Court File and Parties
COURT FILE NO.: 153/16 DATE: 2019-05-31 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – S.S.
COUNSEL: Kelli Frew, for the Crown Erin Dann and Janani Shanmuganathan, for Mr. S.S.
HEARD: March 25, 27, 28, April 2 & 3, 2019
REASONS FOR JUDGMENT
Gray J.
[1] On September 20, 2017, I found Mr. S.S. guilty of sexual assault and sexual interference with respect to his niece who, at the time of trial, was ten years old. On November 2, 2018, I entered a conviction for the offence of sexual interference, and conditionally stayed the charge of sexual assault pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.
[2] Counsel for the Crown now requests, pursuant to s.753 of the Criminal Code, an order finding Mr. S.S. to be a dangerous offender, and imposing a sentence on him of detention for an indeterminate period.
[3] Counsel for Mr. S.S. resists the application, and contends that Mr. S.S. should not be found to be a dangerous offender. Rather, he should be found to be a long-term offender pursuant to s.753.1 of the Code, and there should be imposed on him a term of imprisonment for a defined period, and a long-term supervision order.
[4] For the reasons that follow, I decline to find Mr. S.S. to be a dangerous offender. I find instead that he is a long-term offender, and I impose a term of imprisonment and a long-term supervision order.
Background
[5] As noted, Mr. S.S. has been convicted by me of sexual interference. In addition, he has a criminal record, which I have listed below. I have included some details with respect to each offence, but the details must be assessed with some caution, having regard to the limited information that is now available.
a) March 27, 1995 – convicted of possession of a weapon for a dangerous purpose. Sentenced to a $300 fine and two years’ probation. While at Sheridan College, Mr. S.S. engaged in a consensual fight with another male, but had in his possession a yellow container filled with pennies attached to a tin rope that he struck the victim with. He also had a metal pipe that he attempted to hit the victim with. Mr. S.S. was 19 years of age.
b) March 3, 1998, Mr. S.S. was convicted by a jury of deliberately setting fire to an occupied property, and mischief endangering life. He used gasoline and set fire to the roof and stairwell of his three-storey apartment building. There were 64 sleeping people in the building. Twenty two of the tenants had to be rescued by fire ladders from their balconies. The convicting judge noted that by wedging the third floor escape door shut, a young girl and her family were unable to escape the fire except via their balcony. He was sentenced to six years in custody in addition to the time he had already served, and given a ten-year weapons prohibition.
c) June 25, 2001 – pleaded guilty to a failure to comply with probation charge for failing to report as directed, arising out of his first conviction.
d) April 14, 2004 – convicted of possession of child pornography. He made the photographs himself and was having it developed at a local drug store. The photos were of himself engaged in explicit sexual acts with a 14-year-old girl. Mr. S.S. claimed he believed the girl was 18-years-old. The age of consent at the time was 14. Mr. S.S. was sentenced to ten months’ custody and two years’ probation.
e) September 27, 2005 – convicted of failure to comply with his probation order by failing to notify his probation officer of a change of address. He was given a fine of $150.
f) February 7, 2006 – Mr. S.S. was convicted of two more breaches of his probation order. He was given a $500 fine and 45 days in jail plus a further nine months’ probation.
g) July 31, 2007 – Mr. S.S. was convicted by a jury of sexual assault causing bodily harm. He was located by the police in the back of a van with a semi-conscious woman whose shirt was pulled up and both had injuries. He was sentenced to two years in jail less 12.5 months of pre-sentence custody.
h) December 18, 2012 – Mr. S.S. was convicted of theft under $5,000, for stealing 52 pornographic DVDs from The Love Shop in Oakville. He had served nine months of pre-sentence custody, and so the passing of sentence was suspended and he was placed on three years’ probation.
i) September 4, 2013 – Mr. S.S. pleaded guilty to three breaches of his 2012 probation order, and his SOIRA order by living at his sister’s address and by failing to provide his probation officer with his actual address. He was given credit for three months pre-sentence custody and sentenced to a further four months in custody plus three years’ probation.
[6] On February 28, 2018, I signed, on consent, an order for an assessment of Mr. S.S. pursuant to s.752.1 of the Code. A 78-page report was prepared by Dr. Lisa Ramshaw, and she testified in these proceedings. Her report is too lengthy and detailed to summarize adequately, and I will concentrate on the matters that are most relevant to the issues I must determine.
[7] Dr. Ramshaw conducted interviews with Mr. S.S. on April 10, April 24, and June 6, 2018. She conducted a telephone interview with Mr. S.S.’s sister on July 20, 2018. She requested Dr. Percy Wright to conduct a psychological assessment, which was conducted on June 19, 2018. Phallometric testing was conducted on Mr. S.S. on May 6, 2018. She examined considerable file material on Mr. S.S.’s background, and information regarding the predicate offence. She examined records from Correctional Services Canada from 1998 to 2004. She examined records of previous psychological and psychiatric reports, as well as his previous probation and parole records.
[8] Dr. Ramshaw noted, throughout her report, that Mr. S.S. had a marked tendency to exaggerate and invent various accomplishments and qualifications of himself. Indeed, he had a marked tendency to lie about just about everything.
[9] Dr. Ramshaw reviewed Mr. S.S.’s previous offences, and what was known about them, in some detail.
