Court File and Parties

COURT FILE NO.: 15-SA5047 DATE: 20190416 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant – and – C.G. Respondent

Counsel: Anne Fitzpatrick, for the Applicant Michael Davies, for the Respondent

HEARD: February 20, 21, 22, April 17, 19, 20, 23, 24, 25, 26, October 3, 5, 17, 2018, and January 10, 11, 2019

REASONS FOR sentence/dangerous offender application

RYAN BELL J.

Overview

[1] On January 12, 2016, C.G. pleaded guilty to one count of sexual assault on S.G. and one count of sexual assault on A.T. The Crown gave notice of its intention to seek to have C.G. declared a dangerous offender. An assessment of C.G. under s. 752.1 of the Criminal Code was ordered. After receipt of the assessment, the Attorney General provided his consent to the dangerous offender application. The Crown’s position is that C.G. should be declared a dangerous offender and sentenced to an indeterminate period of incarceration.

[2] C.G.’s position is that the Crown has failed to prove beyond a reasonable doubt that he meets the statutory prerequisites to be designated a dangerous offender and that he should be sentenced to a term of imprisonment of two to three years, in addition to time served. If the court does find C.G. to be a dangerous offender, C.G.’s position is that I should impose a determinate sentence of two to three years (in addition to time served), followed by a long-term supervision order in the community. C.G. takes no issue with (i) being found to be a long-term offender, and (ii) the imposition of a two to three year custodial sentence followed by a long-term supervision order.

[3] At the time of C.G.’s guilty plea, the facts relating to one count of sexual interference and one count of sexual assault on C.G.’s daughter, M.G., were read into the record and admitted by C.G. C.G. also admitted that on November 26, 2012, he pleaded guilty to sexual assault causing bodily harm and incest. For those convictions, C.G. was sentenced to two years less a day with credit for the equivalent of 20 months pre-sentence custody, and three years’ probation.

[4] C.G. had been in the community for one year when he reoffended against A.T. on March 25, 2015.

[5] C.G. is now 31 years old. Following the sexual assault on A.T., C.G. was briefly admitted to hospital. On April 8, 2015, C.G. was released from hospital and taken into custody. He has remained in custody to the present time, a period of four years.

[6] A large amount of documentary evidence was placed before the court on the sentencing hearing. In addition, I heard testimony from eleven witnesses called by the Crown, including Dr. Phillip Klassen, and one witness called by the defence, Dr. Derek Pallandi.

Nature of the Offences

Predicate Offence: Sexual Assault on S.G.

[7] S.G. and C.G. were married in July 2008. Towards the end of 2010, the marriage started to break down. One evening, C.G. appeared to be going into a trance-like state and became affectionate with S.G. S.G. asked him to stop. C.G. removed his pants, pinned S.G. down, and pulled S.G.’s pants off. C.G. attempted vaginal penetration but S.G. pushed him off and asked him to stop. C.G. pinned her down again, turned her over, and tried to penetrate her anally. S.G. struggled to resist the accused. C.G. had an erection during the attack, but S.G. could not be sure if C.G. penetrated her. S.G. managed to get him to stop and C.G. then went into a seizure.

[8] At the guilty plea hearing, C.G. accepted these facts as accurate, notwithstanding that he had no memory of the assault on S.G.

[9] S.G.’s victim impact statement was put into evidence. She reported that she sometimes has nightmares that C.G. is again present in her life and that she is jumpy and always keeps her cell phone close by “just in case.” As a result of the sexual assault, S.G. is far less trusting than she once was, and she questions the motives of other people and the repercussions of allowing other people into her life.

Predicate Offence: Sexual Assault on A.T.

[10] C.G. and his girlfriend, L.F., knew A.T. They all attended the same church. On March 25, 2015, C.G. stayed at A.T.’s residence because his residence was infested with bed bugs and was being fumigated. L.F. made the request of A.T. on C.G.’s behalf. A.T. allowed C.G. to sleep in her bed, but only to sleep. A.T. and C.G. had never been in a relationship. A.T. woke suddenly to C.G. pulling her pants down and C.G. “fingering me in the ass.” C.G. then pulled out his penis and “put his penis up my ass” and tried to thrust A.T. towards him. When A.T. used her arm in an attempt to push C.G. away, he stopped and got out of bed.

[11] A.T. read her victim impact statement. The sexual assault has had a profound effect on her well-being. She has PTSD and night terrors for which she is on medication. Her sleep patterns have changed. She described feeling unsafe, being hyper-vigilant and constantly looking over her shoulder. She has a hard time trusting people – especially men, but also friends, family and medical professionals. She described “fighting to come back from what happened to me.”

The Prior Convictions for Sexual Assault Causing Bodily Harm and Incest

[12] On April 7, 2011, C.G. sexually assaulted his sister, K.G., in the basement of the family home. C.G., recently separated from his wife, had moved back into the family home. K.G. and her two year old brother were at home alone when C.G. returned from shopping. C.G. came into the kitchen and told K.G. he was going to have a seizure. He went to the basement. K.G. followed him to make sure he was okay. When she turned to leave to get him some help, C.G. grabbed her from behind and dragged her into the laundry room. He threw her down on the cement floor; K.G. landed hard on her tailbone. C.G. then got on top of her and had vaginal intercourse with her. K.G.’s two-year old sibling came downstairs, saw what was happening, begged C.G. to stop hurting his “sissy,” and started hitting C.G.

