COURT FILE NO.: 13-5075

DATE: 2018/02/01

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

BETWEEN:

HER MAJESTY THE QUEEN

– and –

F.C.

Lia Bramwell, for the Crown

Ann London-Weinstein, for the offender

HEARD: November 27-30, December 4, 6, 7 and 11, 2017; written submissions received December 11, 15 and 18, 2017

DECISION RESPECTING AN APPLICATION BY THE ATTORNEY GENERAL FOR ONTARIO TO HAVE F.C. DECLARED A DANGEROUS OFFENDER

C.D.A. McKINNON, J.

The Offences

A.L.

[1] On July 9, 2015, following a trial without a jury, I convicted F.C. on charges of sexual interference, invitation to sexual touching, sexual assault, uttering a threat to cause death, and forcible confinement in relation to A.L., who was 11 years of age at the time. The reasons for conviction are reported at 2015 ONSC 4186.

[2] The attack on A.L. was remarkably brazen. It occurred on a warm summer night in late June 1997 in a public park. F.C. and A.L. were both on bicycles going in opposite directions. They met on a bike path in the park. F.C. exposed his penis to A.L. and asked her to feel it. She began to cry. F.C. covered her mouth with his hand and told her to be quiet and not cry or scream or he would kill her. He put his hands down A.L.’s overalls and felt her vagina, then took her to bushes located nearby.

[3] A.L. asked F.C. if he had a gun. He told her that he did and if she screamed he would kill her. He forced A.L. to lie on her back and perform fellatio on him. His penis was forcibly in her mouth and she was having difficulty breathing. He was touching her vagina with his mouth and his hands during the time his penis was in her mouth. He demanded that she “suck harder” while his penis was in her mouth and moved away from her just before ejaculating. During the attack, a black dog came by and F.C. shooed the dog away. During the act of fellatio, A.L. felt that she was “choking a bit.”

[4] On these facts, F.C. was convicted of all offences charged. I shall stay the charge of sexual interference contrary to s. 151, because it is rendered redundant by the rule in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[5] The case involving A.L. was an unsolved case until F.C. sexually assaulted his step granddaughter, G.L. Following his conviction for that offence, a DNA sample was taken from F.C. and forwarded to the DNA databank, where it matched DNA deposited on A.L.’s t-shirt during the sexual assault upon her.

G.L.

[6] F.C. was convicted of sexually interfering with G.L. during the year 2011 by Wright J. of the Ontario Court of Justice on June 10, 2013, and was sentenced to a period of 13 months in jail and three years’ probation. Once again, the facts surrounding the sexual assault on G.L. were brazen. The assault occurred in a home occupied by F.C. and his wife, L.C., who ran a daycare centre. F.C. enticed G.L. up to a bedroom on an upper floor of the home, where he spread peanut butter on her vagina and proceeded to lick it off. He then took a bath with her in the nude and cleaned the peanut butter off her vagina. G.L. was five years of age. There may have been more than one occasion when this happened, as I read the evidence of G.L., but for the purpose of these reasons, I shall assume it happened only once.

[7] In his reasons for convicting F.C., Wright J. commented that F.C. “did not present himself as a credible or believable witness.” He referred to F.C. as being dishonest.

[8] This is noteworthy because F.C. gave evidence in his defence of the charges before me. I found his explanation as to how his DNA came to be deposited on the t-shirt of A.L. to be utterly preposterous and unworthy of belief.

[9] Wright J. found that F.C. was in a position of trust to G.L., which heightened F.C.’s culpability.

S.V.

[10] No formal charges were laid against F.C. in relation his sexual assault of S.V. She testified under oath at the sentence hearing. She is now 16 years of age. She adopted a video interview that she had given to the police in May 2012. S.V. was babysat at the daycare run by F.C.’s wife. F.C. and his wife, L.C., had a daughter, K., and S.V. became friends with the daughter. On one occasion, F.C., S.V., and K. went swimming at Lac des Loups. When K. was off swimming, F.C. was alone with S.V. and he lowered his pants and showed her his genitals. This happened numerous times throughout the day. F.C. was laughing as he exposed himself. He did this anywhere from 10 to 20 times.

[11] On another occasion, F.C. was with S.V. and K. at F.C.’s home. He picked up his daughter K. and swung her around and said in jest that he was going to throw her out the window. He then picked up S.V. and began to swing her around. As he was swinging her, he put his hand inside her panties and felt her vagina. Prior to that moment, she had been laughing because she found the swinging to be funny but as soon as he felt her vagina, she stopped laughing and she squirmed to get out of his grasp. F.C. was laughing during this episode. This incident occurred when she was about five or six years old and the swimming incident when she was about ten years old. It was after the swimming incident that she told her mother. No charges were laid for reasons irrelevant to this hearing.

[12] Having heard and assessed the testimony of S.V. and there being no evidence to the contrary offered, I am satisfied beyond a reasonable doubt that the incidents related by S.V. occurred and that F.C. sexually assaulted S.V. and indecently exposed himself to her. The incident at Lac des Loups occurred in May 2012 and the swinging incident would have occurred in the years 2005 or 2006.

Indecent Exposure

[13] On August 1, 1990, F.C. was convicted of indecently exposing himself in the vicinity of an elementary school.

Other Offences

[14] F.C. has a very spotty driving record. He has 13 convictions between 1968 and 2015, including numerous tickets for speeding, failing to produce a driver’s license, failing to have insurance and failure to pay fines. His license has been suspended on numerous occasions.

[15] He has admitted to probation authorities that when he was young, he would regularly break and enter into cottages nearby his house in order to steal fishing and hunting paraphernalia.

[16] In June 1991, he was stopped for appearing suspicious, and it was noted that he had several pornographic publications in his vehicle.

[17] On another occasion, during 1991, he was found to be siphoning gas from vehicles.

[18] In 1996, F.C. pled guilty to eight counts of break and enter and two counts of mischief. There is no indication on file as to what sentence was imposed.

[19] F.C. has had a troubled relationship with his older brother, D.C. D.C. had been interviewed by Ottawa Police and informed them that there were a number of incidents that concerned him about F.C.’s behaviour, including the fact that on one occasion, F.C. was masturbating while watching girls getting dressed in their bedroom in a home situated nearby. The girls noticed this and began screaming. F.C. ran away, chased by his brother. F.C. would have been in his mid-twenties when this occurred.

[20] On another occasion, F.C. exposed himself to a young woman at a restaurant in 1988 or 1989. D.C. indicated that when F.C. was young, he was caught stealing women’s underwear off a clothes line from a local neighbour.

[21] D.C. was not surprised to learn that his brother had been charged with sexually assaulting a child. He also told the police, and repeated it during his viva voce testimony at the sentencing hearing, that since he was very young, F.C. has been addicted to alcohol and marijuana, including driving under the influence of alcohol with his daughter in his car. D.C. believes that his brother F.C. “needs psychological help.”

The Offender

Pre-Sentence Report of May 20, 2013

[22] In preparing for F.C.’s sentence for sexually assaulting G.L., probation officer Ross MacIntosh prepared a pre-sentence report. This gives some insight into the history and character of F.C.

[23] F.C. acknowledged that he had been stealing from neighbours between the ages of 16 to 18 and “hanging out with the wrong crowd.” His mother finally removed him from the family home.

[24] He stated he enjoyed an excellent relationship with his wife and daughter, calling his daughter “my little shadow.” His wife, L.C., stated that F.C. had never been violent with them and that “he can get mad quickly but only verbally.”

[25] F.C.’s mother was interviewed and described her son as a social drinker, but she had never seen him drunk. She stated that the whole family supports him and believes he is not guilty.

[26] F.C.’s younger sister was interviewed and noted that she had never been concerned about F.C. being around children and was not worried about her brother’s drinking.