[10] Dr. Ramshaw, as noted, requested Dr. Percy Wright to conduct psychological testing on Mr. S.S. She reviewed Dr. Wright’s report, and discussed the specific psychological tests that were conducted. The conclusions of Dr. Wright included the following:
In short the most valid testing we have suggest a relatively anti-social individual with considerable persecutory and paranoid beliefs and a strong tendency to eschew responsibility for his actions. Taken together he can best be described as a poorly integrated individual with anti-social features combined with a propensity to meet his needs through momentary fantasy and self-image enhancement. Poorly integrated individuals struggle to be aware of their contributions to their decisions, behaviour and thought processes, typically ascribing these to outside forces and momentary events.
[11] As noted, Mr. S.S. underwent phallometric assessment. The phallometric testing results were interpreted by Dr. S. Woodside. According to Dr. Woodside’s report, Mr. S.S.’s phallometric testing was “indicative of hebephilia, and not indicative of a preference for coercive sexual interaction with a female. Hebephilia is a sexual preference for pubescent children.”
[12] Mr. S.S. was subjected to a number of tests to assess the risk of re-offending. In the result, it was concluded that Mr. S.S. would pose a high risk for re-offence.
[13] Dr. Ramshaw’s diagnosis included the following:
Mr. S.S. had a narcissistic personality disorder, he has significant anti-social and psychopathic traits, and he has paranoid personality traits. He also has a possible hebephilic disorder (sub-type of pedephelia with a preference for pubescent children). There was no evidence of any mood, psychotic, anxiety, trauma-related, or substance use disorder. He was of average intelligence. However, as noted by Dr. Wright his “verbally facile approach might give the impression that he is functioning at a higher level than test results would suggest”.
[14] Dr. Ramshaw’s conclusions included the following:
Mr. S.S. has a history of criminal versatility from the age of 18, including three sexual offences involving a 14-year-old girl, a female adult, and a pre-pubescent child. Other than his offending being opportunistic, self-serving, with a clear disregard for the victims, there has been no clear pattern or specificity. Nor has there been an escalation of his offending behaviour, though neither prior sanctions nor active probation appears to have been a deterrent. He has frequently re-offended while on probation, though at times near the end of his probation. His longest period of stability in the community without supervision appears to have been between about 2008 and 2011.
[15] Dr. Ramshaw noted that Mr. S.S. had had limited treatment interventions and no sexual behaviour treatment. He had participated in some programs while in custody. However, he appeared to actively avoid participation in the recommended violent offender programs while in federal custody.
[16] Dr. Ramshaw concluded that Mr. S.S. is in a high or well-above-average level of risk to re-offend generally, violently and sexually. In her report, she stated:
All of the risk assessment instruments placed Mr. S.S. in a high or well-above-average level of risk to re-offend generally, violently, and sexually. His risk would be highest in the context of opportunity involving access to victims, stress and lack of structure and supervision.
While criminally versatile and persistent in his offending, unpredictable, and having few boundaries, he has no clear pattern offending other than preying on vulnerable females.
Mr. S.S.’s clinical risk factors for re-offence include personality features such as grandiosity, lack of empathy and remorse, tendency to blame and distrust others, and interpersonal exploitation and aggression. Sexual deviance (such as hebephilia) also increases the risk of sexual offending against minors. A lack of insight, adequate support, poor coping and stress, and a distorted view of himself and the world, further contribute to his risk overall.
To his credit, Mr. S.S. has no clear substance abuse history, which would contribute to risk. Further, some of his offending may not be viewed as severe, and there is no clear escalation in his offending – albeit he has been convicted of three sex offences since 2004.
Unfortunately, Mr. S.S.’s motivation to reduce his risk is very low. He views himself as not being a risk, and as superior to other offenders in all ways. He lacks insight into his risk factors for re-offence and has limited motivation to engage in any meaningful change.
Generally, age is a significant factor that contributes to risk reduction, particularly in the fifth decades and onward. The Factor 1 personality traits of psychopath (including pathological lying, lack of empathy and guilt, and a failure to accept responsibility for one’s actions) do not, however, tend to change significantly over time. As well, although sexual offending behaviour tends to decline with age, underlying sexual preference does not change. Further, narcissistically driven anger can become worse with age.
[17] Despite a poor prognosis, Dr. Ramshaw concluded that Mr. S.S. could potentially be managed in the community. She stated in her report:
Overall, the prognosis for Mr. S.S. is quite poor. Unfortunately, there are limits to what one can offer with respect to programming to address his criminogenic risk factors dues to his personality organization, low levels of insight and engagement, demonstrated difficulty integrating concepts to modify his offending behaviours, and his duplicitous communications. Community supervision has also been limited in its effectiveness at managing his criminogenic risk factors and assisting him to successfully reintegrate into the community. His most recent probation officer opined that he would not be appropriate for future community supervision.
Despite a guarded prognosis in terms of the likelihood of change, with enough resources including supervision over a protracted period of time, Mr. S.S. could potentially be managed in the community. The following risk management strategies are recommended in an attempt to reduce his risk of re-offending sexually in the context of opportunity:
• Intense supervision with close monitoring and support through the parole system upon his release would assist in community stability and reducing risk to vulnerable individuals. An potential supervisors or counselors should be made aware of his history given his duplicitous nature. His stability and progress cannot be based on his self report.