[13] C.G. got off K.G. and forced her onto a couch in the basement and continued to have vaginal intercourse with her. K.G. attempted to call 911 but C.G. grabbed the phone and threw it across the room. He did the same with K.G.’s cell phone, and the same with the phone K.G.’s little brother tried to use. C.G. then shoved K.G. from the couch to the floor. He penetrated her vagina and anus digitally and penetrated her vagina with his penis. C.G. then stopped and returned to the laundry room in the basement. The incident lasted about 45 minutes. K.G. suffered significant bruising, including to her vaginal area, and she injured her tailbone from hitting the cement floor.

[14] In her victim impact statement which was put into evidence on this sentencing hearing, K.G. described how the assault has taken away her sense of personal safety and trust. Her sense of personal space has been violated and she is scared when people touch her. She wrote that “[m]oving forward into a mutually loving, trusted relationship is not going to be easy for me because I fear that my wishes will not be respected.” She described her physical injuries and the adverse financial impact due to her limited ability to work for a period of time following the incident.

Sexual Assault and Sexual Interference in Relation to M.G.

[15] The facts read in at the guilty plea hearing and accepted by C.G. were the following. During a diaper change, C.G. rubbed his penis against his daughter’s thigh. He then masturbated on the bed sheet with the child present.

Other Sexual Acts Relied on by the Crown

[16] In her submissions regarding C.G.’s past conduct, Crown counsel referred to additional conduct by C.G. I will address this conduct in the analysis portion of these reasons.

C.G.’s Youth Record

[17] When he was 15, C.G. was found guilty of break and enter, for which he received a sentence of probation and 40 hours of community service. C.G. had been delivering papers on his paper route.

The Offender

Personal History

[18] C.G. was born in Cambridge, Ontario on July 31, 1987. He is the oldest of seven siblings. He has a grade 12 education and attended one semester of a program at Kemptville College. His mother has generally been a homemaker. C.G.’s father was self-employed in the IT sector; as of late 2016, C.G.’s father was pursuing a master’s degree.

[19] C.G. was raised in an intact family. He was never physically abused, nor was he sexually abused, during his formative years.

[20] C.G. was homeschooled between grades 3 and 10 or 11. C.G. enjoyed high school, where he had friends and played rugby. There were no significant behavioural problems at school; however, C.G. acknowledged receiving a suspension for one or two days. He reported to Dr. Klassen that he was, on occasion, bullied, but that he was not himself a bully. He denied fire-setting, cruelty to animals, or vandalism. He acknowledged the break and enter incident.

[21] C.G. reported that he did not apply himself at college and he was asked not to return due to his absenteeism and very low marks.

Occupational History

[22] C.G. was a paperboy for a year. That ended with his conviction for break and enter. He was then employed at a grocery store as a bag/cart boy and a cleaner. C.G. left after a year when he tired of the work. At 18, he worked at a summer camp, in maintenance and with horses.

[23] C.G. told Dr. Klassen that after he completed high school, at age 19, he may have worked for a few months making pallets but that he was let go due to his seizures. After his one semester at college, C.G. worked in a “packing factory” for two months, at which point he was let go. He worked at a summer camp which he reported went well. C.G.’s return to college was unsuccessful and he then obtained employment at a horse farm. C.G. left when he suffered an injury and did not work for four months.

[24] At that point, C.G. moved in with S.G. They moved to a horse farm, but work was slow. C.G. then worked at a nursery for some months, followed by various construction jobs. C.G. reported that his longest period of consecutive employment was seven months.

[25] While he was employed in the construction industry, C.G. was working less than 50 per cent of the time. He was put onto ODSP in the early summer of 2014, reportedly due to epilepsy, “anxiety and stress disorder,” and his reported Asperger’s disorder.

Relationship History

[26] C.G. advised Dr. Klassen that he has had between 30 and 50 sexual partners, all female. He reported three serious relationships.

[27] The first serious relationship began when C.G. was 19. The relationship lasted for five to six months. It was not sexual. There was no violence. C.G. ended the relationship because it was a long distance relationship.

[28] C.G.’s second serious relationship was his marital relationship with S.G. S.G. is six years older than C.G. They were together between 2008 and 2011. He reported to Dr. Klassen that their daughter, M.G., was “sort of planned.” C.G. stated that there was no violence in the relationship. In the latter part of their relationship, however, they had difficulties with intimacy because of C.G.’s infidelity and “neediness.” Other areas of conflict between C.G. and S.G. included financial issues and their children (S.G.’s son and their daughter, M.G.).

[29] The third serious relationship was C.G.’s relationship with L.F. She is six years older than C.G. C.G. and L.F. were together between May 2014 and November 2015. They lived together for most of that time. C.G. and L.F. met at church. He reported that they had a good sexual relationship and there was no violence between them. L.F. forgave him for his two extramarital liaisons. Their daughter has been adopted by C.G.’s parents.

Medical History

[30] C.G. reported to Dr. Klassen that he suffered from seizures and Asperger’s disorder, and that he was being treated with anticonvulsants. As an adult, C.G. has never suffered a head injury with loss of consciousness. C.G. reported to Dr. Klassen that doctors have concluded his seizures are “triggered by high levels of stress,” they began when he was 15 or 16, and they have been consistent since that time.

[31] On April 18, 2011, following his arrest for the sexual assault on his sister, C.G. was referred to the Waypoint Centre for Mental Health Care for a psychiatric assessment on the issue of criminal responsibility. In his July 4, 2011 report, Dr. R. Dickey, a psychiatrist at Waypoint’s Provincial Forensic Programs Division, reported that C.G. was cooperative with institutional routines and, apart from about fifteen “seizure-like” episodes, C.G.’s behaviour was normal. Dr. Dickey’s view was that it is possible, “but less likely” that C.G. “truly suffers” from epilepsy. In his October 13, 2011 psychology report, Dr. Wright, also on staff with Waypoint, noted that C.G. was “extremely vague” when describing his “alleged seizures.”

