Bourdon was subject to when he was committing the index offences, which included cell phone monitoring and gradual release into the community.

[509] In both of these community strict supervision situations, the substantive breaches and offences were only detected by the parole supervisors by chance.

[510] Mr. Bourdon was not honest with them. He manipulated and deceived them.

[511] As I have already stated, Justice Turnbull identified the prior LTSO suspension warrants and breaches of LTSO conditions committed by Mr. Bourdon while residing in Community Correctional Centres bound by the conditions of the LTSO imposed by Justice Rivard.

[512] Mr. Bourdon states that his conditions are unfair to him, “he has paid his dues”, in the words of his father.

[513] He blames Mr. Grey for not doing his job.

[514] He does not want to be required to live in a community correctional centre or to report contacts with females.

I. LEGAL PRINCIPLES

1. Prescribed Penalties

[515] The Criminal Code prescribes that an offender who breaches a long-term supervision order is liable to imprisonment for a term not exceeding 10 years. S. 753.3.

[516] The Criminal Code prescribes that a person who fraudulently personates another person with the intent to gain advantage for himself is liable to imprisonment for a term of not more than 10 years. S. 403(1)(a).

[517] Everyone who commits a sexual assault is liable to imprisonment for a term of not more than 10 years. S. 271.

2. Evidence

[518] Hearsay evidence is admissible at sentencing proceedings. S. 723(5).

[519] In this case, counsel agreed to the admission of significant hearsay evidence, including from, Mr. Bourdon’s father, a person associated with the Mattawa North Bay Algonquins, the program manager at Bath Institution and Mr. Bourdon's former spouse, the mother of his daughter Emily.

[520] On sentencing, the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it. The court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it. The prosecutor must establish by proof beyond a reasonable doubt the existence of any aggravating fact. S. 724(3) b, d, e.

[521] The Defence must prove contested mitigating factors on a balance of probabilities. R. v. Smickle, 2013 ONCA 678, para. 18.

3. Purpose and Principles of Sentencing

[522] “A sentencing judge in a dangerous offender proceeding must apply the sentencing principles and mandatory guidelines outlined in section 718 to 718.2. … These sections of the Criminal Code set out the purpose and objectives of sentencing (s. 718 ), the fundamental principle of proportionality ( s. 718.1 ), - “the sine qua non of a just sentence” (R. v. Ipeelee, 2012 SCC 13 ) - and the other sentencing principles that a court “shall” consider before imposing any sentence on an offender ( s. 718.2).” R. v. Boutilier, 2017 SCC 64, para. 53.

[523] “… 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.” Boutilier, para. 63.

[524] I have considered these sections of the Criminal Code, in particular those which provide as follows:

PURPOSE

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

FUNDAMENTAL PRINCIPLE

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

OTHER SENTENCING PRINCIPLES

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

4. Dangerous Offender Provisions

[525] The relevant sections of the Criminal Code provide as follows:

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, or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

SENTENCE FOR DANGEROUS OFFENDER

(4) 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) 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.

[526] Sexual assault is by definition a serious personal injury offence.

5. Dangerous Offender Case Law

[527] The Supreme Court of Canada in R. v. Boutilier states the principles to be followed in dangerous offender proceedings.

[528] The dangerous offender scheme is designed as a 2 stage process.

[529] The first stage involves the determination of whether the offender fits the criteria to be found to be a dangerous offender. There are two categories of dangerous offender, namely, dangerousness resulting from violent behaviour, and dangerousness ensuing from sexual behaviour. As I have stated, in the case of Mr. Bourdon, it is admitted by Mr. Bourdon that he fits the criteria under both categories, 753 (1)(a) (i) and (ii) and 753 (1)(b), mandating a finding that he is a dangerous offender.

[530] In this case, it is admitted by Mr. Bourdon that the Crown has proven the designation of dangerousness resulting from violent behaviour, (a)(i) and (a)(ii), and accordingly that the Crown has proven that the offender has been convicted of a serious personal injury offence and that the offender represents “a threat to the life, safety, or physical or mental well-being of other persons”. Boutilier, para. 16, 17, 18.

[531] Under ss. (a)(i) and (ii), an offender cannot be designated as dangerous unless the judge concludes that he is a future threat after a prospective assessment of risk. This future risk assessment at this 1st stage of the DO proceedings has always required consideration of future treatment prospects. Para. 23.

