COURT FILE NO.: CR-17-0019-00
DATE: 2018-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
R. R.
Respondent
T. Boisvert, for the Applicant
K. Matthews and A. Pollak, for the Respondent
HEARD: February 1 and March 29, 2018, at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
WARNING:
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons On Application
[1] On January 30, 2018, the respondent, R.R., was found guilty of two counts of sexual assault, contrary to s. 271 of the Criminal Code.
[2] On February 1, 2018, the Crown brought an application for an order pursuant to s. 752.1(1) of the Criminal Code, remanding R.R. for an assessment to be used on an application to have R.R. declared either a dangerous offender under s. 753 or a long-term offender under s. 753.1.
[3] R.R. did not consent to the application for an assessment.
[4] On September 14, 2018, I granted the application for an assessment, with written reasons to follow. These are those reasons.
Application for Remand for Assessment
[5] The framework for the court to determine whether an offender can be deemed to be a dangerous or long-term offender is set out in Part XXIV of the Criminal Code.
[6] Section 752 of the Criminal Code defines the types of offences that may give rise to a dangerous or long-term offender application.
[7] Section 752.1(1) of the Criminal Code provides that if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous or long-term offender, the court shall order an assessment for use as evidence in an application by the Crown to find the offender to be a dangerous or long-term offender.
Serious Personal Injury Offence
[8] R.R. was found guilty of two counts of sexual assault under s. 271 of the Criminal Code.
[9] Section 752 defines a “serious personal injury offence” to include an offence mentioned in s. 271.
[10] The convictions in this case are therefore serious personal injury offences within the definition of s. 752.
Dangerous Offender
[11] Section 753(1) provides that after an assessment report has been filed under s. 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied that 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) a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of causing death or injury or inflicting severe psychological damage through failure in the future to restrain his behaviour;
b) a pattern of persistent aggressive behaviour, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences of his behaviour; or
c) any behaviour, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural constraint;
d) the offender has been convicted of a serious personal injury offence and 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 a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
Long-Term Offender
[12] Section 753.1(1) provides that after an assessment report has been filed under s. 752.1(2), the court may find an offender to be a long-term offender if it is satisfied that:
a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
b) there is a substantial risk that the offender will reoffend; and
c) there is a reasonable possibility of eventual control of the risk in the community.
[13] The court shall be satisfied that there is a substantial risk that the offender will reoffend if:
a) he has been convicted of certain enumerated sexual offences, including sexual assault; and
b) he has shown a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, that shows a likelihood of him causing death or injury to other persons or inflicting severe psychological damage on other persons, or
c) by conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
Threshold Standard for Ordering Assessment
[14] The threshold for ordering an assessment under s. 752.1 is low. The Crown must show only that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1. In R. v. McArthur, [1997] O.J. No. 5146 (Gen. Div.), La Forme J., as he then was, stated at para. 20:
It is my opinion that on an application brought pursuant to s. 752.1 the only onus and burden of persuasion on the Crown is to satisfy the court that there are reasonable grounds to believe that the offender might be a dangerous offender. In other words, the question the court must answer is based on the circumstances and evidence, is it a logical conclusion that there is a possibility the offender might be found to be a dangerous offender? Moreover, as the test for an assessment does not involve any finding of fact that the offender is, at this stage, a dangerous offender, the onus on the Crown is not that which is expressed in either the criminal or civil standards of proof. Rather, in my view, it is simply this: is the court satisfied, after weighing and balancing all the relevant considerations, including the evidence, that the offender should be remanded for observation?
[15] In analyzing the wording of s. 752.1, the courts have discussed the word “might” in its context using the words “possibility,” “real possibility” or “reasonable suspicion.” See R. v. States 2015 ONSC 3265. Quigley J., at para. 51 of States, refers to the explanation by Roccamo J. in R. v. Vanderwal, 2010 ONSC 265, at para. 27:
Despite the different language employed by these courts… [i]t is universally agreed that the threshold is a low one. It is less than the civil burden of proof and far less than the criminal burden of proof. The language in section 752 requires the court to consider the totality of the record of evidence and information in support of the application to decide whether there are reasonable grounds to believe the offender might, not will, be found to be a dangerous offender or a long-term offender. To require any more at this stage of proceedings is to run the risk that a sentencing justice must come close to making findings on an incomplete body of evidence and without the benefit of the assessment proposed under section 752.1.
[16] The word “shall” in s. 752.1 is mandatory. As noted in R. v. States, at para. 57, (in describing how, prior to amendments to s. 752.1 in 2008, judges could exercise discretion to deny an assessment order),
…the present provision will only permit the assessment order to be denied where the judge concludes that there is no reasonable ground that the offender might be found to be a dangerous or long-term offender.
[17] In R. v. Norman 2014 ONSC 4769, at paras. 19-20, Goldstein J., in assessing whether the offender in that case met the criteria set out in paragraphs (i) or (ii) of s. 753(1)(a), broke down the test such that the evidence must show:
• Paragraph (i)
• a pattern of repetitive behaviour;
• a failure to restrain his or her behaviour; and
• a likelihood of causing death or injury or severe psychological damage through failure in the future to restrain himself.