[32] While he was at the Ontario Correctional Institute (“OCI”), C.G. acknowledged that his claim he was suffering a seizure when he sexually assaulted his sister was not true; he decided that he would “just take it” from his sister.

Alcohol and Drug Use

[33] C.G. reported to Dr. Klassen that he “used to drink a lot.” He began to use alcohol at the age of 19; he consumed alcohol to the point of blacking out. He stated that he sought to be intoxicated and, at times, lost control of his drinking. C.G. reported no physical consequences of alcohol use and he never drove while he was impaired. C.G. reported that he was not under the influence of alcohol during any of his offending behaviour.

[34] C.G. reported that he has used cannabis “a couple of times” and has also used tobacco. He has not experimented with any street drugs.

Behaviour in Custody

[35] The records relating to C.G.’s period of incarceration following his convictions for sexual assault causing bodily harm and incest were placed in evidence. On December 21, 2012, C.G. was admitted to OCI. There, C.G. was referred to and attended the CIAC-Connections program which focuses on more prosocial behaviour.

[36] In assessing C.G.’s suitability for treatment at OCI, it was noted that on a measure specifically designed to assess risk for sexual reoffence, C.G. scored in the low risk range. The classification committee recommended sexual offender treatment, substance abuse, bridge and discharge planning and phallometric testing. On admission to unit 4 in March 2013, C.G. was described as “highly motivated to become involved in the treatment process.”

[37] On May 9, 2013, C.G. was segregated following the discovery of a journal entry during a routine search. The entry was highly disturbing about one of the female staff members on the unit – what he would like to do to her and what he would do to her if she did not comply. His case manager wrote “I am worried that if he is as troubled as he comes across and does not get the help that he requires he will reoffend more violently and possibly cause death.”

[38] As a result of this incident, C.G. was transferred out of OCI prior to C.G. completing treatment. His case coordinator, Nilson Peixoto, who testified at the hearing, reported that C.G. struggled with motivation throughout his stay on unit 4 at OCI. On cross-examination, Mr. Peixoto agreed that it is not a concern if an offender turns out to be less motivated as it is “something you work on” during the program.

[39] Ultimately, C.G. was admitted to St. Lawrence Valley Correctional and Treatment Centre’s Secure Treatment Unit on July 31, 2013. At St. Lawrence Valley, there was no repetition of the behaviour that resulted in his transfer from OCI. There were no issues with C.G.’s behaviour or reports of any misconduct.

[40] C.G. completed the self-regulation group for sexual offenders. He also completed the substance abuse program, relaxation and stress management, and medication and symptom management, self-esteem, vocational program, and worked with a behavioural therapist. Various certificates of C.G.’s completion of programs at St. Lawrence Valley were put in evidence on the sentencing hearing.

[41] In the social work discharge summary dated March 26, 2014, C.G. was described as “able to receive feedback,” “engaged in his treatment,” and proactive in his discharge planning. He was reported to have made significant gains in dealing with his anxiety.

[42] In preparation for C.G.’s release into the community, Don McLeod, C.G.’s probation officer for community supervision until February 2015, considered C.G.’s risk assessment for sexual reoffending. On the STATIC-99R tally sheet, C.G. scored “low.” On the STABLE-2007, his score was at the moderate level.

[43] C.G. was released into the community on March 28, 2014.

Behaviour on Probation

[44] As recommended by the professionals at St. Lawrence Valley, C.G. participated in an outpatient group with the sexual behaviours clinic through the Royal Ottawa Health Care Group. A number of Dr. Brad Booth’s progress notes are included in the record on sentencing.

[45] Mr. McLeod testified at the sentencing hearing. He was supervising C.G. at the “high risk” level. While on probation, with one exception, C.G. complied with his reporting requirements. There was one issue with a change of address but C.G. was let off with a warning. Mr. McLeod testified that during the twelve months that he was C.G.’s probation officer, there was nothing asked of C.G. that C.G. did not do. The only “push back” was C.G. saying on occasion, “I’ve done some of this before.”

[46] According to Mr. McLeod, C.G.’s compliance response was “very good.” Mr. McLeod used the following words to describe C.G. during their meetings: “friendly,” “co-operative,” “not resistant,” “open to seeing services,” “quite transparent,” and “willing to share.” Mr. McLeod agreed that C.G. was open and honest in telling Mr. McLeod about his new girlfriend, L.F., and in telling L.F. about his past.

[47] L.F. became pregnant and on January 23, 2015, their daughter was born seven weeks’ early. In Dr. Booth’s progress note of February 11, 2015, there is a reference to C.G. discussing with Dr. Booth the stress surrounding these events, including the involvement of the Children’s Aid Society. C.G. reported that he was still attending Dr. Fedoroff’s stress and anxiety group most weeks.

[48] Mr. McLeod met with C.G. for the last time on February 26, 2015. C.G. met with his new probation officer on March 12, 2015. On March 25, 2015, C.G. offended against A.T.

Behaviour in Pre-sentence Custody

[49] Following the sexual assault on A.T., C.G. was briefly admitted to hospital under the Mental Health Act, R.S.O. 1990, c. M.7. Upon his release from hospital on April 8, 2015, C.G. was arrested and taken into custody. He has remained in pre-sentence custody at the Ottawa-Carleton Detention Centre since that time. He has spent time in segregation, mainly at his own request.

[50] There has been one incident of misconduct by C.G. while he has been in pre-sentence custody. In July 2016, C.G. attempted to hoard some medications that had been dispensed to him. The medications were confiscated and C.G. was “placed on misconduct” with the loss of canteen privileges for two weeks. Overall, C.G. has not been a “management problem” while at the Ottawa-Carleton Detention Centre.

