Court File and Parties

COURT FILE NO.: CR-17-0019-000 DATE: 2020-02-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen J. Lefebvre & T. Boisvert for the Crown

- and -

R.R. K. Matthews, A. Pollak & S. Abotossaway for the Respondent Respondent

HEARD: November 25, 26, 27 & 28, 2019, at Thunder Bay, Ontario Mr. Justice D. C. Shaw

WARNING:

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons For Judgment

Overview

[1] These are my reasons for judgment on a dangerous offender application brought by the Crown pursuant to s. 753 of the Criminal Code.

[2] On this sentencing hearing, the Crown seeks a declaration that the offender, R.R., is a dangerous offender. On March 21, 2019, the Attorney General for the Province of Ontario consented to this dangerous offender application, pursuant to s. 754 (1) (a) of the Criminal Code.

[3] The defence submits that the Crown has failed to prove beyond a reasonable doubt that Mr. R. is a dangerous offender. The defence submits that Mr. R. should be found to be a long-term offender. Pursuant to s. 753(5) of the Criminal Code, if the court on a dangerous offender application does not find an offender to be a dangerous offender, the court may treat the application as an application to find the offender to be a long-term offender.

[4] The Crown and the defence agree that whether Mr. R. is found to be a dangerous offender or whether he is found to be a long-term offender, it is appropriate in the circumstances of this case that he be subject to long-term supervision for a period of 10 years. The Crown is not seeking detention in a penitentiary for an indeterminate period pursuant to s. 753(4.1).

[5] The Crown and the defence also agree on the appropriate sentence for the convictions of Mr. R. on the predicate offences. Mr. R. has served 42 months of pre-sentence custody. The Crown and the defence agree that Mr. R. should serve a further 33 months imprisonment, commencing on the date that sentence is imposed. If Mr. R. is given credit for pre-sentence custody at a rate of 1.5 to 1 for time served, his sentence for the predicate offences would effectively be a sentence of eight years imprisonment.

[6] The issue is therefore whether Mr. R. should be found to be a dangerous offender or a long-term offender.

Predicate Offences

[7] Before dealing with the evidence heard on the dangerous offender application, I will review the predicate offences that initiated the dangerous offender application.

[8] Following a trial before me, sitting without a jury, I found Mr. R. guilty of two counts of sexual assault, contrary to s. 271 of the Criminal Code and one count of touching for a sexual purpose, contrary to s. 151 of the Criminal Code. The Crown and defence agreed at the dangerous offender hearing that the charge under s.151 should be stayed on the basis of R. v. Kienapple, [1975] 1 S.C.R. 729.

[9] The victim in each of the two convictions is B.W., the daughter of Mr. R.

[10] The charges relate to two separate incidents.

[11] The first incident occurred when Ms. W. was 14 years of age.

[12] Ms. W. was raised by her mother until her mother passed away when she was 11 years of age. She lived with her grandmother until she was 14 years of age when she went to live with her father, Mr. R. in Thunder Bay.

[13] One evening at the end of her grade eight year, Ms. W. became intoxicated while drinking with friends. She went back to her father’s home. Her father said “let’s go for a ride to sober you up.” Before they went for the drive, her father gave her more alcohol.

[14] She and her father got into his truck. He drove. She was in the passenger seat. No one else was in the truck. They drove around the city. Ms.W. was going in and out of black-outs. She awoke from her blackout in the passenger seat. Her father’s right hand was down her pants, in her vagina. Her father was in the driver’s seat. She realized what was happening and immediately grabbed her father’s hand and pulled it out. She could not remember if she said anything to him. She was in and out of her blackouts. She threw up. She remembers that they were pulled over to the side of the road and her father was cleaning her up in the area of her chest. She tried to run away. Her father pulled her toward his vehicle, put her in, slammed the door and they drove back home. Her next memory was waking up in her bed, dressed in her pajamas.

[15] She did not report the incident to the police at the time because she was scared and did not think anyone would believe her. She later did tell her grandmother, her cousin and her aunt about the incident.

[16] Her father’s behaviour changed after the incident. He would give her clothes, make-up and marijuana. He would say to her, “you look like your mother”, “you look yummy”, “I like you in those tight leggings.”

[17] Ms. W. continued to live with her father until grade nine when she moved in with her aunt and cousin. She moved to Oshawa shortly thereafter. Ms. W. then moved back to Thunder Bay a couple of times and lived with her grandmother.

[18] The second incident occurred when Ms. W. was 18 years of age.

[19] She was partying with her friends and her brother’s friends at her brother’s apartment in Thunder Bay. She said that on a scale of 1 to 10 of intoxication, she was a 4.

[20] Her father came to the apartment. She ended up going for a ride with him in his car. He brought large bottles of an alcoholic drink. She drank one of the bottles. Her father parked the car on the property of an auto repair centre, behind a building.

[21] Mr. R. had cocaine in a pouch. Both he and Ms. W. had some of the cocaine. She felt “really high and really drunk.” At this point on a scale of one to ten of intoxication, she was a nine. She went outside. She did not remember how she got back into the vehicle. She was in the back seat. Her father pulled his pants down and pulled her pants down. He was on top of her. His penis and her vagina were touching. She said his penis was inside her vagina, but she did not see his penis and was assuming it was his penis.