• Sexual behaviour treatment is recommended. Mr. S.S. has never received treatment for his sexual offending. Other than removing opportunity, treatment with long acting sex drive reduction medication such as leuprolide acetate (Lupron) is the only known significant sexual offending risk reducing strategy. Relapse prevention treatment is also recommended, starting with individual therapy, followed by group therapy as tolerated. Motivational interviewing during individual therapy could potentially enhance the likelihood of his participation.
• Anger management and addressing his hostility and entitlement could potentially assist in stability over time.
• Relationship counselling is recommended to assist him in developing greater relationship stability and pro-social interactions, with the understanding that this might be limited.
• Employment would assist in structuring his life, with the caveat that he views himself as being highly skilled and educated. His community supervisors should have direct communication with his employers. Again, despite his self reported attainment to date, he might benefit from attending vocational skills courses.
• Mr. S.S.’s residence should be approved by Probation and Parole.
• Mr. S.S. should not have any access to unsupervised minors. This needs to be monitored very closely given his violation of prior orders when he was not to be in the presence of unsupervised minors, and his duplicitous tendencies.
[18] In her viva voce evidence, Dr. Ramshaw expanded somewhat on the contents of her report. She noted that Mr. S.S. has very significant narcissistic personality traits. He exhibits significant anger and hostility. However, there is no evidence of psychosis, schizophrenia, mood disorder, or trauma disorder.
[19] Dr. Ramshaw testified that treatment for narcissistic personality disorder is difficult. Mr. S.S. does not believe he needs to change. However, there are some strategies that may work. They include techniques such as motivational interviewing. However, they are not a quick fix.
[20] Dr. Ramshaw testified that sex drive reduction medication can be effective. If it is taken, the risk of re-offending sexually would be reduced significantly. However, Mr. S.S. does not think he needs treatment.
[21] Dr. Ramshaw acknowledged that age can be a factor in re-offending. With advanced age, there can be burnout. Particularly after age 50, there can be some significance in the reduction in risk of re-offending.
[22] Dr. Ramshaw testified that Mr. S.S.’s risk of re-offending could likely be manageable with enough resources in the community. With supervision, the risk would likely be lowered. She testified that it would require intense supervision, including:
a) reporting twice per week;
b) having his residence determined by a parole officer;
c) a prohibition against residing with children or a vulnerable individual;
d) an awareness of Mr. S.S.’s history;
e) double checking information given by Mr. S.S.
[23] Dr. Ramshaw recommended sexual behaviour treatment, anger management, and motivational interviewing.
[24] As noted, Dr. Ramshaw recommended sex drive reduction medication. This can be done through injections, or less effectively, through pills. She testified that there are side effects, including feminization, body fat redistribution, hot flashes, bone density loss, and a reduction in sex drive. Testosterone can be taken to ameliorate the effect of some of these side effects.
[25] On cross-examination, Dr. Ramshaw acknowledged that Mr. S.S. was cooperative in all of the interviews and testing that was requested of him. She also acknowledged that during some of his terms of custody in federal institutions, Mr. S.S. had requested to be placed in programs. According to the CSC records, Mr. S.S. was not violent. While in custody in provincial institutions, there was little, if any, availability of treatments or programs. When released on parole, there was no breach of parole that was alleged.
[26] While Dr. Ramshaw has recommended motivational interviewing, she was unaware of whether Mr. S.S. had had any motivational interviews.
[27] Dr. Ramshaw acknowledged that Mr. S.S. exhibits some positive factors. There is no evidence of any addiction. He has no major mental illness. He understands intellectually that there is value to participation in programming. He exhibits no sadistic traits. Some of his conduct has not been severe. There has been no clear escalation in his conduct. There have been some periods during which no offences have been committed.
[28] Dr. Ramshaw acknowledged that motivation can be driven by external factors. For example, the threat of indeterminate custody can be a motivational factor. She also acknowledged that Mr. S.S. had told Dr. Wright that he needs sex offender treatment, and would be willing to take it. He also indicated that he would be willing to take sex drive medication, although his preference was to take pills.
[29] Dr. Ramshaw testified that Mr. S.S. would be at high risk of reoffending if he were released now. She would want him to complete a significant number of programs before release. If he were under supervision, risk could be reduced.
[30] Dr. Ramshaw testified that risk-enhancing traits would include Mr. S.S.’s unstructured living environment; his isolation; and his stresses.
[31] Dr. Ramshaw testified that there is no “cure” for paraphilia, however, it can be reduced through treatment, including a structured lifestyle, a reduction in opportunity to be alone with minors, random checks, and intense supervision.
[32] Dr. Ramshaw testified that with respect to Mr. S.S., his risk of reoffending could likely be minimized with supervision, including:
a) intense supervision with close monitoring;
b) approval of his residence by a parole officer;
c) reporting twice per week;
d) random checks;
e) making supervisors aware of his tendency to embellish;
f) sex drive reduction medication (assuming he consents).
[33] Dr. Ramshaw acknowledged that if the subject is aware that failure will result in re-incarceration, success is more likely.
[34] Dr. Ramshaw testified that most people can tolerate the effects of sex drive medication. It can have a mellowing effect on personality traits, such as anger. Medication is administered every three months for ten years, after which the medication has no ongoing effect.