Psychiatric/Psychological Assessments

[51] From 2011 to date, there have been a number of psychiatric and psychological assessments done of C.G.

(a) Dr. Percy Wright

[52] In the early summer of 2011, following C.G.’s arrest for the offences on his sister, Dr. Wright administered tests to C.G. and completed a psychological assessment of him. C.G. maintained that he could not recall the assault on his sister and “could not see himself committing” the offences. C.G.’s test results showed cognitive functioning to be in the average to high average range. There were no apparent signs of cognitive dysfunction or impairment. Personality testing did not indicate distress, anxiety or any related pathology. C.G.’s test results did not indicate malingering of psychiatric symptomology.

(b) Dr. Colin Cameron

[53] Dr. Cameron prepared the psychiatric admission report on C.G.’s admission to the St. Lawrence Valley’s Secure Treatment Unit in July 2013. Dr. Cameron reported that C.G. seemed to have “good motivation to look at himself and to make changes to mitigate his risk.” On the Level of Service Inventory – Ontario Revision (LSI-OR), C.G.’s score put him in the medium risk category for criminal reoffending.

(c) Dr. Brad Booth

[54] Dr. Booth prepared a psychiatric discharge summary on C.G.’s discharge from the Secure Treatment Unit. While C.G. was on the Secure Treatment Unit, phallometric testing was completed. C.G. showed preferential arousal to heterosexual adult scenarios. A possible diagnosis of Asperger’s disorder was confirmed. It was reported that C.G. had a number of seizures during his hospitalization. Dr. Booth noted that many individuals with true seizures also have pseudo seizures. Dr. Booth reported that, on the whole, C.G. showed some improvements in his stress tolerance, depression and interpersonal relationships, but that he continued to remain somewhat impaired. C.G. was aware that he should continue to work on these issues in the community. On the STATIC-99R, an actuarial measure of relative risk for sexual offence recidivism, C.G. had a total score of one, putting him in the low risk category for sexual reoffending.

[55] Dr. Booth’s discharge diagnosis of sexual sadism remained the same through to Dr. Booth’s last progress note in February 2015.

(d) Alison Davis and Dr. Drew Kingston

[56] Ms. Davis (psychometrist) and Dr. Kingston (psychologist) prepared a psychology discharge summary following C.G.’s discharge from the Secure Treatment Unit on March 28, 2014. They reported that C.G. was “a very active and participatory group member.” Initially, he tended to monopolize the group discussions; however, over time, he became “an excellent group member” and was able to find a healthy balance between sharing his thoughts and feelings and encouraging others to do the same. C.G. completed the Self-Regulation Program and was reported to have come to appreciate the importance of greater intimacy in his life and the benefits of healthier relationships in the future. From the outset, C.G. acknowledged the offences for which he was incarcerated and the “probable impact of his actions on his sister.” He was reported to have demonstrated “clear changes” in how he perceives women. At no time was C.G. inappropriate with any female staff. He showed improved interpersonal skills.

[57] Ms. Davis and Dr. Kingston recommended that C.G.: (i) follow through with the self-management/good life plan; (ii) follow up with the sexual behaviours clinic through the Royal Ottawa Health Care Group and participate in the outpatient sex offender treatment program; (iii) obtain treatment for addictions; and (iv) follow up for mental health issues. It was noted that C.G. would be followed by a psychiatrist through the Royal Ottawa Health Care Group.

(e) Dr. Philip Klassen

[58] Dr. Klassen is the court-appointed psychiatrist who performed the s. 752.1 assessment.

[59] The results of phallometric testing on C.G. indicate almost equal levels of arousal to adult females and pubescent females. Dr. Klassen explained that this result is not diagnostic of a preference for underage individuals. The phallometric testing results “clearly indicate” a preference for non-consenting sexual activity.

[60] In Dr. Klassen’s opinion, C.G. does not suffer from a bona fide seizure disorder, nor does he suffer from an autism spectrum disorder, including Asperger’s disorder. Dr. Klassen believes that C.G. suffers “primarily from a personality disorder, along with factitious symptomatology, multiple paraphilias, and an alcohol use disorder.”

[61] Dr. Klassen reported that C.G. presents with antisocial traits and significant borderline personality disorder traits. The latter include his rejection sensitivity, relationship instability, limited identity consolidation, self-damaging impulsivity (spending, sex and substance abuse), and affective instability.

[62] In Dr. Klassen’s opinion, C.G. meets the criteria for an alcohol use disorder.

[63] In Dr. Klassen’s opinion, C.G. suffers from multiple paraphilias, the most salient of which is coercive paraphilic disorder. Dr. Klassen stated the following in his report:

There are numerous indicators indicative of the presence of a paraphilic disorder or disorders. First, this gentleman has engaged in repetitive non-consenting sexual offending. While this gentleman does not report, or acknowledge, an underlying coercive preference, phallometric testing was clearly indicative of this. Further, this gentleman reports other sexual interests that may be seen as satellite paraphilic interests, including an interest in teens, incest, and bestiality.

[64] Dr. Klassen is unable to rule out the possibility that C.G. suffers from sexual sadism; however, he testified that he would not support such a diagnosis at the present time.

[65] Dr. Klassen scored C.G. using the Psychopathy Checklist-Revised (PCL-R), the STATIC-99R, and the Sex Offender Risk Appraisal Guide (SORAG). Dr. Klassen’s score for C.G. using the PCL-R is 23, placing C.G. on approximately the 52nd percentile with respect to a reference sample of North American offenders. Dr. Klassen described a score of 23 as “moderate.”