[22] She could not see his hands or his arms while this was happening. She did not know how the incident stopped. She was in and out of a blackout.

[23] The next thing Ms. W. remembered of the incident was “freaking out.” She was walking. Her father pulled over to the side of the road, yelling at her to get in. She got in the vehicle and was dropped off at her brother’s apartment. She remembered passing out on the floor of the apartment and waking up the next day.

[24] She did not report the incident to the police at that time. She felt that people would judge her, that no one would believe her and that her family might hate her.

[25] In April 2016, after Ms. W. was assaulted by another man whom she had met online, she disclosed to police the sexual assaults by her father.

Criminal Antecedents of Mr. R.

[26] Mr. R. has an extensive criminal record. Not including the two predicate offences, Mr. R. has 61 convictions under the Criminal Code and the Controlled Drugs and Substances Act (including its predecessor act, the Narcotic Control Act), between June 28, 1978 and April 12, 2017.

[27] Mr. R. has three prior convictions for sexual assault.

[28] He has four convictions for driving while impaired and nine drug related convictions.

[29] He has three convictions for assault and one conviction for assault causing bodily harm.

[30] He has 18 convictions for breaches of court orders.

[31] He has served approximately 20 terms of provincial incarceration and 3 terms of federal incarceration.

[32] On this application, the Crown tendered as exhibits, with the consent of the defence, five volumes of records for my review:

Volume 1. Behavioural History Volume 2. Correctional Service Canada Records Volume 3. Treatment History Volume 4. Ministry of the Solicitor General and Correctional Services Records Volume 5. Child Welfare Records

[33] The first four volumes pertain to Mr. R.’s convictions and incarcerations. The fifth volume contains records from Dilico Anishinabek Family Care, related to children in the care of Mr. R.

[34] It was agreed by the Crown and the defence that the documents in those exhibits were being tendered for the proof of the truth of their contents. The defence did not contest the accuracy of what was contained in the documents but said that the issue was the weight to be given to the contents.

[35] Dr. Mark Pearce conducted a psychiatric assessment of Mr. R. pursuant to s. 752.1 of the Criminal Code. Dr. Pearce met with Mr. R. for approximately 4 ½ hours for the assessment and reviewed approximately 6,400 pages of records related to Mr. R. Dr. Pearce prepared a lengthy report and testified at the hearing of the application.

[36] Of greatest significance for the purposes of this dangerous offender application are the three prior convictions for sexual assault. Details surrounding these three prior sexual assault convictions are found in the exhibits and in the admissions made by Mr. R. to Dr. Pearce.

a) Sexual Assault - December 1986

[37] On January 5, 1988, Mr. R. pleaded guilty in the Ontario Court (Provincial Division) to sexual assault of his wife, S., whom he had married in 1986 when she was 18 and he was 22 years of age.

[38] The police synopsis in Volume 1, Behavioural History indicates that while the victim was with Mr. R., he woke her up, in a drunken state, early in the morning and demanded she make him something to eat. The victim told him to make himself something to eat. A few minutes later, Mr. R. returned to the bedroom, got back into bed and pulled down the victim’s panties. He put two fingers inside her vagina and pulled down very hard, causing her to bleed. She was seven months pregnant. The victim stated that she experienced considerable pain. As a result, she placed herself in hospital and received four stitches to close the wound. Mr. R. was sentenced to 89 days imprisonment and one-year probation on this sexual assault conviction.

[39] At his assessment with Dr. Pearce, Mr. R. said he pleaded guilty to “get it over with.” He said “I didn’t do nothing wrong.”

[40] However, I note that in 2004, Mr. R. was referred to Canada Correctional Service’s Regional Psychiatric Centre (Prairies), for treatment within the Clearwater Sex Offender Program. The report from the Program, dated April 27, 2004 relates that Mr. R. reviewed the report and stated:

I realize now that I did sexually assault my victims and I recognize the harm that I did to them. It hurts me to know how much I have hurt others. I feel much remorse and guilt for the offences I have committed (both sexual and violent). I admit I did hurt my ex-partner and I shouldn’t have. I need to apologize to many people for the things I have done to them.

[41] The defence does not contest the accuracy of the police synopsis and, in fact, has agreed that the records have been tendered for the proof of the truth of their contents. Based on this agreement, and the admission of Mr. R. to Correctional Service Canada that he did sexually assault his victims and did hurt his ex-partner, I find that this sexual assault occurred as set out.

b) Sexual Assault November 1990

[42] On March 1, 1992 Mr. R. was tried and convicted of a sexual assault on A.G. that occurred in November 1990. The trial was held in the Ontario Court (General Division) before Kurisko J. There is a transcript of the trial and sentencing.

[43] The victim was 15 years of age at the time of the offence. She was staying overnight at the home of her cousin in Thunder Bay.

[44] She was sleeping on the floor, on top of two comforters and under a blanket. She was wearing a long T-shirt and underwear.