[532] Before designating a dangerous offender, the sentencing judge must be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable, meaning unable to surmount. Para. 27.

[533] Boutilier makes it clear that the purposes of prospective treatment evidence at the designation and at the sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, at the designation stage, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender's behaviour can be adequately managed outside of an indeterminate sentence. Para. 31.

[534] The Supreme Court of Canada makes it clear that the purpose of the indeterminate sentence has always been “neither punitive nor reformative but primarily the offender's segregation from society… This preventive sanction can be imposed only upon offenders for whom segregation from society is a rational means to achieve the overriding purpose of public safety”. Para. 33.

[535] The Court goes on to say that reference to dangerousness based on sexual conduct under s. 753(1)(b), which is also conceded by Mr. Bourdon in the present case, reinforces the conclusion that under both criteria a prospective assessment of future risk is required. Para. 38.

[536] The Court concludes that a “judge shall designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt that the offender actually constitutes a future threat to safety in light of all the relevant evidence.” Para. 41.

[537] The Court found in Boutilier that the trial judge had failed to consider the accused’s treatment prospects before designating him as a dangerous offender and therefore erred in law. Para. 82.

[538] At the second stage, the sentencing judge must also consider future risk and future treatment prospects when considering the appropriate sentence to be imposed. “All of the evidence adduced during a dangerous offender hearing must be considered at both stages of the sentencing judge's analysis, though, for the purpose of making different findings related to different legal criteria. During the application hearing, the Crown or the accused must present any prospective evidence concerning risk, intractability, or treatment programs, including the required assessment report addressing prospective treatment options…. Even where the treatment prospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public”. Paras. 44, 45.

[539] Furthermore, as I have already stated above, Boutilier stands for the principle that the sentencing judge in a dangerous offender proceeding must apply the sentencing principles and mandatory guidelines outlined in Criminal Code sections 718 to 718.2. This includes the proper application of the Gladue principles and the imposition of the least intrusive sentence, requiring consideration of all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community. (para. 69-70).

6. Gladue Principles

[540] In about 2011, Mr. Bourdon first self-identified as Aboriginal. He self-identified as Metis to Sandra Burkitt. The evidence on this consists of his father, reporting that he and his wife became interested in their backgrounds in 2010 or 2011. They hired a researcher who traced the wife’s background to the Mattawa North Bay Algonquin First Nation although there is no detailed evidence as to the linkage. An employee with the Mattawa North Bay Algonquins confirmed that Yvonne Bourdon has membership, which is distinct from status. As a result of her membership, Mr. Bourdon has membership.

[541] The evidence is that until this point in time, Mr. Bourdon had known nothing of his Aboriginal heritage and had not grown-up in a community that exposed him to Aboriginal teachings and culture. Since learning of this connection, and after he was reincarcerated for his suspension in September of 2012, he has participated in smudging ceremonies and in painting a mural in tribute to the truth and reconciliation proceedings.

[542] The court must apply the Gladue principles, and consider the unique circumstances of Aboriginal offenders involved in this sentencing for a dangerous offender.

[543] This court takes judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case specific information presented by counsel. R v. Ipeelee, para. 60.

[544] A Gladue report is a type of presentence report specifically tailored to the specific circumstances of the Aboriginal offender. Its purpose is to provide the court with individualized information about how intergenerational and systemic effects of colonialism, displacement, residential schools, poverty, unemployment and substance abuse have affected the Aboriginal offender who is before the court. The report should also include information about realistic restorative or rehabilitative programs suitable to the particular, Aboriginal offender. Gladue reports can contain information about the offender's history, including experiences with foster care or adoption, witnessing or being the victim of domestic violence or childhood sexual abuse, experiences of racism or discrimination, cultural alienation and loss of cultural identity or language, health issues, education, employment history, substance abuse and addiction of the offender and his family, living conditions, connection to an Aboriginal community and family history with residential schools.

[545] The report should also contain information on available community support, such as the availability of counselors or treatment facilities, distances between the community and correctional facilities and whether the relevant correctional facilities offer culturally relevant programs and assessments. The Gladue report for Mr. Bourdon made mention of the North Bay Psychiatric hospital as a possible treatment facility for Mr. Bourdon to ease the burden on his parents’ travel to visit him. The report did not provide information about available programming, admission or suitability for Mr. Bourdon. In response to questions by the court, Dr. Gray testified that the facility was not suitable for Mr. Bourdon because it is limited to patients under the jurisdiction of the ORB.