[27] His brother D.C. had a very different view and told the probation officer that F.C. had been drinking and driving all of his life and getting away with it, often with his daughter in the car with him. He stated that F.C. had been using marijuana since he was a kid, had promised to quit but never did. He stated that F.C. was never left alone with any children for any reason, because he is not trusted. D.C. expressed frustration that his mother and sister were not forthcoming about issues that were well known within the family unit relating to F.C.

[28] He stated that F.C. was dismissive about the court process and told D.C. that he did not have to follow the bail conditions. He told the probation officer that F.C. should go to jail for the offence, that he should not be allowed to hang out around young people, and that he needed to get counselling.

[29] F.C.’s employer described F.C. as good and dependable employee.

[30] F.C. was interviewed and agreed that he had been a heavy drinker from age 18, consuming 24 beers a week at home and then going to the bar and having another 6 to 15 drinks on weekends. He stated that he had been reducing his alcohol consumption after his daughter was born. He also admitted to using marijuana beginning at age 15, sharing a few grams a week with friends. By age 20, he was using marijuana at a much higher rate, consuming 25 to 30 “joints” a week, but by age 30, he had cut down his use, because he was having difficulty breathing and was suffering from a lack of energy. He told the probation officer that for the last 12 years, he had only been smoking one to two grams per week.

[31] Mr. MacIntosh noted that F.C. had contradicted himself, because at another point he denied using marijuana. Mr. MacIntosh also pointed out that F.C.’s wife, L.C., stated that F.C. had a few joints per week and that he “still needs marijuana so he can calm down and relax at night.”

[32] F.C. maintained his innocence and denied sexually touching any child. He blamed the child’s parents for putting her up to creating a false story.

[33] The pre-sentence report also noted that F.C. expressed no remorse for his actions. F.C. has limited education and his work history as an entry level maintenance worker is seasonal.

[34] As was noted earlier, F.C. was sentenced to 13 months in prison and three years’ probation. He was convicted for breach of probation and pled guilty before Fournier J. of the Ontario Court of Justice on August 17, 2012, for being away from his place of residence without his surety.

Section 21 Assessment, Royal Ottawa Mental Health Centre

[35] In anticipation of the sentence, Wright J. also required F.C. to be assessed by the Sexual Behaviours Unit at the Royal Ottawa Mental Health Centre, where he was examined by Dr. Jonathan Gray, a forensic psychiatrist.

[36] During his interview with Dr. Gray, F.C. stated that he had only used marijuana occasionally since the age of 18, which completely contradicted what he told the probation officer, Mr. MacIntosh, in preparation for the pre-sentence report.

[37] He denied that he had ever been the victim of sexual abuse as a child. He stated that he first had sexual intercourse at the age of 28 with a 31 year old woman, who was his brother’s wife’s friend. He told Dr. Gray that they dated for about month and had intercourse every second night. He had another sexual partner when he was 33 years of age for a two to three month period. He stated that he met his current wife when he was 34 years of age, and they had been together for 14 years. He stated that these were the only three sexual partners he had had in his life. He told Dr. Gray that he was attracted to females aged 25 years and up and denied any sexual attraction to pubescent or pre-pubescent males or females.

[38] F.C. underwent phallometric testing, which indicated just slight arousal beyond the cut off for significant arousal to an audio tape depicting sexual sadism involving a young girl. Dr. Gray did not find this to be significant and ultimately determined that F.C.’s actual risk of sexual violent re-offence was low, based on the absence of any known prior sexual offences or any prior criminal record. It should be noted that Dr. Gray was completely unaware of the sexual assault upon A.L. that occurred in 1997.

Assessment of F.C. by Dr. Elizabeth Coleman

[39] Dr. Elizabeth Coleman is a medical doctor with a specialty in psychiatry and a sub- speciality in forensic psychiatry. She is a Fellow of the Royal College of Physicians and Surgeons of Canada in both Forensic Psychiatry and General Psychiatry. She is an Assistant Professor in the Department of Psychiatry at the University of Toronto and has been involved in intensive forensic work for the past ten years. She is currently an attending physician in the Forensic Department at Ontario Shores Centre for Mental Health Sciences. She is a member of the Ontario Review Board. Her C.V. evidences that she was the recipient of numerous scholarships during the course of her education, and has made presentations with respect to the assessment of risk in the area of forensic psychiatry. Her qualifications as an expert in forensic psychiatry were not challenged.

[40] As a result of my Order made pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46, Dr. Coleman undertook an assessment of F.C. She met with F.C. at the Toronto South Detention Centre on December 5 and 15, 2015, for a total interview time of approximately nine hours. She was also able to speak with F.C.’s father and wife, L.C., on two occasions. Dr. Coleman had available to her all material relating to F.C., which constituted 3,084 electronic pages.

[41] Dr. Coleman obtained F.C.’s account of his personal history, much of which contradicted the account he had given to the probation officer, Mr. MacIntosh, and Dr. Gray in the preparation of the pre-sentence report and s. 21 assessment for the sexual assault of G.L. in preparation for the sentence before Wright J. in 2015.

[42] F.C. told Dr. Coleman that his brother physically abused him from the age of 9 or 10 onwards until he was 20 years of age.

[43] He told Dr. Coleman that he suffered four years of ongoing sexual assault from his best friend’s brother. The perpetrator was ten years older than him and the assaults occurred when he was at his best friend’s home. The perpetrator was using crack cocaine and forced F.C. to give him “blow jobs.” This abuse occurred every second night or during the day every few days over a period of four years.

[44] It may be recalled that he informed Dr. Gray that he had never been the victim of sexual abuse as a child.

[45] As mentioned, F.C.’s work history is essentially seasonal. He has done odd jobs, including working as a dishwasher, a grill cook, a car jockey, and some construction. Most recently, he has been employed as a “gopher” for John Sweeping in Ottawa.

[46] He informed Dr. Coleman that he had had five serious relationships, including his wife whom he was in the process of divorcing. He reported that his first serious relationship was with “Tracy” when he was 19 years of age and she was 18. He reported that the relationship lasted three years. He told Dr. Coleman that his next serious relationship was with “Rose” when he was 21 and she was in her 30s. This relationship lasted for ten years. He told Dr. Coleman that at the age of 23, he was in a serious relationship with “Claudette”, who was four to five years his senior. Theirs was an open relationship and they were permitted to have sexual relations with others. The material does not disclose how long this relationship lasted. He told Dr. Coleman that his next serious relationship was when he was age 28 with “Dally”, whom he met through his sister in-law. Dally was not much older than he was. This relationship lasted for one and a half years. He then met his wife, L.C., when he was 31 years of age; she is five years his senior. Together they had a daughter, K., who is now 18 years of age. His wife, L.C., also has a daughter from a previous relationship who is now in her 30s.

[47] It is apparent that this history of relationships given to Dr. Coleman seriously contradicts that given to Dr. Gray. It may be recalled that F.C. told Dr. Gray that he first had sexual intercourse at the age of 28 with a 31-year-old woman, who was his brother’s wife’s friend and that they dated for only about a month. He had another sexual partner in the context of a two to three month relationship when he was 33 years of age then met his current wife, L.C., when he was 34 years of age and that they had been together for 14 years.

[48] It was admitted during the sentence hearing that F.C.’s brother, D.C, recalled his wife introducing F.C. to a woman named “Dally” many years ago. However, D.C. stated that it was not true that F.C. and Dally had been in a serious relationship of one to two years. F.C. advised that he met Dally when he was 28 years old and that he sex with her about ten times. He admitted that the sister in-law may not have known that fact.

[49] “Claudette” was interviewed by police and stated that she knew F.C. and had been friendly with him sometime in the 1990s, but at no time did they have a sexual relationship.