[35] Dr. Ramshaw acknowledged that the level of risk will likely be reduced if the subject engages in programs and takes sex drive medication. Risk could be reduced if there is a gradual release to the community, perhaps through a halfway house. If the subject’s comings and goings are monitored, it will reduce risk. If there are limited overnight passes with good behaviour, risk will be reduced. If the residence is approved by a parole officer, risk will be reduced. If there are curfews and random checks, risk will be reduced. If there is no association with minors, risk will be reduced. If there are random police checks, risk will be reduced. Engagement in programs, including sex reduction, can reduce risk. The medication can reduce risk.
[36] Dr. Ramshaw acknowledged that if the subject is supervised for a period of ten years, there is likely a higher probability of stability. It is reasonable to expect that the risk could be managed. She acknowledged that Mr. S.S. has never been monitored in this way before.
[37] Dr. Ramshaw acknowledged that a long-term supervision order is a more powerful tool than a probation order.
[38] Charlotte Kennedy testified. She is a provincial probation and parole officer, and has been employed for twelve years. She has supervised Mr. S.S. in 2012 and 2013.
[39] Ms. Kennedy testified that at the outset of supervision, she utilizes a protocol called “Level of Service Inventory” (LSI). It assesses the risk to recidivate. When used with respect to Mr. S.S., it showed that he was of high-risk. It focuses on the “need” areas of a subject. For Mr. S.S., his deficits included family/marital; leisure/recreational; pro-crime attitude orientation; problem solving/self-management; anger management; and inappropriate sexual activity. Ms. Kennedy recommended counselling. He was referred to an in-house counsellor. He attended seven times, every two weeks. Ms. Kennedy got updates from the counsellor.
[40] In 2013, Mr. S.S. was supervised with respect to a second order, which involved a breach of the first order. He had breached the Sex Offender Registry, and failed to advise as to his address.
[41] Ms. Kennedy attempted to get Mr. S.S. involved with the Canadian Mental Health Association, but it did not happen. Mr. S.S. said he was working and had ten or twelve different jobs. Ms. Kennedy never asked for any paystubs and never called any of the employers to confirm employment.
[42] Ms. Kennedy testified that with respect to Mr. S.S.’s interactions with her, there were lengthy conversations. Mr. S.S. could be frustrating, and it was difficult to tell whether he was telling the truth.
[43] Ms. Kennedy’s overall impression was that Mr. S.S. could be challenging, it was difficult to tell whether he was telling the truth, and there were many contradictions. He became agitated frequently.
[44] Ms. Kennedy testified that she discussed anger issues with Mr. S.S. He agreed that he had anger issues, but said he could manage it. He said he had no problems with women.
[45] On cross-examination, Ms. Kennedy acknowledged that violations seemed to be focused on address violation. Otherwise, he always complied with conditions, and he always reported.
[46] While Mr. S.S. was considered to be high-risk for sexual offending, he was never referred for any treatment. At one point, he said he wanted group counselling. He also said he was interested in anger management counselling. In July, 2014, he was accepted into a program for stress management. He engaged in other counselling activities.
[47] Sarah Lowe testified. She is employed by Correctional Services Canada as a parole officer supervisor. She has never supervised Mr. S.S., and does not know him.
[48] Ms. Lowe testified that where a subject is in custody in a federal institution, there will be developed a correctional plan, and a release plan.
[49] The release plan will depend on an offender’s risk. For example, if the offender has an alcohol or drug issue, the plan is to ensure that the offender does not consume alcohol or drugs. If the issue is sexual, the plan is to ensure that the offender discloses all of his or her relations.
[50] Ms. Lowe testified that there is no guarantee that the Parole Board will impose relevant conditions, but if the proposed conditions are related to the offender’s risk, the Board will usually impose them.
[51] Ms. Lowe testified that if there is a breach of a long-term supervision order, she can suspend the order for some period, and can recommend that a charge be laid. Otherwise, the offender can be put into custody for 90 days, and a new plan can be developed.
[52] Ms. Lowe testified that one of the common conditions is that the offender’s residence be approved.
[53] Ms. Lowe testified that supervision of long-term offenders can include frequent meetings with a parole officer; release to a halfway house; a job search; a community maintenance program (twelve sessions); and community programming (17 sessions). She testified that counselling cannot be enforced unless it a condition of release imposed by the Parole Board.
[54] Ms. Lowe testified that suspension of release is a last resort.
[55] Ms. Lowe testified that difficulties encountered by offenders usually involve one of three models – the “motivational” model; the “deniers” model; and the “refusal to attend” model.
[56] The motivational model usually involves the offender struggling to understand what is required of him or her. Generally, meetings with a program officer to support the offender are required.
[57] The deniers model involves the offender who denies a need for support, or denies the underlying offence. The program officer will attempt to provide the offender with skills that will benefit him or her in coping notwithstanding the denial.
[58] If an offender simply refuses to attend, attempts are made to find out why this is occurring, and to encourage the offender.
[59] Ms. Lowe testified that an offender can be required to take sex drive medication if it is made a condition by the Parole Board.
[60] On cross-examination, Ms. Lowe testified that in the federal system, a male offender is usually assessed at Joyceville Penitentiary. Goals and objectives will be established together with timelines. Roughly two to four months are required to complete the assessment and recommend conditions.
[61] The development of a correctional plan depends on the length of the sentence. It would usually require two years to complete the correctional program. There are programs available in custody while in the federal system, and they are highly regarded. There are two streams for sex offenders. One of them involves 104 sessions, and it is a high intensity program. Motivational interviewing is included.