[546] Mr. Bourdon's Gladue report made one recommendation for treatment, based on one telephone call to Bath Institution, manager of programming, Ex. 19. The writers recommended incarceration at Bath Institution, medium security, with Aboriginal focused sex offender treatment. The report mentioned that the same treatment was available at Warkworth, which Ms. Burkitt described as having excellent and long-established Aboriginal focused treatment programs. The report did not state why it recommended Bath over Warkworth, nor did the writers in their oral testimony.

[547] I asked Counsel to consider whether the Gladue Report was sufficient in fulfilling the legal requirements and both advised me that it was their opinion that it did.

[548] The report did not contain information about the writers including their background and experiences to help the court assess the reliability of the report. Mr. Marsolais-Nahwehgahbow supplied background information concerning himself in his oral testimony, but Ms. Niman did not.

[549] I recognize that it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an Aboriginal person. Whether the offender resides in a rural area, on a reserve or in an urban centre, the sentencing judge must be made aware of alternatives to incarceration that exist, whether inside or outside the Aboriginal community of the particular offender.

[550] Although there are only two sentencing options proposed, indeterminate, or determinate followed by an LTSO, information concerning how Mr. Bourdon would serve the LTSO in the community, under what supervision and with what in community treatment and supports there are is of considerable importance. Mr. Brant advised that his niece who is the director of social services on his reserve advises that there is very little sex offender treatment for Aboriginal people in the community. There was no detailed evidence of the CSC in community maintenance treatment and programming that would in fact be available to Mr. Bourdon upon his release from a custodial jail term.

[551] The Aboriginal offender is not required to prove a causal connection between the systemic or background factors of the offender and his offence. The court must focus on two questions:

1. To what extent do these factors impact on the moral blameworthiness of the offender? There must be consideration of the impact of the offender’s Aboriginal heritage on his moral culpability.

2. To what extent do these factors impact on an appropriate sanction? The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that given these fundamentally different world views different or alternative sanctions may more effectively achieve the objective of sentencing in a particular community. Mr. Brant gave evidence of the values committed to by Aboriginal communities, in particular, respect for other members and for the Criminal Code laws.

[552] The court must still take notice of systemic and background factors even where there is no apparent connection to the offender. This will not necessarily impact on the sentence. “The sentencing judge cannot simply ignore the fact that an offender has an Aboriginal background, but on the other hand, she or he is not bound to find that such a background will lead to a conclusion that the offender has been disadvantaged because of the background. The sentencing judge must consider the Gladue principles when dealing with an Aboriginal offender, but there will be instances where little weight is to be attributed to those principles because of the facts surrounding the offender in question”. R. v. Rennie, 2017 MBCA 44, para. 20.

[553] Where the Gladue factors are not “tied in some way to the offender and the offence”, then they will not impact on the offender's moral culpability or justify an alternative sanction. R. v. Bauer, 2013 ONCA 691, paras. 13 to 15. For example, Aboriginal heritage will not justify a departure from the normal range where the offender has limited connections to Aboriginal culture, grew up off reserve, and was raised by happily married parents who were successful business owners and who had no family history of sexual abuse, forced displacement, or attendance at residential schools. Para. 14.

[554] Where dislocation from Aboriginal culture can be traced to systemic disadvantage and impoverishment and where the offender has been denied access to his or her Aboriginal heritage through adoption, dislocation and loss of identity, this may be relevant to the moral blameworthiness of the offender even if the offender has been largely ignorant of his or her Aboriginal heritage.

[555] It is incumbent on sentencing judges to explicitly consider the Gladue factors and how they factor into the final determination of sentence in each case.

[556] In R. v. F.H.L., 2018 ONCA 83, the Ontario Court of Appeal set out the proper approach for consideration of the Gladue principles by a sentencing judge:

31 The law is clear that courts must “pay particular attention to the circumstances of Aboriginal offenders” in all cases, even those involving the “gravest of offences”. … When sentencing an Aboriginal offender, courts must consider:

(1) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts;

(2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66).

32 When assessing the first branch of the Gladue framework, courts should not require offenders to establish a causal connection between “systemic or background factors” and the crimes for which they have been convicted: Ipeelee, at para. 82. Such a requirement “displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples” and “imposes an evidentiary burden on offenders that was not intended by Gladue”: Ipeelee, at para. 82. This court has rejected a “causal connection” requirement in multiple decisions.