[50] Suffice it to say, there are serious contradictions with respect to F.C.’s self-reporting his relationships with females. I would conclude that he lied about his relationships with adult females to convince Dr. Coleman he was not attracted to female children.

[51] Dr. Coleman asked F.C. whether he would be prepared to engage in sexual drive reducing medication. He told her that he would only be willing to engage in talking therapy but not take medication, as “it can screw your body up.”

[52] During the course of the sentencing hearing, Dr. Coleman was invited to have a brief interview with F.C. during the lunch break. During that interview, F.C. indicated that he would be willing to take sex drive reducing medication and anti-alcohol medication. He expressed the hope that he could still have “sex with his wife.” I found this to be an odd statement given that his wife is divorcing him and has no intention of reconciling, which F.C. admitted at the sentencing hearing.

[53] With respect to alcohol and drug use, F.C. told Dr. Coleman that he had first consumed alcohol at age 16, and then drank occasionally from the age of 17 to 20, approximately once weekly. At age 20, he would drink two quarts and a pint, and had gin once in a while. Prior to his incarceration, he was drinking a case of 24 beers over a one week period. He denied drinking and driving. He told Dr. Coleman that he first used cannabis at age 13, smoking with friends. He liked the effect and started using it regularly between the ages of 13 to 16, until his parents found out and asked him to discontinue use, which he did. He started using cannabis again at beach parties and was using one gram daily between the ages of 13 to 17 and then stopped using it altogether when he met his wife L.C. He reported that he had only used cannabis once or twice since then. He told Dr. Coleman that he would refuse to take any anti-alcohol medication.

[54] This report regarding alcohol and drug use stands in stark contrast to what he told the probation officer, Mr. MacIntosh. It will be recalled that F.C. told Mr. MacIntosh that he began drinking at the age of 12, was used to it by the age of 18, and over the next seven years would consume 24 beers a week at home and would go to the bar and have another 6 to 15 drinks on weekends. He told Mr. MacIntosh that he reduced his consumption only after his daughter was born and that he now had only one beer a night. He also drank up to 12 beers each weekend.

[55] With respect to marijuana, he told Mr. MacIntosh that he first used marijuana at age 15 and by the time he was 20, he was smoking between 25 to 30 joints each week, but by age 30 he cut down his smoking level to due to low energy and breathing difficulties. Over the next 12 years, he was smoking one to two grams of marijuana a week. He told Mr. MacIntosh that he had quit using marijuana altogether for two and a half years prior to May 2013. In a subsequent telephone conversation, he told Mr. MacIntosh that he still smoked a few joints a week. Mr. MacIntosh noted this was “a clear contradiction with past assertions of substance abstinence.” As mentioned above, L.C. told Mr. MacIntosh that F.C. “still needs marijuana so he can call down and relax at night,” and that F.C. was a heavy drinker when they met and he was doing drugs. His drinking stopped after she asked him to, but his drug use continued. She was aware, however, that he would drink on occasion, and “used pot daily.”

[56] Dr. Coleman found that F.C. also suffered from both an alcohol and cannabis use disorder, at least to a mild degree in sustained remission in a controlled environment, because he has been in custody since his arrest on October 3, 2013.

[57] With respect to the mental status examination, Dr. Coleman saw no evidence of psychosis. F.C.’s insight into his legal predicament was limited. F.C. presented as being of average or slightly below average intelligence. He was unfamiliar with some of Dr. Coleman’s vocabulary and simple language had to be used throughout the interview.

Phallometric Testing

[58] F.C. participated in phallometric testing at the Centre of Addiction and Mental Health (“CAMH”). The results show that F.C.’s phallometric results were indicative of pedeohebephilia (an erotic preference for pubescent and pre-pubescent children).

[59] Dr. Coleman concluded that F.C. is a pedophile. The evidence has established that pedophilia cannot be cured.

[60] F.C.’s sexual offending against young children has been noted with a least a span of greater than ten years and would indicate an intense and persistent sexual interest in pubescent and pre-pubescent children. Furthermore, F.C. has acted on these sexual urges on at least three occasions, causing harm to his victims.

[61] Dr. Coleman testified that the fact that F.C. is a pedophile does not mean that he is incapable of sex with age appropriate women. In fact, his testing revealed that he did have an interest in age appropriate women. Unfortunately, his proclivity for sexual contact with children cannot be expected to remit. Furthermore, the presence of alcohol or substance abuse tends to reduce the ability to resist acting out on his aberrant sexual drives.

[62] Treatment for individuals with pedophilia involves psychological and, at times, pharmacological intervention. Psychological treatment for individuals suffering from sexual deviance generally takes the form of cognitive behavioural therapy along with a relapse prevention model, which may be administered in an individual or group format. Generally, individuals will engage in treatment over several months and then may have follow up treatment on a life-long basis.

[63] Pharmacological treatment of pedophilia involves the use of sexual drive reduction medication. This medication, which may be administered orally or by long acting intramuscular injection, permits for various degrees of chemical castration. An individual’s sex drive is thus reduced and accordingly, their likelihood of acting on deviant sexual impulses is significantly reduced. It also decreases non-deviant sexual impulses. These forms of treatments must be supplemented with other treatments as required to address issues of anxiety, unemployment, poor social skills, loneliness, and substance abuse.

[64] Dr. Coleman found that F.C. meets the criteria for a diagnosis of anti-social personality disorder. Individuals with anti-social personality disorder may repeatedly perform acts that are grounds for arrest, whether arrested or not, such as theft, harassing others, or pursuing illegal occupations. They tend to disregard the rights, wishes, or feelings of others and may be deceitful or manipulative to obtain, for example, money, sex, or power. They may repeatedly lie, use an alias or “con” others. Decisions tend to be made without forethought and without consideration of the consequences to themselves, or others. This may lead to sudden changes of job, residences, or relationships. They may engage in sexual behaviour and substance abuse that has a higher risk of harmful consequences. F.C. has abused and has been dependent on alcohol and cannabis. He meets the criteria for a diagnosis of pedeohebephilia and anti-social personality disorder.

[65] As stated earlier, Dr. Coleman is an expert in risk assessment. In that regard, she administered certain tests to F.C. that reveal deeply troubling information about F.C.

[66] The Psychopathy Checklist-Revised (PCL-R) is the gold standard of measurement for psychopathy. On this test, F.C. scored 19 out of a possible 40 points, which is a low score, suggesting that anti-social and psychopathic personality traits are not largely significant in his case.

[67] The SORAG, which measures the risk of violent recidivism in individuals with a history of offending placed F.C. in the 81^st^ percentile with respect to the reference or standardization sample. Similar scoring individuals recidivated violently or sexually at rates of 76% over ten years of opportunity in the community, with a corresponding risk of reoffending at 89%.

[68] STATIC 99-R testing placed F.C. in the high risk category for future sexual offending with a score that placed him in the 94^th^ percentile with respect to the reference or standardization sample. F.C. would be considered at 3.8 times the risk for sexually offending than the average sex offender.

[69] STATIC 2000-R testing placed him in the 99.7^th^ percentile with respect to the reference or standardization sample, which was 6.9 times the risk for sexual reoffending than the average sex offender.

[70] In addition to these findings, F.C. refuses to accept that he has a sexual problem and continues to deny culpability for all offences. Dr. Coleman stated that in her opinion,

Given the nature and density of this person’s criminal record, the persistence of his risk factors, his failure to accept responsibility for his sexual offence convictions, and his refusal to engage in risk mitigation strategies, from a purely psychiatric perspective, that this person has shown indifference to the reasonably foreseeable consequences of his behaviour.