• Paragraph (ii)
• a pattern of persistent aggressive behaviour;
• showing a substantial degree of indifference on the part of the offender;
• with respect to the foreseeable consequences to other people of his or her behaviour.
[18] Goldstein J. noted that the paragraphs were not mutually exclusive and that the section requires evaluation of the totality of the circumstances at each stage.
[19] In determining what constitutes a “pattern of repetitive behaviour”, Goldstein J., at para. 22, stated:
The pattern of repetitive behaviour, including the predicate offence, must contain “enough of the same unrestrained elements of dangerous conduct” to predict that the offender will likely re-offend the same way in the future. The offences do not, however, need to be the same in every detail.
Discussion
[20] R.R. is 58 years of age. His criminal record dates back to 1978 when he was 18 years of age. He has been convicted of more than 50 offences including property offences, breaches of court orders, drug and alcohol offences, sexual assaults and other assaults.
[21] In 1988, R.R. was convicted of sexual assault against his then wife and the mother of his child. She was 18 years of age. He was 28.
[22] In March 1992, R.R. was convicted of sexual assault on a 15 year old girl who was on the floor sleeping when she awoke to find R.R. performing oral sex on her. She screamed. R.R. pulled up his pants and left the apartment.
[23] On June 2, 2001, R.R. was arrested in relation to a sexual assault committed against L.W. in 1999. L.W. was the mother of some of his children. R.R. was found to have pushed L.W. down on a bed, held her down, pushed his hand inside her vagina and then had intercourse with her causing pain and discomfort. He later returned with another male, unknown to L.W., whom he instructed to have intercourse with her while he watched. On this conviction, R.R. was sentenced on March 1, 2002 to a penitentiary term of five years, consecutive to the sentence he was serving at the time for a possession of a scheduled substance for the purpose of trafficking.
[24] R.R. was convicted in January 2018 of the predicate offences of sexual assault on his daughter, B.W. The convictions relate to two separate incidents.
[25] The first offence occurred in 2011, when B.W. was 14 years of age. She and R.R. were in his truck. Before getting into the truck, she had been drinking alcohol. Her father said, “Let’s go for a ride to sober you up.” Before they went for a drive, R.R. came back with a cooler. Ms. W. had a slushy cup that R.R. filled to the top with the cooler. As they drove around Thunder Bay, B.W. was going in and out of blackouts. She awoke from her blackout in the passenger seat with her father’s right hand down her pants in her vagina. Her father was in the driver’s seat. She realized what was happening and immediately grabbed her father’s hand and pulled it out. The vehicle pulled over. She tried to run away. Her father pulled her toward the vehicle, put her in, slammed the door and they drove back home. Her next memory was waking up in her bed, dressed in her pajamas.
[26] The second offence occurred when B.W. was 18 years old. B.W. was at an apartment, partying with friends. She was intoxicated. R.R. came over to the apartment. B.W. ended up going for a ride with him in his car. They parked. R.R. had cocaine in a pouch. Both he and B.W. had some of the cocaine. She said it made her feel “really high and really drunk and really, like messed up”. She left the vehicle to urinate. She did not remember how she got into the vehicle. She was in the backseat. Her father pulled his pants down and pulled her pants down. She remembered looking up, seeing her father on top of her, sweating. His penis and her vagina were touching. She assumed his penis was inside her. She did not know how the incident stopped. She was in and out of a blackout. She got out of the car and was walking. Her father pulled over to the side of the road, yelling at her to get in. She got in the vehicle and was dropped off at her brother’s apartment.
[27] B.W. was the daughter of L.W., whom R.R. was convicted of sexually assaulting in 1999.
[28] In addition to these sexual assaults, R.R. has been convicted on three occasions of assault and on one occasion of assault causing bodily harm.
[29] While serving his penitentiary sentence for sexually assaulting L.W. in 1999, R.R. underwent a psychological assessment in 2002. The psychologists who authored the assessment stated:
R.R.’s antisocial traits are reflected in his pervasive pattern of disregard for and violation of the rights of others. This is manifested in his unlawful behaviour, deceitfulness, aggressiveness, irresponsibility and lack of remorse….
While the prediction of future violence remains highly speculative, R.R. is seen as posing a high risk of sexual re-offending and should be referred to the Clearwater program at RPS (Regional Psychiatric Centre).
[30] In response to this assessment, R.R. was admitted to the Clearwater Sex Offender Program in December 2003 and successfully completed the program in August 2004. The final report on his conclusion of the program stated that R.R. continued “to represent a moderate – high risk to re-offend sexually and/or violently.”
[31] In 2009. R.R. was sentence to two years in penitentiary. Upon his admission to Stoney Mountain, he was assessed by a psychologist. The psychologist concluded:
One had the impression in speaking with R.R. that he participated in this assessment as a formality, and that his attention is focused solely on a transfer to Rockwood Institution as that he can eventually leave jail once again and continue with his lifestyle. R.R. displayed little regret for his actions, failed to offer any understanding of the harm that he has caused to his family by virtue of his actions (in fact indicating that it may be positive for them), and in this way appears to be demonstrating a fairly cavalier attitude towards his current set of circumstances.