The Proper Approach

38 … In order to be relevant to sentencing, an offender’s Aboriginal background need not be causally connected to the offence(s) for which a sentence is being imposed. In what circumstances, then, will an offender’s Aboriginal background influence their ultimate sentence? The answer is “not so easily ascertained or articulated”. Clearly, the mere assertion of one’s Aboriginal heritage is insufficient — s. 718.2(e) does not create a “race-based discount on sentencing”: Ipeelee, at para. 75. Although Aboriginal offenders are not required to “draw a straight line” between their Aboriginal roots and the offences for which they are being sentenced, more is required “than the bare assertion of an offender’s Aboriginal status”: R. v. Monckton.

39 It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society. While courts are obliged to take judicial notice of those factors, they do not “necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel”.

40 The correct approach may be articulated as follows. For an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case. …

41 The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be “tied in some way to the particular offender and offence”. LeBel J. went on to note that “[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.” LeBel J. elaborated on the concept of “culpability” at para. 73, explaining that “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.”

42 … [systemic and background] factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing”.

43 From a sentencing judge’s perspective, adhering to this approach requires attention to two factors.

44 First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include “such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”: Ipeelee, at para. 60. This list is not exhaustive.

45 Second, a sentencing judge must consider whether those systemic and background factors “bear on the [offender’s] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing”. This inquiry, by necessity, requires the sentencing judge to consider whether those factors have impacted the offender’s own life experiences — in other words, whether the offender has “lift[ed] his life circumstances and Aboriginal status from the general to the specific”. If systemic and background factors have impacted an Aboriginal offender’s own life experiences, the sentencing judge must then consider whether they “illuminate the offender’s level of moral blameworthiness” or disclose the sentencing objectives that should be prioritized. … in Ipeelee, at para. 73:

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. … the reality is that their constrained circumstances may diminish their moral culpability”. Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se.

[Underline Emphasis Added, Italic Emphasis in Original]

46 Sentencing judges must therefore be attentive to whether the circumstances of Aboriginal offenders — viewed in the light of the systemic and background factors described above — “diminish their moral culpability”. In conducting this inquiry, however, courts must display sensitivity to the “devastating intergenerational effects of the collective experiences of Aboriginal peoples”, which are often difficult to quantify. When inquiring into “moral blameworthiness”, courts must ensure they do not inadvertently reintroduce the same evidentiary difficulties that Ipeelee sought to remove. …

The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge ... In applying this approach, sentencing courts must pay careful attention to the complex harms that colonisation and discrimination have inflicted on Aboriginal peoples.

47 Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the “degree of responsibility of the offender” … Gladue and Ipeelee do not detract from the “fundamental principle” that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a “different method of analysis”: Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation.

To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence.

Applying the Proper Approach

48 Considering a fit sentence for the appellant in the light of the above framework, I would not interfere with the eight year sentence imposed by the sentencing judge. I say this for two reasons.

49 First, the evidence does not demonstrate that the systemic and background factors affecting Aboriginal peoples in Canada have impacted the appellant in a way that bears on his moral blameworthiness. In this case, the pre-sentence report and the Gladue report do not show that the appellant’s reported childhood difficulties or alcoholism were linked to systemic, background or intergenerational factors related to his Aboriginal heritage. Unlike in Kreko, there is no evidence that (1) such factors contributed to the appellant’s experiencing dislocation or an identity crisis coinciding with his involvement in the criminal justice system, or that (2) such factors otherwise impacted the appellant’s moral blameworthiness: see Bauer, at para. 14.

50 Second, even assuming the Gladue factors carried greater weight in this case, the nature of the appellant’s offence cries out for deterrence and denunciation. I agree with the sentencing judge that the abuse inflicted on E.B. by the appellant “carries with it all of the most distressing features” of sexual assault”.

51 This court’s comments at para. 51 of N. (J.), a case concerning a similar set of facts, equally applies here:

this is simply one of those cases where the crimes were so heinous, and the aggravating factors were so compelling, that the appellant’s Aboriginal status should not affect the length of the sentence imposed.

[557] The Court of Appeal provides additional guiding principles in dangerous offender proceedings in R. v. Radcliffe, 2017 ONCA 176:

52 It is now firmly established that when sentencing an Aboriginal offender, a judge must consider:

i. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the court; and

ii. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage and connection.

See R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 66; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.