[62] With respect to an appropriate release and supervision plan, the intent is reduce risk. She will recommend conditions, and if they are accepted they will be imposed by the Parole Board.
[63] Conditions that are typically recommended include a residence requirement. Initially, this is likely to be community based at an institution that is staffed 24-hours per day, and has counselling available. There is a case-management team. Access to the community is gradually increased. Signing in and out is required, a full itinerary outside the institution is required, and there is a curfew. Privileges can be reduced if the system is abused. This sort of residence requirement is for 365 days, which can be extended by the Parole Board. Otherwise it terminates.
[64] Other typical conditions include not being in the company of a person under 16; a prohibition against attending at schools and playgrounds; and a prohibition on viewing or possessing pornography. The offender can be required to seek and maintain employment. Regular meetings can be scheduled. The offender can be required to sign releases for the obtaining of information. If the offender does not follow the plan, he or she can be suspended.
[65] A community release package is provided to the police.
[66] Tools can be provided to incentify the offender to take medication. Privileges can be reduced, and overnights can be limited.
[67] Ms. Lowe acknowledged that parole officers get specific training regarding long-term supervision orders.
[68] Dr. Percy Wright testified. He is a psychologist. As noted earlier, he assessed Mr. S.S. at the request of Dr. Ramshaw.
[69] Dr. Wright testified that he met Mr. S.S. only on one occasion, for two and half hours. The interview was at Toronto South Detention Centre.
[70] Dr. Wright prepared a report that was provided to Dr. Remshaw. Dr. Wright testified that it would be difficult to say that Mr. S.S. has a major mental illness. He did not see signs of any psychosis.
[71] A number of psychological tests were conducted, and some were compared with similar tests that had been conducted in the past. His conclusion was reproduced in the discussion of Dr. Ramshaw’s report above.
Submissions
[72] Ms. Frew, counsel for the Crown, submits that I should find that Mr. S.S. is a dangerous offender, and I should impose a sentence of detention for an indeterminate period.
[73] Ms. Frew submits that the four criteria that must be considered have been established by the Crown:
a) Mr. S.S. has been convicted of a “serious personal injury offence”;
b) this offence is part of a broader pattern of violence;
c) there is a high likelihood of harmful recidivism; and
d) the violent conduct is intractable.
[74] In connection with the last criterion, Ms. Frew notes that the issue of intractability is relevant at both the designation stage and the sentencing stage. At the designation stage, the issue is whether the offender will pose a significant threat in the future. At the sentencing stage, the issue is whether the threat can be successfully managed.
[75] Ms. Frew submits that there is no dispute that the offence of which Mr. S.S. has been convicted, sexual interference, is a serious personal injury offence. There also can be little dispute that, having regard to his criminal record, there is a high likelihood of harmful recidivism. The real issues are whether the offence of which Mr. S.S. has been convicted is part of a broader pattern of violence, and whether the violent conduct is intractable.
[76] Ms. Frew submits that Mr. S.S.’s conduct is part of a pattern. She submits that there are elements of similarity in all of the offences committed by Mr. S.S. In each offence, there is an element of violence. In several of them, there is a sexual component. In all of them, the victims were vulnerable.
[77] Ms. Frew submits that each of clauses (i), (ii), and (iii) of s.753(1)(a) have been satisfied. The Crown need only satisfy any one.
[78] Ms. Frew acknowledges that s.753 .(1)(a)(iii) is the most difficult for the Crown to satisfy, in that it must be established that the behaviour by the offender is of a “brutal” nature. However, that has been satisfied here, because Mr. S.S.’s conduct has been savage and cruel, and is likely to cause severe psychological harm.
[79] Ms. Frew submits that at the sentencing phase, I should determine, pursuant to s.753(4), that I should impose a sentence of detention for an indeterminate period. In looking at the alternatives, I should find that the imposition of a determinate sentence plus a long-term supervision order would be insufficient to protect the public. She submits that, at best, the evidence shows a mere “hope” that Mr. S.S.’s conduct can be controlled in the future, rather than any realistic possibility.
[80] Ms. Dann, counsel for Mr. S.S., submits that Mr. S.S. does not meet the criteria for designation as a dangerous offender.
[81] Ms. Dann agrees that the Crown must establish the four criteria mentioned by the Crown, but submits that two of them have not been established:
a) The Crown has not established the requisite pattern of conduct;
b) The Crown has not shown, beyond a reasonable doubt, that Mr. S.S.’s violent conduct is intractable.
[82] Ms. Dann submits that with respect to the “pattern” issue, the Crown must show a pattern of “repetitive behaviour” that has significant similarities. When one examines the predicate offence, and the five previous offences (not including convictions for breaches of probation orders), it cannot be concluded that there is sufficient similarity in the offences.
[83] Starting with the conviction, in 1995, for possession of a weapon for a dangerous purpose, there was no sexual element to the offence. While there was some element of violence, it involved a consensual fight.
[84] With respect to the conviction on March 3, 1998 of setting a fire and mischief endangering life, there was no sexual element although there was an element of violence.
[85] With respect to the conviction on April 14, 2004 of possession of child pornography, a degree of caution must be exercised in assessing the underlying facts. All that is available is a police summary. There is evidence that Mr. S.S. thought the person in the photograph was over 18 years of age, and in any event the age of consent was 14 at the time. He was convicted only of possession of child pornography, and nothing else.