[66] In Dr. Klassen’s opinion, the two best instruments available for the assessment of sex offender recidivism are the STATIC-99R and the SORAG. C.G.’s score on the STATIC-99R is 4, “a moderately high score.” Based on this score, C.G. is 1.94 times more likely to reoffend than the “average” sex offender. Similar-scoring individual’s recidivated sexually at a rate of approximately 30 per cent over a 10-year follow-up in the community.

[67] C.G.’s score on the SORAG is 13. Dr. Klassen described this as a “moderate score.” Similar-scoring individuals recidivated violently or sexually at a rate of 59 per cent, over 10 years’ opportunity in the community. In Dr. Klassen’s opinion, C.G.’s recalibrated SORAG-derived risk for violent or sexual recidivism (to take into account the decline in recidivism base rates) is likely in the 40 to 45 per cent range.

[68] Dr. Klassen noted that in addition to probability, risk assessment also entails addressing imminence, frequency, and severity. Dr. Klassen observed that “[t]hus far, this gentleman has recidivated quite quickly, once in the community. At times his offending’s [sic] been quite severe. Frequency, in an individual with a coercive paraphilic disorder, or even sexual sadism, can be a salient variable.”

[69] Dr. Klassen’s opinion is that C.G. “most closely resembles, in terms of risk scores, persons with a substantial risk of sexual re-offense, but not a probability of sexual re-offence.” Dr. Klassen testified that while C.G.’s risk of reoffending is not inconsequential, his risk factors do not point to a probability of his reoffending.

[70] In terms of risk management, Dr. Klassen opined that C.G. will require external controls in addition to any further development of internal controls. Among other recommendations, Dr. Klassen noted that C.G. may benefit from further sex offender treatment (and that C.G. presented as open to further treatment), further substance-related treatment, treatment regarding emotional self-regulation and perhaps, dialectical behavioural therapy (DBT), and hormonal pharmacological sex-drive reduction (which Dr. Klassen opined may be of “considerable utility in terms of risk-reduction” and in respect of which C.G. has presented as open to using).

[71] In summary, it is Dr. Klassen’s opinion that:

[i]f the majority of the aforenoted [recommendations] are implemented, then in my opinion there is a reasonable possibility of eventual control of the risk in the community. Mr. Gray’s risk for re-offense will decline with age, but will remain present to some degree for approximately another 20 years, though.

[72] Dr. Klassen testified that C.G.’s greatest risk for reoffending is in the next five to ten years.

(f) Dr. Derek Pallandi

[73] Dr. Derek Pallandi was called as the expert witness for the defence. Dr. Pallandi noted that C.G. did not invoke seizures as being responsible for his offending behaviour, nor did he invoke intoxication as a determinant. He agreed that in the past, C.G. has used seizures in order to “get out of things.”

[74] In Dr. Pallandi’s opinion, C.G. evidences maladaptive traits in the borderline spectrum. Dr. Pallandi agrees with Dr. Klassen that it is likely that C.G.’s personality pathology predisposes him in some measure to his offending behaviour, “in that his underlying proclivities are brought to the fore and potentially acted upon, often impulsively, when he is in situations of relationship instability (or lack thereof).” As for sexual diagnoses, Dr. Pallandi described C.G.’s repertoire of behaviours as “polymorphous and in the service of Courtship Disorder.” In Dr. Pallandi’s opinion, although there are elements of coercion present, there is inadequate evidence for true sexual sadism.

[75] Dr. Pallandi agrees with Dr. Klassen’s interpretation of the phallometric testing results.

[76] Dr. Pallandi “concurs entirely” with Dr. Klassen’s actuarial enumeration of C.G.’s risk. He notes that C.G.’s PCL-R score, while elevated, is well below the diagnostic threshold for psychopathy. While Dr. Pallandi acknowledged C.G.’s amenability to recommended treatment is not a “true risk tempering” measure quantitatively, for Dr. Pallandi, it is an important consideration.

[77] With regard to risk management, Dr. Pallandi reported that C.G. agreed that he would be “entirely amenable” to a number of strategies including: living in supervised housing; attending intra-institutional treatment programming prior to release; attending sexual offender treatment programs as indicated; intensive supervision; and sex drive reducing medications.

[78] Dr. Pallandi acknowledged that C.G. has been subject to programming previously; nevertheless, in his opinion:

…With implementation of a selection of the above-noted strategies, depending on the prevailing circumstances, while likely employing hormonal sex drive reducing medication as a cornerstone would result in his risk being assumable and manageable/controllable in the community.

Given his age, a protracted supervision period would be instrumental in addressing public safety concerns while providing [C.G.] himself the opportunity for remaining recidivism-free in the long term.

Correctional Service of Canada Evidence

[79] The Integrated Correctional Program Model’s sex offender stream includes a sex offender program primer, consisting of 11 sessions. The primer serves to identify the offender’s risk factors and to encourage active self-management prior to enrolment in one of the main programs. Participation in the primer is a prerequisite for participation in either the high intensity or the moderate intensity sex offender program. The high intensity sex offender program consists of 104 sessions over five modules. The program also includes six individual sessions. The moderate intensity sex offender program consists of 54 sessions. Institutional and community maintenance programs are also offered. The evidence at the sentencing hearing was that it would not be possible to complete the sex offender program and the maintenance program in a two year period; if an offender were serving a two year sentence, the maintenance program would have to be completed by the offender in the community.

Analysis

Is C.G. a Dangerous Offender?

[80] The dangerous offender scheme is a two-stage process. Before a court can designate an offender as dangerous, the Crown must satisfy one of the grounds set out in s. 753(1) of the Criminal Code – the designation stage. Sections 753(4) and (4.1) relate to the sentencing of a dangerous offender, also referred to as the penalty stage.