53 Systemic and background factors may bear on the culpability of the offender, to the extent they illuminate the offender's level of moral blameworthiness: Ipeelee, at para. 73. The second set of circumstances -- the types of sanctions that may be appropriate -- has to do with the effectiveness of the sentence itself: Ipeelee, at para. 74.

54 Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.

55 Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence: Ipeelee, at para. 83.

56 Section 718.2(e) of the Criminal Code imposes a statutory duty on a sentencing judge to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case of an Aboriginal offender offends this statutory obligation and constitutes an error justifying appellate intervention: Ipeelee, at para. 87.

57 As a matter of general principle, characteristics that make an offender "less blameworthy" have little impact on a dangerous offender application: R. v. B. (D.V.), 2010 ONCA 291, 254 C.C.C. (3d) 221, leave to appeal refused, [2011] S.C.C.A. No. 207, at para. 80. Where Gladue factors serve to establish the existence and availability of alternative Aboriginal-focused means aimed at addressing the environmental, psychological or other circumstances which aggravate the risk of re-offence posed by the Aboriginal offender, a sentencing judge must make reference to them: R. v. Jennings, 2016 BCCA 127, 384 B.C.A.C. 152, at paras. 35, 38; R. v. Standingwater, 2013 SKCA 78, 417 Sask. R. 158, at para. 51.

58 To determine whether a lesser measure will adequately protect the public, there must be evidence before the sentencing judge that the dangerous offender can be safely released into the community. Mere hope, even a judicial assumption about the existence of community programs or other necessary resources, is inadequate to the task of addressing the reasonable expectation of protection of the public. Evidence of the existence and availability of community resources that will provide the essential level of extra-custodial supervision to adequately protect the public is necessary: R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291, at para. 48.

59 Some courts have pointed out that the application of Gladue factors must be practical. Sometimes, the long-standing problems of a person declared a dangerous offender simply cannot be adequately ameliorated, the risk of re-offence reduced to an acceptable level, by Aboriginal programs or facilities alone. The failure to consider Aboriginal circumstances may be overcome by evidence regarding risk of re-offence and the absence of any reasonable possibility of eventually controlling that risk in the community: Jennings, at paras. 40-41.

63 It is well settled that Gladue factors and s. 718.2(e) of the Criminal Code have limited relevance in dangerous offender proceedings. They have no say in whether an offender meets the statutory requirements for designation as a dangerous offender. Their influence has to do with the subsidiary question of whether there is a reasonable possibility of eventually controlling the offender's re-offence risk in the community, thus on the divide between dangerous and long-term offenders. With the paramount sentencing objective of protection of the public, the judicial discretion to determine an appropriate sentence is significantly circumscribed.

[558] The British Columbia Court of Appeal in R. v. Jennings dealt with a case of a dangerous offender designation and indeterminate sentence and the consideration of Gladue factors. That accused had been largely resistant to treatment over the years of his criminal conduct. He participated in therapy for sexual offenders from time to time but demonstrated little interest or commitment and he failed to complete some programs. Between 2000 and 2003 he took medication to manage his sexual behaviours as a term of the sentence. He did not reoffend during that time but he discontinued the medication as soon as his probation order expired.

[559] The Court made reference to Justice LeBel's words in R. v. Ipeelee, para. 59: “when sentencing an Aboriginal offender, the judge must consider: a. The unique systemic or background factors which may have played a part in bringing the particular, Aboriginal offender before the courts; and b. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular, Aboriginal heritage or connection. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case specific information will have to come from counsel and from the presentence report”…

[560] The evidence must be specific to the particular Aboriginal offender.

[561] The Court identified the questions to be considered as, a. Whether the sentencing judge erred by failing to give tangible consideration to the unique and systemic factors that brought Mr. Jennings before the court (Ipeelee, para. 95 ), and b. Whether alternative sentencing procedures and sanctions might be available other than indeterminate incarceration, bearing in mind the more limited application of Gladue factors in the context of a dangerous offender hearing. (para. 38).

[562] In that case there was no evidence of any program capable of adequately addressing Mr. Jennings’ risk factors. None of the 3 expert witnesses who had extensive experience with the criminal justice system suggested any alternative to institutional programs based on long-term incarceration. There was no evidence that available in custody programming pointed to the appropriateness of imposing anything other than an indeterminate sentence given the appellant’s high-risk and resistance to treatment. (para. 43).