[86] With respect to the conviction on July 31, 2007 of sexual assault with a weapon, it bears some similarity to the predicate offence but there are some significant differences. Mr. S.S.’s actions were impulsive, the victim was an adult, and there was no suggestion of any predatory behaviour. When one examines the reasons for sentence, it is clear that Mr. S.S. did not follow through on any sexual act. There was no attempt at intercourse. Mr. S.S. could have committed it but did not do so. He was not the cause of a subdued state on the part of the victim. He was acquitted of the weapon’s charge.
[87] With respect to the conviction on December 18, 2012 of theft under $5,000, apart from the fact that the DVDs that were stolen were pornographic, there is no similarity whatsoever to the predicate offence or any of the other offences.
[88] With respect to the predicate offence itself, it is noted that there was no violence alleged or established, and the offence consisted of sexual touching.
[89] Ms. Dann submits that Dr. Ramshaw herself noted little pattern or motivation to the past offences.
[90] With respect to s.753 .(1)(a)(iii), the Crown would need to establish behaviour by Mr. S.S. that is of a “brutal nature”. His conduct simply does not meet this standard. As conceded by the Crown, it is rare that this criterion can be met. In the predicate offence itself, the victim does not allege any physical harm, nor was any established.
[91] For these reasons, Ms. Dann submits that the Crown cannot establish, beyond a reasonable doubt, that the predicate offence is part of a broader pattern of violence.
[92] With respect to the issue of intractability, Ms. Dann submits that the onus is on the Crown to establish that Mr. S.S.’s condition cannot be treated or controlled. The Crown cannot establish this beyond a reasonable doubt.
[93] Ms. Dann points out that Mr. S.S. has had some periods of stability in the community. The conviction for sexual assault and the conviction for the predicate offence were separated by seven years.
[94] Dr. Ramshaw testified that age will produce a decline in impulsive behaviour and sexual impulses. While she glibly suggested that Mr. S.S. might be 95 before this happens, it cannot be said that that was serious estimate. The expert evidence shows that there is a decline in aggression and impulsivity with age.
[95] Ms. Dann points out as well that Dr. Ramshaw acknowledged the availability of programs and treatment for persons in the position of Mr. S.S. These might well improve Mr. S.S.’s prospects of controlling his behaviour, and at the very least the court cannot be satisfied beyond a reasonable doubt that that is not the case. Mr. S.S. took some programs while he was incarcerated in British Columbia, and his incentive to do so would be improved with external motivations. Indeed, Dr. Ramshaw testified that treatment programs are most effective when they treat maladaptive features. Motivational interviewing is one. There is no evidence that Mr. S.S. has had them made available. He has shown that he will attend programs if encouraged to do so. He even took some programs when he was out of custody.
[96] Ms. Dann notes that Ms. Kennedy testified that Mr. S.S. took any programs she suggested. When Dr. Wright administered psychological tests to Mr. S.S., it was noted that he was motivated to take treatment. This should not be disregarded. At least one of the psychological tests showed that Mr. S.S. recognizes some of his problems.
[97] In the final analysis, Ms. Dann submits that the Crown has not proven beyond a reasonable doubt that Mr. S.S.’s condition is intractable.
[98] For these reasons, Ms. Dann submits that I should not designate Mr. S.S. as a dangerous offender.
[99] In the alternative, Ms. Dann submits that if I find Mr. S.S. to be a dangerous offender, I should apply s.753(4)(b), and I should impose a determinate sentence on Mr. S.S. and order that he be subject to a long-term supervision order. She submits that, pursuant to s.753(4.1), there is a “reasonable expectation” that this will adequately protect the public against the commission by Mr. S.S. of a serious personal injury offence.
[100] Ms. Dann submits that it is clear from the evidence that with sufficient resources, Mr. S.S.’s condition can be managed. Contrary to the submission of the Crown, this is not a mere “hope”. Dr. Ramshaw was firm in her evidence that with sufficient resources, Mr. S.S.’s condition is likely manageable.
[101] It is clear from Ms. Lowe’s evidence that reasonable conditions for the release of Mr. S.S. would be that he report every day, that he take sex reduction medication, or at least be incentivized to do so, that he be subject to random checks, that he seek and maintain employment, as well as other conditions. He has said he is willing to take sex reduction medication. If he is sentenced to a term in the penitentiary, there will be enough time to develop a reasonable release plan. He can be released into the community on a gradual basis, increasing his freedoms. He can be subject to extensive monitoring and supervision. Incentives for compliance can be built into a supervision order, and he can be suspended for up to 90 days.
[102] Ms. Dann submits that, in the final analysis, the public can be adequately protected if I decline to designate Mr. S.S. as a dangerous offender, and instead apply the provisions of s.753.1 and impose a sentence of imprisonment and a long-term supervision order, or in the alternative if I find that he should be designated a dangerous offender, I can apply s.753(4)(b), and impose a term of imprisonment and a long-term supervision order.
Analysis
[103] The relevant provisions of the Criminal Code are attached as an appendix to these reasons.
[104] At the risk of paraphrasing unduly, assuming the consent of the Attorney General has been obtained, and an assessment under s.752.1 has been obtained, (both of which have occurred here) a dangerous offender application is governed by s.753. If the offender has been convicted of a serious personal injury offence (and there is no dispute about that here), the Crown must establish:
a) a “pattern of repetitive behaviour” showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour;
b) a “pattern of persistent aggressive behaviour”, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour; or
c) behaviour 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 restraint.