[81] In the case of C.G., the Crown relies on the ground set out in s. 753(1)(b). Section 753(1)(b) reads:

On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

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

[82] To obtain a designation of dangerousness under s. 753(1)(b), the Crown must prove beyond a reasonable doubt that:

i. the offence for which the offender has been convicted – the predicate offence – is a “serious personal injury offence” as defined in s. 752(b); ii. the offender, by his or her conduct in any sexual matter, including that involved in the commission of the offence for which the offender has been convicted, has shown a failure to control his sexual impulses; and iii. the offender, by his or her conduct in any sexual matter, has shown a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

[83] There is no issue here that the convictions for sexual assault constitute serious personal injury offences.

[84] The respondent also accepts that the Crown has proved, beyond a reasonable doubt, that C.G. has shown a failure to control his sexual impulses. In doing so, the respondent agrees only that the Crown has proven four sexual assaults: the two predicate offences, the sexual assault causing bodily harm on his sister, and the incident involving C.G.’s young daughter.

[85] In relation to the second prerequisite, the Crown seeks to rely on the following additional conduct: (i) the break and enter which C.G. is said to have admitted was for a sexual purpose; (ii) the incident at Kemptville College referenced in the documentary evidence at various points; and (iii) C.G. sexually assaulting S.G. when she was passed out. At the sentencing stage, the Crown must prove disputed aggravating facts beyond a reasonable doubt. In a dangerous offender proceeding, the Crown must prove the statutory elements of dangerousness beyond a reasonable doubt (R. v. Williams, 2018 ONCA 437, at para. 53). These additional acts upon which the Crown relies rest entirely on statements said to have been made by C.G. No evidence was proffered that could be tested. I agree with respondent’s counsel that these additional acts have not been proved beyond a reasonable doubt. That being said, I find that the statutory requirements in s. 753(1)(b) concerning present conduct have been proved beyond a reasonable doubt.

[86] The issue in this case is whether the Crown has proven beyond a reasonable doubt that C.G., by his conduct in relation to the four sexual matters, has shown a likelihood of causing injury, pain or other evil to other persons through his failure in the future to control his sexual impulses. This criterion is future-oriented and takes into account the offender’s future treatment prospects. As the Supreme Court of Canada stated in R. v. Boutilier, 2017 SCC 64, at paras. 35-36:

Determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry into whether an offender will continue to be, in Justice Dickson’s words…“a real and present danger to life or limb” [citation omitted]…

…In R. v. Currie …Lamer C.J. said that a judge has to “be satisfied beyond a reasonable doubt of the likelihood of future danger that an offender presents to society before he or she can impose the dangerous offender designation and an indeterminate sentence.”

[87] Boutilier involved a constitutional challenge to s. 753(1) and s. 753(4.1) of the Criminal Code. The central issue was whether a sentencing judge is entitled to consider evidence of future treatment prospects when deciding whether to designate an offender as opposed to when imposing a sentence. The Supreme Court of Canada concluded, at para. 46, that “[a] prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention. This necessarily involves the consideration of future treatment prospects.”

[88] A “likelihood” of specified future conduct occurring is the finding of fact required to be established. The Crown is not required to prove beyond a reasonable doubt that certain events will happen in the future, “but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct” (Boutilier, at para. 120, citing R. v. Knight (1975), 27 C.C.C. (2d) 343 (Ont. H.C.), at 356).

[89] As Code J. stated in R. v. P.G., 2013 ONSC 589, [2013] O.J. No. 490 (S.C.J.), at para. 18:

Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 “likelihood” test is subtle. The ordinary dictionary meaning of the word “likelihood”, as well as its normal legal usage, is “probability”, that is, something more than mere “possibility”… When applying this meaning to the “likelihood” test found in s. 753, the courts have stressed that it refers to probable “risk” or “potential for harm”, as a present fact, rather than to proof of a future event which would be an impossibility.

[90] With respect to the Crown’s obligation to satisfy me beyond a reasonable doubt that there is a likelihood of C.G. causing injury, pain or other evil to other persons as a result of his failure in the future to control his sexual impulses, I must address what degree of certainty of reoffending is intended by the word “likelihood.”

[91] I begin by contrasting Parliament’s use of the word likelihood in s. 753(1) with the phrase “a substantial risk”, the phrase used in s. 753.1(1)(b) in relation to long-term offenders. I do not equate “substantial risk” with a “likelihood” of future harmful conduct. Parliament’s use of a different term in the two provisions implies a different meaning.

[92] I do not agree with the Crown’s submission that in the context of proceedings under Part XXIV of the Criminal Code, a substantial risk connotes a higher degree of certainty than a likelihood. If an offender is not found to be a dangerous offender because the likelihood of future harmful conduct was not proven to the requisite standard, the court may treat the application as a long-term offender application under s. 753.1.

[93] One of the requirements under s. 753.1(1) is that the court must be satisfied that there is a substantial risk that the offender will reoffend. Pursuant to sections 753.1(2)(a) and (b)(ii), the court shall be satisfied that there is a substantial risk that the offender will reoffend if the offender has been convicted of sexual assault (among other listed offences) and the offender, “ by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.” While the wording under the long-term offender provision is not identical to the language used in s. 753(1)(b) relating to a dangerous offender, I conclude that if the future conduct and degree of certainty required would meet the test under the dangerous offender provision, the mandatory wording of s. 753.1(2) applies and the “substantial risk” criterion under s. 753.1(1)(b) will be met. But, even where s. 753.1(2) does not apply, the court may still be satisfied that there is a substantial risk that the offender will reoffend.