[71] Dr. Coleman concluded her assessment by stating that, given the results of the testing, it was her opinion that F.C. “is likely to reoffend violently and most likely sexually,” and consequently would meet the criteria of being a dangerous offender.

[72] Dr. Coleman notes that despite his long period of incarceration, he has not received any treatment programming.

[73] In assessing whether F.C. could be found to be a long term offender, Dr. Coleman focused on whether F.C. may eventually, with the passage of time and treatment, present with “a reasonable possibility of eventual control of risk in the community.”

[74] The factors most salient to F.C.’s case include:

• An anti-social character structure;
• Serious substance abuse problems;
• Persistent defiance and anti-authority sentiments leading to difficulties with supervision;
• Lack of education, work, and social skills;
• Ongoing denial of responsibility for his offending behaviour;
• Lack of insight/or motivation to engage in changing his behaviour;
• Lack of pro-social avocational interests; and
• Non-acceptance of his sexological diagnosis.

[75] Dr. Coleman opined that F.C. clearly needs substance treatment and that some individuals with substance use and dependence are able to eventually overcome the condition with programming and time.

[76] Sadly, some never discontinue use of harmful substances. Dr. Coleman noted that F.C. has consistently returned to substance use over the years despite its interference with social relationships. When considering future response to treatment, one must consider previous responses. Dr. Coleman noted that F.C. has not been engaged in any treatment and is ambivalent to obtaining treatment in the future. Even considering his 11^th^ hour conversion to acceptance of sex drive reducing medication and alcohol dependence medication, Dr. Coleman was still not convinced that F.C. would be a likely candidate for successful treatment “but was not prepared to rule out the possibility.”

[77] She opined that because of F.C.’s anti-social personality disorder and because F.C.’s score on the psychopathy scale was low, he might be amenable to treatment. Moreover, many individuals with features of this disorder “burn out” over time with advancing age, usually in the 5^th^ or 6^th^ decade of life. However she was concerned that because F.C. had offended at such a late stage in life, the prognosis with regards to F.C.’s personality disorder is therefore “guarded.”

[78] Dr. Coleman noted that there is growing evidence for cognitive behaviour therapy in the treatment of personality disorder but treatment for personality disorder is challenging, as maladaptive traits are long-standing and resistant to change. She indicated that F.C. should receive sex offender treatment programming, including anger management, which are available in the federal penitentiary system and upon release, be required to undergo maintenance sex offender treatment programming over the long term. Given F.C.’s complete denial of his responsibility in regard to the index offences and previous sexual assault convictions, it would be reasonable and appropriate to expect F.C. to engage in such treatment “in perpetuity.”

[79] F.C. should also seriously consider sex drive reducing medication to manage any further sexual offending. He should not be permitted to have unsupervised contact with underage individuals and should be prohibited from attending at places where under aged persons may be reasonably expected to attend. His relationships, romantic or otherwise, should be subject to unimpeded scrutiny.

[80] Dr. Coleman noted that it is unclear whether intense supervision actually results in decreased rates of violent recidivism, although there is some data indicating a benefit in this regard. She noted that F.C. has a poor record of supervision and has repeatedly breached conditions of his release; indeed he has been convicted of failing to comply with his recognizance of bail.

[81] Dr. Coleman noted that there are few reasons for optimism that F.C. can be managed in the community upon the expiry of a long term supervision order, given his serious sexual offences, significant substance abuse disorder and the presence of anti-social personality disorder. She believed that F.C. is at substantial risk to reoffend with respect to a long term supervision order because he is presently 49 years of age. Thus, there will not be a significant decline in his risk to sexually offend for at least the next decade. She noted that over the age of 60, the following ten years tend to be associated with a significant decline and propensity for violent and sexual recidivism for age related reasons. However, she noted that despite the notion of age related decline and likelihood of re-offence, these more recent convictions of sexual offences would suggest that it is not a relevant consideration in F.C.’s case, given his history and present age.

[82] Finally, Dr. Coleman opined that given the absence of intensive treatment and in the absence of intensive supervision, it is not clear that she could reject the notion of “reasonable possibility of eventual control of the risk in the community.” Should a long term supervision order (“LTSO”) be considered, she recommended that, from the point of view of the protection of the public, F.C. be required to serve a further period of incarceration with treatment.

Which Dangerous Offender Regime Applies to F.C.?

[83] The fact that the index offence involving the sexual assault upon A.L. was committed in June 1997 raises the issue of which dangerous offender regime applies to F.C. At that time, the applicable section of the Criminal Code was s. 688, which gave the trier of fact two options, at the discretion of the court. The first was to find that an offender was dangerous as a result of which the offender would be jailed indefinitely. The second option was to impose a determinate sentence. If an offender was declared to be dangerous, the offender was entitled to a parole hearing three years following the time the offender was taken into custody. No long term offender provisions existed as an alternative to a declaration of being a dangerous offender. The Supreme Court of Canada required that the offender be “intractable” before being declared dangerous given the lack of any other sentencing options: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309.

[84] It is admitted by F.C.’s counsel, Ms. London-Weinstein, that on the facts of this case, F.C. would have met the test for intractability, given that he is an incurable pedophile and would have been declared a dangerous offender under s. 688.

[85] On August 1, 1997, the dangerous offender provisions were amended by the addition of a new category of long term offender, a mechanism that allowed the release of an offender into the community for supervision for a limited period after the expiry of a determinate sentence. The court retained a discretion as to whether the offender would be designated as a dangerous or long term offender or simply given a determinate sentence. A long term offender designation could be made if the evidence established that there was “a reasonable possibility of eventual control of the risk in the community.” The term of eligibility parole was extended from three years to seven years from the date of arrest.

[86] The legislation was again amended in 2008. Under the new legislation, an offender can be declared dangerous and sentenced to either an indeterminate sentence or a determinate sentence followed by a LTSO. However, an indeterminate sentence is presumptive in the absence of evidence introduced during the hearing that there is “a reasonable expectation that a lesser measure will adequately protect the public against the commission of murder or a serious personal injury offence.” Thus, the discretion of the trier of fact was removed and an indeterminate sentence must be given unless there is evidence adduced during the hearing that there is a reasonable expectation that a determinate sentence without a supervision order or an indeterminate sentence with a supervision order will adequately protect the public. The parole provision remains the same. The first opportunity for a parole hearing is seven years from the date of arrest.

[87] Section 11(i) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, provides that any person charged with an offence has the right, if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. This includes changes to the parole review system: Canada (Attorney General) v. Lewis, 2015 ONCA 379, leave to SCC refused, [2015] S.C.C.A. No. 325.

[88] F.C.’s parole eligibility must be governed by the 1997 provisions. F.C.’s eligibility of a parole hearing would be three years from his date of arrest being, October 3, 2013, or alternatively, from March 1, 2014, when the sentence for the sexual assault on G.L. expired, and he was kept in custody thereafter for the sexual assault on A.L. These dates have already passed. As a result, F.C. will be entitled to a parole hearing as soon as reasonably possible, and each two years thereafter.

[89] With respect to which dangerous offender regime is most favourable to F.C., I find that to be the regime in place from August 1, 1997, to the 2008 amendments, because that regime permitted a determinate sentence to be followed by a LTSO and a LTSO could be ordered in circumstances where there was “a reasonable possibility of an eventual control of the risk in the community.” This is a less onerous standard than the current legislation which provides that “there is a reasonable expectation that a lesser measure will adequately protect the public against the commission of murder or a serious personal injury offence. I find that the use of the words of “between” found in s. 11(i) of the Charter, embrace the period between August 1, 1997, and the change in the legislation in 2008: R. v. Bent, 2017 ONSC 3189.