J. POSITION OF THE CROWN

[563] Both the Crown and the Defence made submissions orally, supplemented by written submissions. Their substantive submissions were made orally, in court on the record.

Dangerous Offender Designation

[564] The Crown submits that on the evidence adduced on the application, including 1. Mr. Bourdon’s criminal record and the index offences, 2. his personal traits and characteristics, 3. the lack of positive impact of previous treatment and programming, 4. his breach of conditions of his LTSO and reoffending despite close supervision, 5. the evidence relating to a prospective assessment of risk to the public and the consideration of the prognosis for future treatment reducing risk (Boutilier), 6. a consideration of the Gladue principles (Radcliffe), and in addition, 7. the acknowledgment by Mr. Bourdon and his counsel that he meets the criteria set out in s. 753 (1) (a) (i) and (ii) and s. 753 (1)(b), this court should be satisfied that Mr. Bourdon should be declared a dangerous offender.

[565] The Crown submissions concerning the assessment of future treatment on Mr. Bourdon's risk as advanced in detail by it in the sentencing stage are adopted by it for consideration at the designation stage.

[566] Mr. Bourdon has been convicted of a serious personal injury offence, sexual assault.

[567] Mr. Bourdon’s offending demonstrates a very clear pattern. His offending has not been restrained by incarceration, treatment and programming or close supervision in the community, subject to conditions. The evidence establishes that there is a high likelihood that the same behaviour will occur in the future, despite future treatment and programming, and will cause injury. s. 753(1)(a)(i)).

[568] The Crown submits that drugging and sexually assaulting women, so that it appears that there is a consent, is the pattern of persistent, aggressive behaviour. The evidence establishes that Mr. Bourdon has demonstrated a substantial degree of indifference towards the reasonable forseeable consequences of his behaviour, including knowing of the impact on his 3 victims and hearing their victim impact statements and Justice Rivard’s comments at the time of his 2004 convictions and sentence, and blaming MB for his index offences. The evidence establishes a likelihood that this type of aggressive behaviour, forming the pattern, will continue in the future. s. 753(1)(a)(ii).

[569] The Crown also submits that the evidence establishes that Mr. Bourdon has shown a failure to control his sexual impulses, that he is likely in the future to show a similar failure, and that his failure to control his sexual impulses is likely to cause injury in the future to another person despite past and future treatment. There is evidence of considerable emotional and psychological harm caused to his victims. s. 753(1)(b).

Sentencing Stage

[570] It is the Crown position that there is no reasonable expectation that a lesser measure, in this case, the Defence proposes one sole option, a determinate sentence followed by a long-term supervision order, will adequately protect the public against the commission by the offender in the future of a serious personal injury offence. s. 753(4) and (4.1).

[571] The Crown cites R v. DB, [2015] O.J. No. 5138, 2015 ONSC 5900, for the definition of “reasonable expectation”, para. 194, and for a list of factors that a sentencing judge should consider when determining if public protection could be reasonably expected by a disposition, less severe than indeterminate imprisonment, para. 199.

[572] There must be evidence of treatability that is more than an expression of hope. The evidence must indicate that the offender can be treated within a definite period of time. The evidence of treatability must be specific to the offender. R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178, para. 47 – 49.

[573] The Crown submits that this court is uniquely situated to assess how future treatment, conditions under a LTSO and close supervision will not reduce the risk that Mr. Bourdon poses to the public. This court does not need a crystal ball because of the evidence of Mr. Bourdon’s background and the facts leading up to and constituting the index offences.

[574] The Crown submissions on the issue of reasonable expectation that a lesser measure will adequately protect the public were organized and presented under the following headings and subheadings:

I. Mr. Bourdon is not amenable to community supervision.

1. Past Breaches

2. Challenges Regarding Mr. Bourdon’s Community Supervision.

3. Mr. Bourdon’s Attitude Towards his Conditions/Parole Officer is unlikely to change

4. The conditions are critical for Protection of the Public

5. There are no other conditions that can be added to adequately monitor Mr. Bourdon

II. Prior Treatment has not Reduced the Risk

1. OCI Sex Offender Programming

2. Dr. Eccles Sex Offender Programming

3. Dr. Simourd Sex Offender Programming

4. Moderate Sex Offender Program

5. Substance Abuse Programming

III. Future Prognosis for Future Treatment is Poor

1. Mr. Bourdon’s attitude and personal traits/characteristics suggest poor response to future treatment.

2. The cause of Mr. Bourdon’s sexual offending is very difficult to treat (includes PCL-R results).

3. Mr. Bourdon’s childhood victimization is not the cause of his offending and treatment in this area will not reduce his risk.