[94] I therefore conclude that a likelihood of the future conduct as the word is used in s. 753(1)(b) connotes a higher degree of certainty than the phrase “substantial risk” as used in s. 753.1.

[95] I am reinforced in this view by the language used by the Supreme Court of Canada in Boutilier in reference to the dangerous offender provisions of the Criminal Code: “[b]efore designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable” (at para. 27), “a high risk of recidivism and intractability” (at para. 35), and “they present a high likelihood of harmful recidivism” (at paras. 45 and 46).

[96] And finally, at para. 75, the Supreme Court observed:

Undoubtedly, the dangerous offender designation criteria are more onerous than the long-term offender criteria. In particular, under s. 753(1), the sentencing judge must be satisfied that “the offender constitutes a threat to the life, safety or physical or mental well-being of other persons”, whereas under s. 753.1, the sentencing judge must merely be satisfied that “there is a substantial risk that the offender will reoffend.”

[97] In its ordinary meaning, “likelihood” means more probable than not. I am of the view that as used in s. 753(1), likelihood connotes a degree of risk rising to at least a probability – that is, a risk that is more likely than not.

[98] I accept the expert evidence of Doctors Klassen and Pallandi. C.G. is not a psychopath. There is no evidence that C.G.’s problems are intractable, in the sense of being insurmountable (Boutilier, at para. 27).

[99] Drs. Klassen and Pallandi are in agreement as to the actuarial assessment of C.G.’s risk. While Dr. Pallandi considers C.G.’s amenability to receive treatment to be an important consideration, and Dr. Klassen sees no indications for the introduction of clinical judgment into the assessment, the evidence is that C.G.’s risk factors do not point to a probability of his reoffending. I also note that the actuarial assessment of C.G.’s risk does not take into account any recommended treatment.

[100] The prospective assessment of dangerousness involves the consideration of future treatment prospects. In her submissions, Crown counsel focused on three principal areas relevant to C.G.’s treatability: (i) C.G.’s amenability to treatment; (ii) the fact that C.G. reoffended within one year of his release into the community and after completing the sexual offender programming at St. Lawrence Valley; and (iii) the emphasis placed on sex-drive reducing medications. I recognize that Crown counsel raised these issues during the course of her “penalty stage submissions” and specifically, in support of the Crown’s position that C.G. should receive an indeterminate sentence. I address these arguments at this stage as each relates to C.G.’s future treatment prospects.

[101] The Crown puts the issue of C.G.’s amenability to treatment as follows: does C.G. have insight into his offending behaviour or has he simply figured out what people want to hear? In considering C.G.’s future treatment prospects, C.G.’s motivation for treatment and his treatability are relevant (R. v. McCallum, [2005] O.J. No. 1178 (C.A.), at para. 46). The Crown submits that C.G. has no insight into his conduct.

[102] I cannot agree with this submission. It is inconsistent with the evidence of trained professionals to which I have already made reference. Where there has been a perceived lack of motivation on the part of C.G., it has been noted. Mr. McLeod spoke of C.G.’s transparency and high degree of compliance with his reporting requirements. C.G. did see Dr. Booth and Dr. Fedoroff following his release into the community. Ms. Davis reported C.G.’s acknowledgement of the offences on his sister and their probable impact on her, and the “clear changes” in C.G.’s perception of women and his active participation as a group member. With Dr. Klassen, C.G. acknowledged that initially, he had “framed” the assault on his sister as a seizure but acknowledged that that was not true. Dr. Klassen reported that C.G. presented as open to further sex offender treatment and to the use of hormonal pharmacological sex-drive reduction. Dr. Pallandi reported that C.G. accepted responsibility for his offending conduct and provided accounts that were “reasonably accurate and free of distortion.” For Dr. Pallandi, C.G.’s amenability to a number of strategies is an important consideration.

[103] The Crown’s second submission is, in essence, the following: C.G. was treated previously (at St. Lawrence Valley) and it “didn’t work” (as C.G. reoffended within one year of his release into the community), so why would there be any expectation further treatment would be successful? This submission in my view fails to take into account that both Dr. Klassen and Dr. Pallandi – whose evidence I accept – have opined as to C.G.’s treatability. Dr. Pallandi also acknowledged that C.G. has been subject to programming previously. There was evidence regarding the sexual offender programming available at federal institutions in Canada and how that programming compared to that completed by C.G. through a provincial institution. And finally, the actuarial assessment of C.G.’s risk does not point to a probability of his reoffending and that is before taking into account any recommended treatment.

[104] I turn to the issue of sex-drive reducing medications. There was evidence that the Parole Board of Canada cannot force the offender to consent to this type of medical treatment. Although an offender may express that he is open to taking such medication, the relevant time is as at the date of the offender’s release. Dr. Klassen described C.G. as needy and regressive. He testified that for someone like C.G., that individual would have a drive to be less accountable and less responsible. Based on this evidence, Crown counsel submitted that it is “almost inconceivable that [C.G.] is a person who is going to comply successfully with that type of onerous requirement.” However, in my view, this submission does not give due consideration to the evidence that an offender’s breach of a condition to take the medications as prescribed by refusing to do so could result in a charge for a breach of a long-term supervision order under s. 753.3 of the Criminal Code.

[105] I do not discount in any way C.G.’s risk of reoffending. However, the evidence does not persuade me, beyond a reasonable doubt, that C.G. by his conduct in relation to the four sexual matters has shown a likelihood of causing injury or pain to other persons through his failure in the future to control his sexual impulses. The third requirement of s. 753(1)(b) has not been met.

Long-term Offender Application

[106] As I stated at the outset of these reasons, respondent’s counsel does not object to C.G. being designated a long-term offender and the imposition of a determinate sentence, followed by a long-term supervision order.