[105] If the court finds the offender to be a dangerous offender, the court may impose a sentence of detention for an indeterminate period; impose a term of imprisonment plus a long-term supervision order; or impose a determinate sentence for the offence.
[106] If the court does not find the offender should be designated as a dangerous offender, the court may apply s.753.1, and find the offender to be a long-term offender, and impose a sentence of imprisonment and a long-term supervision order.
[107] The parties agree that the leading case on the interpretation of these provisions is R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, which was actually a case in which it was determined that s.753 of the Code is constitutional. The reasons of eight of the nine judges who decided the case were delivered by Côté J., and Karakatsanis J. delivered separate reasons dissenting in part.
[108] Côté J., in the course of her reasons, considered the earlier case of R. v. Lyons, [1987] 2 S.C.R. 309. At paras 26 and 27, she stated:
In Lyons, Justice La Forest read the objective element of the designation – the requirement that the predicate offence be a “serious personal injury offence” – together with the subjective element – the “threat” assessment – and concluded that four criteria were “explicit” from the language of s.753(1): (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable. The last three criteria are part of the assessment of the “threat” posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:
Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-begin of others or, in the case of sexual offences, conduct causing injury, pain or other evil to the person. Also explicit in one form or another in each subparagraph of s.[688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable.
The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before 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. I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness. [Emphasis added]
[109] It is clear that Côté J. regarded the issue of “intractability” as being relevant at both the designation stage and at the sentencing stage. She specifically overruled the decision of the Ontario Court of Appeal in R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, in which it was held that intractability is no longer an element. At paras. 29-31, she stated:
Mr. Boutilier relies on R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, for the proposition that intractability is no longer a requirement under the current dangerous offender regime. In my view, it is Lyons and not Szostak that remains authoritative on this issue.
The Ontario Court of Appeal in Szostak, at paras 52-55, concluded that intractability is no longer an element of dangerousness because it is incompatible with the exercise of discretion to impose a determinate sentence at the penalty stage. The Court of Appeal considered that an offender whose conduct is intractable should rarely, if ever, be eligible to receive a lesser sentence.
I respectfully disagree with this conclusion. As I will discuss below, the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence.
[Emphasis added]
[110] It is clear that intractability is relevant at both stages of the inquiry, that is, the designation stage and the penalty stage. As Côté J. stated at para. 31, “[t]he designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat.”
[111] In R. v. I.B., 2018 ONCJ 215, Greene J. put the distinction somewhat differently, at para. 77, where she stated: “At the designation stage, intractability relates to whether or not the conduct can be treated. At the sentencing stage, the court has found that the conduct cannot be treated so the question becomes can the conduct be managed.” At para. 94 she pointed out that unlike the dangerous offender provisions, the court need not find that the conduct is intractable before making a long-term offender order.
[112] Under s. 753(1)(a)(i), the Crown must show a “pattern of repetitive behaviour” by the offender. This requirement has been interpreted by Greene J. in R. v. Burton, 2018 ONCJ 153. At para. 56, she stated:
56 The pattern of repetitive behaviour must be sufficiently similar to allow the prediction that the offender will offend in the same way in the future (R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963(C.A.) at paragraph 40). The offences, however, need not be the same in every detail and they may even be different in kind as long as there are sufficient other similarities between the different offences. The fewer the incidents, however, the greater the number of similarities that are required. (R. v. Akbar, 2014 ONSC 3700 (S.C.J.)).
[113] At para. 57 of her reasons, Greene J. quoted from the decision of MacDonnell J. in R. v. Dorsey, [2009] O.J. No. 5368 (S.C.J.). She stated:
In R. v. Dorsey, [2009] O.J. No. 5368 (S.C.J.), pattern was described as follows at paragraph 98,
I agree that in order to satisfy paragraph (i) and (ii), the Crown must establish, among other things, that the predicate offences form part of a pattern of repetitive or persistent behaviour. A pattern of behaviour is something more than a mere history of criminal activity. To constitute a pattern, there must be something that connects prior incidents together in a manner that justifies considering them as a whole. Similarity can supply the requisite degree of connection, and where the number of prior incidents is low, similarity may be crucial; R. v. Smyth, [2007] O.J. No. 1946 (Sup. Ct.). At paragraph 63. However, “similarity…can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims…[and] similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous”: R. v. Neve (1999), 1999 ABCA 206, 137 C.C.C. (3d) 97, at paragraph 113 (Alta. C.A.). [Emphasis added]
[114] In R. v. Tremblay, 2010 ONSC 486, Karakatsanis J. (as she then was) stated at para. 98:
To determine whether there is a pattern sufficient to predict future conduct, a trial judge may consider evidence of:
i) what type of conduct was involved,
ii) who, generally, the victims were, and
iii) what motivated the offender to commit the offences.
[115] I respectfully agree with the analysis of Greene J., MacDonnell J. and Karakatsanis J. The Crown must establish a pattern of repetitive or persistent behaviour. This is something more than a mere history of criminal activity. There must be something that connects the offences. There must be a degree of similarity. The offences need not be identical but there must be a common thread.