[32] R.R. was released on Statutory Release on February 18, 2011. The first sexual assault against B.W. was committed shortly after his release from penitentiary.
[33] On December 5, 2012, R.R. pleaded guilty to trafficking in a Scheduled substance on March 23, 2012 and breaching his bail order on August 28, 2012. He was sentenced to a two year penitentiary sentence in addition to approximately three months of pre-trial custody. The second sexual assault against B.W. was committed after his release from penitentiary on this charge.
[34] In a probation report dated April 10, 2017, in relation to a conviction for mischief to destroy property, R.R. was assessed as a high risk to re-offend. R.R. was reported as denying responsibility for his offences and appearing not to recognize the seriousness of his actions.
[35] Following his convictions on the predicate charges in January 2018, a Pre-Sentence Report was prepared for the purposes of R.R.’s sentencing. The author stated:
The subject is unable to express empathy and remorse for his actions. He views his involvement with the justice system as a lifelong imposition on his lifestyle. He exposes himself and others to harm, with the decisions he makes based on his value system. He appears to take a misogynistic attitude, evidenced by attempts at exploiting vulnerable women and convictions of sexual assault.
[36] The author of the Pre-Sentence Report was of the opinion “… that the subject is highly likely to re-offend.”
[37] R.R. was born on the Kiashke Zaaging Anishinaabek (Gull Bay) First Nation.
[38] In the Pre-Sentence Report Addendum dated March 22, 2018, the author of the report states that he was advised by the special counsel to the Chief and Counsel of Gull Bay First Nation that, on the authority of the Chief, R.R. was not welcome in the community due to the risk he posed to community members.
[39] A Gladue Report regarding R.R. was filed on September 12, 2018, prepared by the Thunder Bay Indigenous Friendship Centre.
[40] The Gladue Report indicates that R.R.’s mother attended St. Joseph’s Residential School in Thunder Bay until she was in her early teens. There was violence and alcohol abuse in R.R.’s family home as he grew up. R.R. disclosed that he had been sexually abused by a man working towards becoming a priest. He said that he turned to drinking all his life after that happened to him.
[41] R.R. left school in grade nine or ten and moved to a number of different communities. He disclosed to the Gladue worker that he abused alcohol and drugs and was known to get into fights. He explained that he has many children, some of long-term relationships, others unplanned. As to the unplanned pregnancies, he stated, “Not usually serious relationships. I ended up having a kid here and there. It wasn’t serious, just flings.”
[42] R.R. estimated to the Gladue worker that he has spent a total of approximately 15 years in jail.
[43] With respect to returning to Gull Bay, the Gladue writer advises that on September 5, 2018, she confirmed with the Chief that R.R. periodically returned to the community for events, family and work and that the Chief stated, “As long as he does his time he would be allowed back.”
[44] The Gladue writer states that for approximately 40 years R.R. used drugs and alcohol and that charges related thereto affected his life and behaviour and resulted in many years in and out of jail.
[45] The Gladue worker submits for the court’s consideration a number of culturally relevant programs that will provide a restorative function, as alternatives to incarceration, including cultural specific healing for men who abuse and are ready to take responsibility for their actions, an alcohol and drug program, residential treatment, counselling with a social worker, psychologists and a psychotherapist at a private counselling practice, a healing circle with an emphasis on holistic healing from substance misuse and addiction, and a cultural resource program and services through a Gladue Aftercare Worker.
[46] The description in the Gladue Report of programs which could provide alternatives to incarceration is thorough. However, in my view, with full consideration of the Gladue factors present in this case, it would not be appropriate to consider an alternative to incarceration for the two predicate sexual assaults, (a) given R.R.’s extensive criminal record, including convictions for three prior sexual assaults, the last of which resulted in a five year penitentiary sentence, and (b) given the nature of the two sexual assaults against his daughter.
[47] There is a pattern of repetitive behaviour, of which the two predicate offences form a part, containing similar unrestrained elements of dangerous conduct. In that pattern of behaviour, R.R. has shown a substantial degree of indifference respecting the reasonably foreseeable consequences to the victims of his sexual assaults. The psychological assessments and pre-sentence and probation reports consistently describe that he has shown no regret or remorse for his actions and that he has failed to understand the harm that he has caused, harm that was a reasonably foreseeable consequence of his behaviour. These assessments and reports are also consistent in concluding that R.R. poses a substantial risk to re-offend.
[48] I am therefore satisfied that R.R. might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1. Having reached this opinion, it is mandatory pursuant to s. 752.1 that R.R. be remanded for an assessment for a period not exceeding 60 days. That order was made on September 14, 2018, with a return date of October 31, 2018.
“original signed by”
The Honourable Justice D. C. Shaw
Released: October 12, 2018
COURT FILE NO.: CR-17-0019-00
DATE: 2018-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
R.R.
Respondent
REASONS ON APPLICATION
WARNING:
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Shaw J.
Released: October 12, 2018
/sab