[90] The bases upon which an offender may be found to be a dangerous offender have not changed in any material way. In this case, the Crown seeks to have F.C. declared a dangerous offender pursuant to s. 753(1)(a)(i), namely that he has been convicted of a serious personal injury offence, sexual assault being such an offence, 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 a pattern of repetitive behaviour by the offender, of which the offence of which he has been convicted forms a part, showing a failure to restrain his 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 behaviour; and/or s. 753 (1)(b), namely that he has been convicted of a serious personal injury offence, in this case being sexual assault, and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted of, has shown a failure to control his sexual impulses and a likelihood of causing injury, pain, or other evil to other persons through failure in the future to control his sexual impulses.

Whether the Evidence Establishes a Pattern of Repeating Behaviour and the Likelihood of Causing Injury or Inflicting Severe Psychological Damage – s. 753(1)(a)(i)

[91] The first requirement, namely that of being convicted of a serious personal injury offence, has been proven because the offences are all of sexual assault, and in the case of A.L. include forcible confinement and uttering death threats. This requirement is conceded by Ms. London-Weinstein on behalf of F.C. In her factum, she stated:

The offences for which Mr. C. has been convicted are hard to stomach, frankly. The court’s reasons for decision in the case of the victim A.L. accurately reflect the craven nature of the attack on a vulnerable child by a pedophilic adult man in a public park. The terror instilled in this child continues to handicap her in significant ways some two decades hence….In Mr. C’s case, his predicate offence, although very dated, involved threats of violence and a terrifying attack on a vulnerable child….She was told Mr. C. had a gun and she was brutally attacked, including being forced to take Mr. C’s penis in her mouth. The circumstances of the offence are highly aggravating. Her victim impact statement reverberates trauma echoing through two decades and continuing to cause her pain.

[92] Once again, Ms. London-Weinstein, in her highly professional manner, essentially agreed that there was such a pattern. She stated:

If the court is satisfied beyond a reasonable doubt of the guilt of Mr. C. in relation to the S.V. uncharged offence, section 753 (1)(a)(i) or (b) would all seem to be applicable as supporting a dangerous offender designation…The singular issue for determination is whether there is a reasonable possibility of eventual control in the risk of the community.

[93] In my view, there is no doubt whatsoever that there has been a pattern of repetitive behaviour, including the uncharged offence involving S.V., which constituted an indecent act involving the exposure of his genitals at Lac des Loups, and sexual interference by digitally penetrating S.V.’s vagina. Effectively, F.C. now has been found guilty of sexual offences involving three victims, all of which reflect a pattern the exploitation of young, isolated vulnerable victims. All involved pre-pubescent and pubescent girls: G.L, at approximately age 5, A.L. at age 11, and S.V. at ages 5 and 10. All victims were vulnerable. A.L. was travelling alone at a park at dusk, G.L. was in a position of trust, as F.C. was her step grandfather, and S.V. was in a position of trust, as F.C. was her babysitter’s husband. All involve exposure of his genitalia. Two of the three sets of offences involve him performing cunnilingus on his victims, being A.L. and G.L. All offences involve F.C. touching the victims’ vaginas. Two of the offences involve F.C. coercing his victims. In G.L.’s case, he lured her into his bedroom, locked the door and spread peanut butter on her vagina and licked her vaginal area on at least one occasion. In the case of G.L., the offender closed the door, “so that no one would know.” In A.L.’s case, the offender forced her into the bushes with his hand over his mouth and threatened to kill her saying that he had a gun. All three sets of offences were brazen and took place with other people in close proximity. In S.V.’s case, F.C.’s daughter was present on the dock with her back turned while jumping into the water as he exposed his genitals to S.V. The same daughter was present in the room or in the area when he digitally penetrated S.V. after putting his hands in her underpants. In G.L.’s case, her grandmother was downstairs on the computer. In A.L.’s case, she was travelling through a well-used park in a densely populated urban area on a summer evening. There were many people out and one witness was walking her dog in the immediate area while the attack was occurring.

[94] The repetitive pattern of offending has spanned a period of over 15 years from 1997 to 2012. Indeed, the 1990 indecent act, which occurred at an elementary school, might be regarded as being part of this pattern, stretching the timeframe to 21 years. In all cases, he offended against children. This pattern and his psychiatric diagnosis demonstrate the likelihood that he will cause injury or psychological damage to others through a future failure to restrain his behaviour. The assessment of Dr. Coleman places him at a very high risk of sexual recidivism.

[95] Turning to the issue of likelihood of causing injury or severe psychological damage, and based on the submission of Ms. London-Weinstein, it would appear that this element has been conceded. I regard this as a wise concession, given the circumstances of the cases and the victim impact statements.

[96] The victim impact statements evidence severe psychological damage, in particular to A.L.

[97] S.V. testified that during the indecent act at Lac des Loups, she was “worried and scared.” In relation to the genital penetration into her vagina, she felt very “uncomfortable.” She never expected that to happen at her babysitter’s house. When asked whether still thinks of the incidents at age 16, she replied, “oh yeah, I think about it two or three times a month.” She stated that it makes her feel “sick and sad” and that it has continued to impact her life because she is much more careful towards men and does not trust them. She believes that when she is older, she will have a problem leaving her children alone with men. While testifying in relation to the effects on her, she became emotional and began to cry.

[98] In her victim impact statement, G.L. stated that she is “sad” about what happened to her at the hands of her grandfather. She drew a picture that indicated, “Here I am in my bedroom and I am sad. Every time that I have fear, my hair stands up.” G.L’s mother indicated that the emotional impact on G.L. was profound and she herself required treatment for anxiety and depression, requiring hospitalization and medication. She felt overwhelming guilt that she failed her daughter. She has terrible memories about bringing her daughter to CHEO for a sexual assault examination and the countless visits to CHEO for her daughter’s therapy and her own therapy, her daughter’s loss of innocence and trust in people, the nightmares her daughter suffers and the loss of her daughter’s grandmother, L.C., and her aunt, because they sided with F.C. throughout the prosecution of the charges. G.L.’s mother had to take sick leave for two months and was eventually fired when she wished her sick leave to be extended, which led to financial problems. She also gained substantial weight due to being at home and out of work.

[99] D.L., G.L.’s father, stated that this was the most awful thing that happened and it was difficult to watch his daughter fight such a battle. The battle was an adult one that lasted a year and a half. He felt misery watching F.C. take the stand and accuse his daughter of lying, feeling that his daughter was being blamed. The memories cannot be erased from his mind. He also feels his daughter has received a life sentence by being tainted as a liar.

[100] The victim impact statement of A.L. evidences extremely severe trauma. She has had to be concerned about her own emotional state, as well as dealing with her mother’s, up to the present time. She had to undergo a sexual assault examination at the hospital. She was traumatized by being bullied after children at her school found out that she had been attacked sexually, and she was accused of lying and exaggerating. This trauma led to a long and unhealthy dependence on alcohol and marijuana. She attempted suicide at age 18 in the very park where F.C. attacked her. She was hospitalized and had to see a psychiatrist and was under psychological care for most of her 20s. She worked for five years exhaustively at healing her grief, anger, and fear and “not having a smooth time of it.” She has overdosed three times, twice during the years soon after the charges were laid. She was consuming alcohol daily, which finally stopped through therapy.

[101] A.L. has ongoing anxiety, panic attacks, and fear of the dark. She has ongoing problems maintaining employment. She has difficulty having normal sex. She blames herself and has persistent feelings of doom.

[102] A.L. remembers the paralyzing fear at the moment F.C. accosted her and exposed his penis. She has had physical manifestations of that fear, including “feeling it in my chest every day for the last 20 years.” She has an inability to sleep, particularly after learning he victimized other little girls. She feels guilt over the fact that F.C. was not caught sooner. She has had nightmares increasing in frequency after the charges were laid. She has spent approximately $10,000.00 on therapy. She has fear and anxiety about the safety of her 11-year-old daughter.