[107] I do not find C.G. to be a dangerous offender. In accordance with s. 753(5), I have concluded that it is appropriate to treat this application as an application under s. 753.1.

[108] The criteria to be designated as a long-term offender in s. 753.1(1) are the following:

The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community.

[109] Section s. 753.1(3) provides:

If the court finds an offender to be a long-term offender, it shall

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

[110] In R. v. L.M., 2008 SCC 31, LeBel J. stated at para. 49, that where a long-term offender application is made, “Parliament intended that the judge determine the appropriate sentence first.” In this case, however, there is no suggestion that it would be appropriate to impose a sentence of less than two years on C.G. Counsel for C.G. has asked me to impose a sentence of two to three years imprisonment in addition to the four years of pre-sentence custody that C.G. has already served. Counsel submits that not only would such a sentence be fit and appropriate for the sexual assault convictions, it would also ensure that C.G. would have access to the sexual offender treatment programming used at federal institutions. I therefore consider the long-term offender application first.

[111] The evidence to which I have already referred compels the conclusion that there is a substantial risk that C.G. will reoffend.

[112] I have also concluded, based on the evidence of Drs. Klassen and Pallandi, whose evidence I accept, that there is a reasonable possibility of eventual control of that risk in the community.

[113] Section 753.1(1) is discretionary. Unlike the dangerous offender designation provision, even when all three prerequisites in s. 753.1(1) are established, a judge hearing a long-term offender application need not find an offender to be a long-term offender. In this case, there is no suggestion that I should refuse to exercise my discretion. C.G. does not object to being found to be a long-term offender. There is, in any event, no basis upon which I should refuse to exercise my discretion. C.G. falls squarely within the target group: he is an offender who poses a substantial risk of committing sexual crimes in the future but who offers a reasonable possibility of eventual control of the risk in the community.

[114] I therefore find C.G. to be a long-term offender. In addition to imposing a sentence in excess of two years’ imprisonment, I order that he be subject to a long-term supervision order. Dr. Klassen opined that although C.G.’s risk for reoffending will decline with age, it will remain present to some degree for approximately 20 years. In my view, the maximum term of ten years should be applied to the long-term supervision order. If C.G. fails to comply with any term of his long-term supervision order, he will be subject to prosecution for that failure as a separate offence under s. 753.3 of the Criminal Code.

[115] The final issue is the length of the determinate portion of the sentence that the long-term supervision order will follow. C.G. has spent four years in pre-sentence custody on these convictions and is entitled to credit for the time spent in custody against any sentence to be imposed.

[116] C.G.’s counsel submits that I should impose a sentence of two to three years in addition to the time served in pre-sentence custody. This would be the equivalent of six to seven years.

[117] In this case, the paramount sentencing objectives include denunciation and deterrence. The seriousness of committing sexual assault against a spouse is reflected in s. 718.2(a)(ii) of the Code which requires the sentencing court to treat a domestic assault as an aggravating factor. A.T. was a person known to C.G. and helped C.G. out at the request of C.G.’s girlfriend. C.G.’s moral blameworthiness in relation to both offences is high. C.G. has a prior record of sexual assault causing bodily harm and incest on his sister.

[118] Public safety and protection is also of paramount importance. I refer to Watt J.A.’s statement in R. v. Spilman, 2018 ONCA 551, at para. 31:

…I am satisfied that in determining the length of the fixed-term custodial component of a composite sentence under s. 753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV, and other applicable sentencing principles…This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context.

[119] Watt J.A. reached his conclusion for six reasons, the third of which is that the wording of s. 753(4)(c) – “impose a sentence for the offence for which the offender has been convicted” – does not preclude sentencing judges from placing enhanced focus on public safety when imposing a sentence (Spilman, at para. 35). The fourth reason identified by Watt J.A. is the requirement that the two-year minimum custodial component of a composite sentence under s. 753(4)(b) “signals a departure from the traditional sentencing principles of Part XXIII” (Spilman, at paras. 35-36). These reasons apply equally to s. 753.1(3)(a) which provides that on finding an offender to be a long-term offender, in addition to imposing a long-term supervision order, the court shall “impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years.”

[120] Balancing all of the relevant factors, including the enhanced focus on public safety and the time required to complete the Integrated Correctional Program Model’s sexual offender programming and the maintenance program, I conclude that a sentence of seven years is the appropriate sentence to be imposed. This would leave a period of three years to be served after a credit of four years for pre-sentence custody.

Disposition

[121] In conclusion, I find C.G. to be a long-term offender pursuant to s. 753.1 of the Criminal Code.

[122] On each of the two offences of sexual assault, I sentence C.G. to a term of imprisonment of three years. This sentence accords C.G. a credit of four years for the time spent in pre-sentence custody, for a total effective sentence of seven years. These sentences are to be served concurrently.

[123] This sentence is to be followed by an order that C.G. is to be supervised in the community for a period of ten years in accordance with the provisions of the Criminal Code and the Corrections and Conditional Release Act, S.C. 1992, c. 20.

[124] I make the following additional orders:

(a) in relation to the conviction for sexual assault on S.G., an order prohibiting C.G. from communicating, directly or indirectly, with S.G. while he is in custody; (b) in relation to the conviction for sexual assault on A.T., an order prohibiting C.G. from communicating, directly or indirectly, with A.T. while he is in custody; (c) an order requiring C.G. to comply with the Sex Offender Information Registration Act for life; (d) an order requiring C.G. to provide a DNA sample pursuant to s. 487.051(1) of the Criminal Code; and (e) a lifetime mandatory weapons prohibition order under s. 109 of the Criminal Code.

Madam Justice Robyn M. Ryan Bell

Released: April 16, 2019