[116] I am not convinced, beyond a reasonable doubt, that the offences of which Mr. S.S. has been convicted, including the predicate offence, have that degree of similarity, or a common thread, to be considered a “pattern”. While there might be some semblance of similarity between a couple of the offences, there is no discernible pattern when all of them, or even a representative number of them, are considered. When I consider the factors outlined by Karakatsanis J. in Tremblay, there is little similarity in the type of conduct, the victims, or the motivation.
[117] As noted earlier, with respect to the weapon conviction, there was no sexual element and the issue originated in a consensual fight. With respect to the mischief charge, there was no sexual element although violence was clearly present. With respect to the child pornography charge, there was no actual sexual illegality when it came to the victim. There is evidence that Mr. S.S. thought the victim was at least 18 years of age, and in any event she had attained the age of consent. With respect to the charge of sexual assault involving bodily harm, it involved impulsive behaviour against an adult, the evidence showed no attempt at intercourse and no predatory behaviour. Mr. S.S. was acquitted on the weapon’s charge. The theft under charge involved no similarity to the predicate offence or any of the other offences. The predicate offence involved no violence and sexual touching only.
[118] Section 753(1)(a)(ii) also requires a “pattern”, in this case of “persistent aggressive behaviour”. I am not satisfied that that criterion has been established either. The child pornography charge and the theft under charge do not disclose any aggressive behaviour, and I am not convinced that the charges as a whole disclose any pattern.
[119] While the Crown placed some reliance on s.753(1)(a)(iii), I am not convinced that Mr. S.S.’s behaviour is of a “brutal nature”, as contemplated in that provision.
[120] I am also not convinced that the Crown has proven, beyond a reasonable doubt, that Mr. S.S.’s conduct is intractable. As stated by Côté J. in Boutilier, at para. 27, “intractable” conduct is conduct that the offender is unable to surmount. As acknowledged by Dr. Ramshaw, many techniques, such as motivational interviewing and sex offender treatment, have simply not been utilized. Mr. S.S. has expressed a willingness to utilize them. Intractability has not been shown, at least beyond a reasonable doubt.
[121] For these reasons, I am not persuaded beyond a reasonable doubt that the Crown has established the pre-requisites for a finding that Mr. S.S. should be designated a dangerous offender.
[122] I find, however, that the Crown has established that Mr. S.S. should be found to be a long-term offender, pursuant to s.753.1. While Mr. S.S. has conceded the point, I will nevertheless briefly analyze the issue.
[123] Pursuant to s.753.1(1), the court may find an offender to be a long-term offender if it is satisfied that it would be appropriate to impose a sentence of imprisonment of two years or more; that there is a substantial risk that the offender will re-offend; and there is a reasonable possibility of eventual control of the risk in the community.
[124] It is clear, and counsel for Mr. S.S. concedes, that it would be appropriate to impose a sentence of imprisonment of at least two years for the predicate offence.
[125] Pursuant to s.753.1(2)(a) and (b)(ii), by virtue of his having been convicted of sexual interference and the two previous sexual offences, Mr. S.S. has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. I am convinced through the evidence of Dr. Ramshaw, which I have described in some detail earlier and which I will not repeat, that there is a reasonable possibility of eventual control of the risk in the community.
[126] I should say that if I had found Mr. S.S. should be designated as a dangerous offender, I would nevertheless determine, pursuant to s.753(4), that the appropriate disposition would have been to order that he serve a sentence of imprisonment for at least two years and be subject to a long-term supervision order. I am convinced, through the evidence of Dr. Ramshaw, that there is a reasonable possibility that the risk of Mr. S.S.’s continued criminal behaviour can eventually be controlled in the community.
The Appropriate Sentence
[127] Having found Mr. S.S. to be a long-term offender, I must impose upon him a sentence of imprisonment of at least two years, and impose upon him a long-term supervision order not to exceed ten years.
[128] Mr. S.S. has been convicted of a very serious offence. That offence is sexual interference, and the victim was his very young niece.
[129] In R. v. D.(D.) (2002), 58 O.R. (3d) 788 (C.A.), Moldaver J.A. (as he then was) gave significant guidance with respect to the issue of appropriate penalties for those who commit sexual offences against children. While the offender in that case committed sexual offences against a large number of young boys, Moldaver J.A. gave guidance as to the seriousness of sexual offences against children. At para. 45, he stated:
The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!
[130] In this case, Mr. S.S. has not only preyed upon an innocent child, he has also committed other sexual offences in the past. He must pay a heavy price.
[131] Mr. S.S. will be given a term of imprisonment of 10 years. He will be given credit for pre-sentence custody at a ratio of 1.5:1. In addition, he will be subject to a long-term supervision order, upon the expiry of that sentence, for ten years.
Gray J.
Released: May 31, 2019
APPENDIX
Excerpts from the Criminal Code
752 In this Part,
“court” means the court by which an offender in relation to whom an application under this Part is made was convicted, or a superior court of criminal jurisdiction; ( tribunal )
“serious personal injury offence” means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
752.1 (1) On application by the prosecutor, 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 offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she 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 restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.
(2) An application under subsection (1) must be made before sentence is imposed on the offender unless
(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and
(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.
(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply.
(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.
(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which 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.
(3) 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.
(3.1) The court may not impose a sentence under paragraph (3)(a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that
(a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) and (b) apply; and
(b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a).
(4) and (5) [Repealed, 2008, c. 6, s. 44 ]
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.
754 (1) With the exception of an application for remand for assessment, the court may not hear an application made under this Part unless
(a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application;
(b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and