[103] The victim impact statement of M.P., A.L.’s husband, reveals that A.L.’s emotional state often has an effect on their ability to interact with friends and relatives. A.L. is often exhausted and withdrawn. She has difficulties with intimacy, both emotional and physical. They both had difficulties professionally because of the many missed days due to attending court. M.P. has restless nights and anxiety. He has had to take A.L. to the hospital on more than one occasion because of drug overdoses. There have been prolonged periods when A.L. has been in the hospital, creating stress and worry and financial difficulties. He has also fears for the security of their daughter.

[104] The physical and emotional trauma suffered by A.L. alone, independent of the other victims, demonstrates beyond doubt the likelihood of F.C. causing injury or inflicting severe psychological damage to another a victim.

Whether there is a Failure to Control Sexual Impulse and Likelihood of Causing Injury, Pain or Other Evil – s. 753 (1)(b)

[105] Using this alternate route, the Crown must prove that the offender has been convicted of a serious personal injury offence, which is not disputed, and that the offender, by his conduct in any sexual matter, including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and the likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

[106] Given all the evidence in the case, it is clear that F.C. has failed to control his sexual impulses, including that he committed an indecent act on the grounds of an elementary school and the evidence of D.C. that F.C. failed to control his sexual impulses many years previous when he was caught masturbating watching young girls who lived across the street who were changing their clothes.

[107] The facts in this case point clearly to the likelihood of causing injury or pain to other individuals. As to the term “evil”, in R. v. Dwyer (1977), 1977 ALTASCAD 63, 3 A.R. 96 (Alta S.C. (A.D.)), the court stated that the term “evil” is generally understood to promote “moral badness or depravity.” The court held that the offender, a non-violent pedophile, would likely cause evil to young boys through acts of indecent assault and gross indecency.

[108] The evidence in this case clearly shows that F.C. would likely cause evil to pre-pubescent and pubescent girls through acts of sexual assault.

[109] In conclusion, the Crown has satisfied their onus under both routes, and F.C. meets the criteria of a dangerous offender.

Assessment of F.C.’s Risk to the Community

The Submissions of the Defence

[110] In her fair and balanced submission, Ms. London-Weinstein submits that there is a reasonable possibility of eventual control of the risk F.C. poses to the community and suggests the imposition of a penitentiary term of ten years, followed by a ten year LTSO. In outlining the offences, Ms. London-Weinstein stated,

In Mr. C’s case, his predicate offence, although very dated, involves threats of violence and a terrifying attack on a vulnerable child whose parents had separated which required her to move between them. On the night of the offence, she was trying to get out of her mom’s way for a while as her mom was packing and so she was biking to her father’s house just across Hampton Park. She was told Mr. C. had a gun and she was brutally attacked, including being forced to take Mr. C.’s penis in her mouth. The circumstances of the offence are highly aggravating. Her victim impact statement reverberates with trauma echoing through two decades and continuing to cause her pain. Further, while Mr. C. is entitled to a trial, he chose to take the stand and proffer a story which defied all logic. The victim, now a young woman who has attended court frequently in these proceedings, had to endure cross-examination at trial in the face of a case with DNA and improbable defence. Further, while he has already been sentenced for the offence against G.L., his step granddaughter, the facts of that case cry out for the need for sufficient time in a federal institution as to allow him to receive sufficient therapy, and to segregate him from the public for a sufficient period of time that his risk is reduced. Further, the offence against S.V. was a violation of a young girl who had been placed in his spouse’s care by a single mother who had to work long hours. The trust aspect in relation to this offence speaks to a callous lack of insight.

[111] Ms. London-Weinstein relies on the evidence of witnesses from the Correctional Services of Canada and the Canada Parole Board.

[112] Angela Haydon is a parole officer trained to give evidence on behalf of Correctional Services of Canada (“CSC”). She testified as to the revised approach regarding programming for prisoners, which focuses on an integrated program, allowing inmates speedier access to therapy rather than being forced to wait for programming. There are programs tailored to F.C.’s needs, including therapy for those who deny their offences, therapy for pedophiles, therapy for those who abuse alcohol and drugs, and therapy for individuals who suffer from cognitive deficits.

[113] All half-way houses must meet specific expectations with respect to staffing, check-ins and compliance with threat risk assessment procedures. Qualifying to win a contract with a community based half way house is a lengthy and rigorous process. The half-way houses are audited on a frequent basis to ensure they meet CSC compliance standards. They are secure. Half-way houses operated by private companies are the same as those owned by CSC. Screening is available for alcohol and marijuana use on a regular basis.

[114] When an individual is on long term supervision, there is no limit to the number of “anticipatory breaches” that can be imposed upon an offender by a parole officer, in the event that the parole officer is concerned that an offender might breach the conditions of his LTSO. Ankle bracelets may be used for sex offenders and programmed with the addresses of parks, pools and areas where children may reasonably expect to be located. The correctional plan is continually updated over the course of the offender’s time in custody.

[115] Karen Thompson is the Acting Regional Manager for the Conditional Release Program for the Parole Board of Canada covering the Ontario and Nunavut Regions. She stressed that the protection of society is the paramount consideration for members of the Board. Correctional plans relating to offenders are continually updated during the time an offender is the correctional system. The dangerous offenders who have been sentenced to an indeterminate sentence may only be released into the community on a conditional or earned release and an offender can only be released on day parole or full parole after a full panel hearing. Conditions can be drafted to control risk within the community. Residency conditions are imposed for 365 days and may be renewed if required after that. She agreed that an individual can be apprehended on a LTSO even if they have not breached a specific condition of an order. The person can be apprehended at any time if it appeared that society was in need of protection.

[116] Ms. London-Weinstein relies on seminal case of R. v. Johnson, 2003 SCC 46, in which the Supreme Court determined that indeterminate detention of a dangerous offender regime is warranted only insofar as to serve the purpose of protecting the public. There may be circumstances in which an offender meets the statutory criteria for a dangerous offender designation but the goal of protecting the public can be achieved without indeterminate detention. An interpretation of the dangerous offender provisions that would require a sentencing judge to declare an offender dangerous and sentence him to an indeterminate period of detention in each instance in which the statutory criteria for a dangerous offender designation had been satisfied would introduce an unnecessary rigidity into the process and “overshoot” the public’s protection purpose of the dangerous offender regime.

[117] The court must impose a just and fit sentence in the circumstances of the individual case. Dangerous offender proceedings form part of the sentencing process and the proposition that a court is under a duty to declare an offender dangerous in each circumstance in which the statutory criteria are satisfied is in direct conflict with the underlying principle that the sentence must be appropriate in the circumstances of the individual case. In each case, a sentencing judge must consider the possibility that the sanctions available pursuant to the long term offender provisions would be sufficient to achieve the objectives that the dangerous offender provisions seek to advance.

[118] A judge’s discretion whether to declare an offender dangerous must be guided by the relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code including the fundamental principle of proportionality, and the principle of restraint, which provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[119] The court must also be mindful of the recent Supreme Court of Canada decision in R. v. Boutilier, 2017 SCC 64, which held that the post-2008 dangerous offender scheme was constitutional and not overbroad, but that s. 753(1) does not preclude a sentencing judge from considering future pre-treatment prospects before designating an offender as dangerous. To obtain a designation of dangerous resulting from violent behaviour, the Crown must demonstrate beyond a reasonable doubt that the offender represents a threat to the life, safety or physical or mental well-being of other persons. Before designating a dangerous offender, a 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. Intractable conduct means behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness. All of the evidence induced during a dangerous offender hearing must be considered at both the designation and penalty stages of the sentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria.