4. Future culturally sensitive programming will not adequately reduce his risk

5. The impact of Aboriginal specific treatment is hopeful/speculative, at the highest.

IV. Pharmacological Intervention will not reduce risk

1. SSRI’s

2. Lupron

3. Mr. Bourdon cannot be compelled to take Lupron and enforcement is difficult.

V. Burnout Theory is speculative in Mr. Bourdon’s case (DOB May 17, 1977).

VI. Mr. Bourdon is not Treatable within a Definite Period of time.

[575] The Crown submissions include specific details from the evidence and relevant case law in respect of each of these headings and subheadings.

VII. Deference to PBC.

[576] The Crown submits that deference should be given to the Parole Board of Canada if current or future management is uncertain.

[577] In R.M., which has been subsequently upheld by the Court of Appeal, Justice Molloy held that if a sentencing judge is uncertain about the manageability of the offender upon completion of his determinate sentence then he should be given an indeterminate sentence with deference to the national Parole Board about the timing of his release.

If he is found at that time to have reached a point where he can be released into the community without undue risk to the public, the Parole Board is mandated to direct that release. The Parole Board will have a considerable advantage in making that decision five years hence as it will be in a position to evaluate R.M.'s progress in the institution and his participation in the recommended treatment programs. They will also be in a better position to determine whether his relatively recent expressions of "regret", made in the course of this hearing, have advanced beyond superficiality and whether he has developed true insight into his history and condition. Also, they will be in a better position to determine the kinds of supervisory safeguards that can be put in place in respect of an imminent release. If R.M. has failed to participate in a meaningful way in available treatment programs or has failed to behave appropriately within the prison setting, that would a negative indicator as to the likelihood of his being susceptible to control outside the institution, as was noted by Dr. Woodside in his evidence at the hearing before me. On the other hand, if R.M. behaves well and successfully completes the recommended treatment programs, that would be a positive factor in predicting the likelihood of controlling the risk he might reoffend if released.

Obviously, if I was in a position at this point to determine there was a "reasonable possibility" of eventually controlling the risk of reoffence, then it would be improper to defer that determination to the National Parole Board… However, based on what information I know now, all I can say is that I would hope the risk could eventually be managed and that I cannot rule out the possibility of that occurring someday. But I also cannot conclude that there currently exists a basis for saying there is a "reasonable" possibility of eventually controlling risk and I equally cannot predict when in the future, if it all, such a possibility could be "reasonably" predicted. I do believe that the National Parole Board will be in a better position to make that prediction closer to the actual date of potential release and after R.M. has had the advantage of various treatment programs.

R. v. R.M., [2005] O.J. No. 4977 (S.C.J.) at paras. 125 & 127; aff’d 2007 ONCA 872, [2007] O.J. No. 4856 (C.A.).

[578] If an offender is sentenced to an indeterminate period of custody, he must serve a minimum of seven years beginning from the date of arrest prior to being able to apply for full parole. In this case in such situation, Mr. Bourdon’s full parole eligibility date would be September 25th, 2019. He would be then entitled to an automatic review every 2 years thereafter, in such a situation.

[579] If an offender avails himself of appropriate treatment, and he actually becomes manageable in the community, the Board must grant his supervised release. This fundamental proposition has been repeatedly noted in the case law.

[580] As noted by Molloy J. in R.M.:

Counsel for the defendant argues that as a practical matter a dangerous offender designation is a virtual life sentence as such offenders are rarely, if ever, released. I do not agree. The fact that few are released is an indication of the fact that only the most serious and violent offenders receive the designation and not many of them ever meet the criteria for release. However, I have no reason to believe that the National Parole Board will ignore its statutory duty to release R.M. in the future if that can be managed without undue risk to the public. As was observed by the Supreme Court of Canada, the parole system "ensures that incarceration is imposed for only as long as the circumstances of the individual case require" and this is what saves the dangerous offender provisions from being unconstitutional as cruel and unusual punishment: R. v. Lyons at para 49. [emphasis added]

R. v. R.M., (2005) supra at para. 126

R. v. Sipos, 2012 ONCA 751, [2012] O.J. No. 5212 (C.A.), at paras. 24-26; aff’