[120] At the designation stage, treatability informs the decision on the threat imposed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. A prospective assessment of dangerousness ensures that only an offender who poses a tremendous future risk can be designated as dangerous and face the possibility of being sentenced to an indeterminate detention. A provision imposing an indeterminate detention is therefore not overbroad if it is carefully confined in its application to those habitual criminals who are dangerous to others.

[121] The Supreme Court in Boutilier repeated the holding in Johnson to the effect that the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2 of the Criminal Code apply to every sentencing decision, including the dangerous offender regime or the long term offender regime. Parliament is entitled to decide that the protection of the public is an enhanced sentencing objective for individuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others. Indeterminate detention is only one sentencing option among others available under s. 753(4). The sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme.

[122] Ms. London-Weinstein reiterated that the LTSO regime is strict and administered by the Parole Board of Canada and enforced through criminal sanctions and the Correctional and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”). Section 753.3(1) of the Criminal Code provides for an offence for breaching an LTSO with a maximum sentence of ten years of imprisonment. The failure to abide by any condition in a LTSO, including one requiring treatment, may result in suspension and apprehension pursuant to s. 135.1 of the CCRA.

[123] It is submitted that F.C.’s record is not an unduly violent nor is it lengthy, as is commonly seen in dangerous offender applications. His last conviction was on June 10, 2013, for sexual assault and sexual interference involving G.L. for which he received a 13 month sentence followed by 36 months’ probation. He was convicted for failing to comply with his probation on August 17, 2012, for being out after curfew without a surety.

[124] Ms. London-Weinstein submits that F.C.’s most recent offences involving G.L. and S.V. are less serious than the offences involving A.L. I am not convinced that this is so. While the assault involving A.L. was more aggressive than the assaults on G.L. and S.V., A.L. was 11 years of age. G.L. and S.V. were between 5 and 6. It might well be that the damage done to a 5 or 6 year old employing less aggressive means is just as serious as more aggressive means employed on an 11 year old. Only time will tell.

[125] After reviewing the case law, Ms. London-Weinstein submitted that given F.C.’s age, his willingness to try undertake talk therapy and sex drive reducing and anti-alcohol medication, and the existence of cognitive assistance programs for offenders like him with cognitive deficits, all fit within the regime of a long term offender designation. Although he is a pedophile, which cannot be cured, there are a number of pedophiles who have been designated as long term offenders.

[126] A profound lack of insight is common in the cases, as this is a common trait among pedophiles, at least prior to treatment. In F.C.’s case, although this lack of insight is definitely a negative in regards to risk, it is linked logically to the absence of any treatment thus far. The seriousness of his criminal acts has lessened over time. It is submitted that he should be given a lengthy period of incarceration in a federal institution with ample targeted programming, and then placed on a ten year LTSO, which would bring him closer to the drop off rate in recidivism which begins after age 60. It is suggested that parole be delayed until half the sentence is served together with other conditions that would protect the public.

The Submissions of the Crown

[127] On behalf of the Crown, Ms. Bramwell seeks an indeterminate sentence in the case of F.C. and argues that there is no reasonable possibility that his risk can be controlled, relying heavily on the evidence of Dr. Coleman. Dr. Coleman opined that F.C. clearly needs substance abuse treatment, and while he has not had substance abuse treatment in the past, he seems ambivalent to obtaining such treatment. He lacks insight into his problem with substances and the prognosis for treatment for his substance abuse was negative.

[128] Dr. Coleman testified that F.C. has anti-social personality disorder, but given relatively low psychopathy scores, he may be amenable to treatment. F.C. indicated he would be willing to engage in psychotherapy in an effort to manage his personality disorder. Treatment for personality disorders is, however, challenging and the disorder is considered long-standing and resistant to change, so any prognosis regarding this personal disorder is guarded.

[129] Dr. Coleman believes that F.C. should undergo sex offender treatment and maintenance programming after initial treatment is complete, and that it should be long term, given F.C.’s complete denial of his responsibility in relation to all offences that he has committed. Dr. Coleman was of the opinion that it would be reasonable and appropriate to expect F.C. to engage in treatment “in perpetuity” to support him in developing insight and formulate appropriate relapse prevention strategies.

[130] Dr. Coleman also believes that F.C. required sex drive reducing medication, which would be a key component to any sex offender treatment for F.C. Although F.C. indicated when he was interviewed originally that he would not take such medication, he changed that position when Dr. Coleman was in the middle of her evidence. It was made very clear to him when she interviewed on the first two occasions before preparing her report that she would be reporting to the court what the purpose of the report was.

[131] Ms. Bramwell submits that F.C.’s sudden reversal in position after hearing Dr. Coleman testify was nothing more than a self-serving, 11^th^ hour, “Hail Mary” attempt to manage the impression that the court will have of him and whether he could be trusted in the community. Even though the purpose of the meeting was to discuss this change of heart, he still expressed concerns about whether or not the medication would allow him “sex with his wife.” This is not only indicative of a lack of true motivation to do what it is necessary to change but provides further evidence of impression management tactics. F.C. is trying to play up the degree to which he is sexually interested in adult women. His wife is in the process of divorcing him and has no intention of reconciling, which is well known to F.C.

[132] On this point, I completely agree with Ms. Bramwell. F.C.’s report with respect to his relationship with adult women has been completely contradicted by some of the women themselves and, of course, the conduct that brought him before the court.

[133] Ms. Bramwell pointed out that with respect to sex drive reducing medication, Dr. Coleman testified that there may be barriers to the effect of the use of this medication even for the most motivated and remorseful offenders. Many offenders do not take it, and if they do, they often stop taking it. The ones that take it must be able to accurately and honestly report how they are feeling in order to monitor the appropriate dose. Even if the offender agrees to take the medication but then wants to stop, they are permitted to stop. The patient may change his mind at any time. While a LTSO may contain a condition directing the offender to take medication as required, such a condition does not mean the offender would or could be physically forced to take it. The doctor may not prescribe medication to someone against their will, and a doctor may be unable to prescribe medication if there is a contraindication. Although a patient may have provided a consent for a doctor to share information with the Parole Board, the patient can withdraw consent. Absent valid consent, the doctor would be unable to inform the Parole Board that the patient has discontinued taking medication. There are potential serious medical side effects associating with the long term use of sex drive medication. Some offenders can take pharmacological sex drive medication, but still respond and perform sexually. Finally, some pedophiles are not just driven by sex or testosterone levels, but by a psychological need.

[134] With respect to a condition that F.C. not attend locales where pre-pubescent and pubescent girls are present, there are significant problems in enforcing such a condition, particularly given the facts of F.C.’s offences. The offence against S.V. was in a setting that would be analogous to being supervised. His daughter was present on the same swimming area yet he managed to offend and not be detected. When he digitally penetrated S.V., his daughter was again present in his own home, a home for the daycare of children. The offence involving G.L. occurred in the same home, a daycare centre while his wife was downstairs.

[135] Ms. Bramwell submits that to supervise F.C. effectively, an adult would have to be in his presence for 24 hours a day, which is not feasible.

[136] Dr. Coleman testified that F.C.’s relationships, romantic or otherwise, should be subject to unimpeded scrutiny on the part of those involved in his supervision. Just as with ensuring he is not with left alone with children, compliance and enforcement is heavily reliant on accurate self-reporting by F.C., whose word cannot be trusted.

[137] In my opinion, F.C.’s history of self-reporting can only be described as acutely unreliable, when considering his many contradictory stories about his alcohol and drug use. The substantially different information he provided to Dr. Coleman about his substance use as compared to that given to Mr. MacIntosh, and to that of his wife, L.C., was all contradictory. He also gave different information to Dr. Gray and Dr. Coleman about his abuse as a child, his alcohol and drug use, and his relationships with women. These conflicting accounts have already been documented in these reasons, including the fact that F.C. told Dr. Gray he was only attracted to women 25 years and older.

[138] One simply never knows when F.C. is telling the truth. He did not tell the truth when he testified before me. He lied to the point of absurdity. With respect to the sexual assault on G.L., Wright J. did not believe the testimony of F.C. and said he was dishonest. His brother, D.C., testified that F.C. believed he could do whatever he wanted and had no regard for the court’s order. There is little reason to believe that were F.C. released into the community, he would honestly and accurately report his conduct to a parole officer.

[139] Dr. Coleman commented that there were few reasons for optimism that F.C. could be managed in the community upon the expiry of a LTSO, given his serious sexual offending, significant substance abuse disorder and the presence of anti-social personality disorder. “I believe that this gentleman is at substantial risk to reoffend with respect to a LTSO.”

[140] It is documented that as offenders age, they tend to mellow and become less violent. This fact is often invoked as in the present case as an argument in support of a long term offender designation as opposed to a dangerous offender. Ms. Bramwell submits that there must be evidence connected to the specific offender before an assumption of burn out can be made. There must be evidence specific to the offender that shows that he can be rehabilitated within a fixed period: R v. Higginbotton (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.).

[141] Dr. Coleman commented on the possibility that F.C.’s risk of sexually reoffending may decrease as he ages. She testified that the actuarial tool suggests that there is an age related decline in offending for all offenders, but that the decline is relative to the risk the offender posed in the first place. An offender who is a very high risk to reoffend, as F.C. is, would only potentially expire some moderation downwards in that very high risk, but the risk he posed would remain significant. She testified that any statistical decline and risk would be relative to his very high risk to reoffend and would only commence approximately ten years from now as F.C. approaches the age of 60. In her report, Dr. Coleman stated:

Despite the notion of age-related decline in likelihood of reoffence, I note that F.C. has more recent convictions for sexual offences compared to that of the index offence and this would suggest this is not a relevant consideration in F.C. at this present age, with his notable history.

[142] Ms. Bramwell argues that the court cannot be satisfied that there is a reasonable possibility of eventual control of the risk F.C. poses to the community and that mere hope or speculation that an offender is treatable is insufficient: R. v. B. (D.V.), 2010 ONCA 291, at paras. 55- 58; R. v. Lawson, 2015 ONSC 5315, at paras. 79-81.

[143] With respect to Ms. London-Weinstein’s suggestion that F.C. be sentenced to ten years in penitentiary credited with pre-sentence custody at 1 to 1, parole eligibility delayed until half the sentence has expired and a LTSO of ten years upon expiry would mean that because he has spent four years in custody, he would be sentenced to six years in the penitentiary and eligible to apply for parole in three years. This would mean he would be eligible to apply for day parole six months prior to that, being two and a half years. Statutory release for F.C. would be four years after his warrant expiry date and his warrant expiry date, when the ten year LTSO would commence, which would be in six years. The LTSO would end after 10 years or 16 years from this date, when F.C. is 65 years of age. At that point, the authorities would lose jurisdiction over him.

Conclusion

[144] Notwithstanding the persuasive submissions made by Ms. London-Weinstein, I have reluctantly come to the conclusion that there is no reasonable basis for believing that F.C.’s risk can eventually be controlled in the community.

[145] In R. v. K.O., 2013 ONSC 955, I made the following observations, in paras. 212 to 215, which are germane to this case:

212 Reasonable possibility of eventual control must be based on evidence, not a hope and a prayer: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.).

213 In R. v. Goforth, 2007 SKCA 144, 302 Sask.R. 265, the Saskatchewan Court of Appeal dealt with a LTO order made on the basis of a psychiatrist's opinion that because the offender had never taken any programs, it could not be concluded that there was no chance of any eventual control of the risk in the community. The trial judge, [2006] S.J. No. 445, relied on the psychiatric evidence and found that there was a possibility of eventual control in the community if the offender availed himself of treatment programs. The court of appeal overturned the holding and stated:

The line of analysis employed by Dr. Holden and the trial judge runs counter to a substantial body of appellate level case law. Section 753.1(1)(c) of the Code requires that, in order to warrant a long-term offender designation rather than a dangerous offender designation, there must be a reasonable possibility of eventual control in the community of the risk of reoffending posed by the offender. The authorities indicate that a "reasonable possibility", of necessity, must involve something more than hope or empty conjecture. In and of itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of reoffending. In other words, a dangerous offender designation is not contingent on a finding that the offender has absolutely no prospect of successful treatment while incarcerated.

214 In R. v. Walford, [2007] O.J. No. 744 (Sup. Ct.) it was held that a reasonable possibility of eventual control in the community requires a degree of realism in the proposed plan:

Where evidence about the effect of future treatment on the offender's risk of re-offending is subject to contingencies, and the evidence is unclear about whether there is a reasonable possibility of the contingencies being satisfied, the court may conclude that such evidence is no more than an expression of hope that future treatment will be effective.

215 The Goforth and Walford decisions are particularly germane to the opinion offered by Dr. Federoff that K.O. has not been given the benefit of individual and group therapy for sex offending, and affiliation with a program such as COSA. Dr. Federoff also testified that before he would rule out K.O. being designated a long term offender, he should have demonstrated failure in such programs. As was pointed out in Goforth, this line of reasoning runs counter to a substantial body of appellate case law which holds that the mere possibility that the offender might benefit from treatment is insufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of re-offending.

[146] There is simply nothing in the evidence in this case that can give the Court comfort that F.C. will respond positively to treatment. He is an inveterate liar and his every statement must be taken with a grain of salt. He is an intractable pedophile who has offended recently. Pedophiles are incurable. I have no reasonable basis to believe that given intensive programming, he would respond favourably and not pose a substantial risk to the community were he to be released on a LTSO. There is no evidence before me that would suggest F.C. is likely to respond positively to programs that will be offered to him. My task is to assess the reasonableness of controlling the potential harm F.C. poses to the community, which does not involve an exercise of rolling the dice.

[147] F.C. will be entitled to parole hearings on a regular basis. In the event he does respond positively to treatment, the Parole Board will no doubt permit him to be released at an appropriate time on appropriate conditions.

[148] In the result, on count number three, namely that he committed a sexual assault on A.L., contrary to s. 271 of the Criminal Code, F.C. will be sentenced to an indefinite term in the penitentiary. On the count of uttering a threat, contrary to s. 264.1(2) of the Criminal Code, he shall be sentenced to a term of five years concurrent to the indefinite sentence. On the count of unlawfully confining A.L., contrary to s. 279(2) of the Criminal Code, he shall be sentenced to a period of five years concurrent to the indefinite sentence.

[149] Since the date of the index offences was June 27, 1997, F.C. is eligible for parole three years from the date of his arrest. He was in custody serving the sentence for his sexual assault on G.L. When he was arrested for the sexual assault on A.L. that was October 11, 2013. The sentence involving G.L. expired March 1, 2014, and F.C. has been kept in custody since that time, which, using either date, exceeds three years. F.C. is entitled to an immediate parole hearing, and every two years thereafter. His pre-sentence time in custody shall be credited at one and a half days for each day served.

[150] In accordance with the provisions of s. 109 of the Criminal Code, F.C. shall be prohibited from possessing weapons for the remainder of his life.

[151] In accordance with the provisions of s. 490.013 of the Criminal Code, F.C. shall be required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for the remainder of his life.

[152] In accordance with s. 487.055(1) of the Criminal Code, a sample of F.C.’s DNA shall be obtained.

C.D.A. McKinnon J.

Released: February 1, 2018