[45] She was awoken at about 5:30 a.m. to find Mr. R. kneeling in front of her, with her legs spread opened and his head down, licking her vagina. Her underwear was gone.

[46] The victim screamed for her cousin who came. Mr. R. jumped up, pulled up his pants and sat on a couch. He asked her to telephone a taxi which she said she did, and he left.

[47] Mr. R. testified that he had no recollection of being at the house. He said he had been drinking for a week and was on medication as well.

[48] The court found Mr. R. guilty. In the sentencing of Mr. R., the court stated that in the hope of rehabilitation through treatment for alcoholism it would suspend sentence and place Mr. R. on probation for two years.

[49] The Crown appealed the sentence. The appeal was allowed, the suspended sentence with two years probation was set aside and a sentence of three months imprisonment was imposed.

[50] Mr. R. told Dr. Pearce that he was so drunk that he “made a move” on the victim who was asleep, laying on the floor. He could not provide any additional details. He said, “I felt guilty and I said in court that I’m sorry for my behaviour. I was guilty.”

[51] I find that this sexual assault occurred as described in the transcript of the trial proceedings.

c) Sexual Assault May 1, 1999 to October 1, 1999

[52] On March 1, 2002, Mr. R. was sentenced in the Ontario Court of Justice by DiGiuseppe J. after being found guilty on a charge of sexual assault against L.W.

[53] L.W. and Mr. R. had known each other for approximately 10 years. They met when L.W. was 17 years of age and Mr. R. was in his 30’s. They had two children, one of whom is Ms. W., the victim in the two predicate offences that initiated this dangerous offender proceeding.

[54] L.W. and Mr. R. were not in a relationship at the time of the assault. On the night in question, they met at a bar and Mr. R. led her to his room at a nearby rooming house. He forced vaginal intercourse without her consent. He inserted his hand into her vagina, injuring her. He told another male to have sex with her against her will.

[55] Justice DiGiuseppe found that the assault traumatized the victim. The Victim Impact Statement filed with the court listed a number of problems that L.W. had experienced since the assault, including stress, sleeplessness and depression. DiGiuseppe J. concluded that the assault had had a significant harmful-effect upon her.

[56] Mr. R. was sentenced to five years imprisonment, consecutive to time being served.

[57] I find that this sexual assault occurred as described in the reasons of DiGiuseppe J.

Sexual Assault Allegations Where Charges Not Laid

[58] On the hearing of the application, the Crown tendered the evidence of two women, K.O. and C.T., with respect to incidents where they were allegedly sexually assaulted by Mr. R. but where no charges were laid.

[59] In R. v. Lewis (1984), 46 O.R. (2d) 289 (C.A.) the Court of Appeal held that on a dangerous offender application evidence as to incidents of a sexual nature involving the offender, although the incidents have not resulted in convictions, may be adduced as relevant in establishing “a pattern of repetitive behaviour by the offender” under s. 753 (1)(a)(i), “a pattern of persistent aggressive behaviour by the offender” under s. 753 (1)(a)(ii) or “a failure to control his or her sexual impulses” under s. 753 (1)(b).

[60] The evidence must be introduced in accordance with the regular rules of evidence. The Crown must prove these aggravating factors beyond a reasonable doubt.

[61] The defence did not dispute that the Crown was entitled to lead this evidence, but submitted, after the evidence had been heard, that the Crown had failed to prove these uncharged allegations beyond a reasonable doubt.

a) Allegations of K.O.

[62] K.O. is 53 years of age. She is originally from G[…] First Nation. She has known Mr. R. from a young age.

[63] L.W., the victim in the sexual assault conviction of 1999, described above, is the deceased sister of K.O. K.O. is the aunt of Ms. W., the victim in the two predicate offences.

[64] K.O. testified on the hearing of the application that when she was 15 or 16 years old, she was at a wedding or similar event in Thunder Bay. She later said that she was not at the wedding itself but rather at the reception following the wedding. She was drinking. After the event, she went with a male, whom she liked, to an after-party at a motel where he had a room. Mr. R. and another male were there.

[65] There were two beds in the room. Alcohol was present. When she and her male friend, whom she identified as “A” because she was reluctant to name him, arrived, they began to drink. They ended up in one of the beds and had consensual intercourse. Mr. R. and the other individual, whom she identified as “B”, were drinking on the other side of the room. The alcohol started to affect her. She said “things got blurry and fuzzy.”

[66] She said that Mr. R. and subsequently B, got on top of her and had sex with her. She said that Mr. R. had vaginal intercourse with her. She remembers vaguely seeing him. She said she just laid on the bed and did not move. She said that she did not consent to sex with either Mr. R. or B. She had no doubt that Mr. R. had sex with her. Initially in her evidence, she said that the room was dark. She later said that a light was on.

[67] She first told the police about the incident in 2018, after the charges involving Ms. W., her niece, were in court. She testified that she felt that she had to say something for both her sister, L.W., and her niece, Ms. W. She told the police that she was not strong enough to go through criminal charges against Mr. R. As well, she said, A. and B. are now doing well in their lives. She did not want to involve them.

[68] K.O. was cross-examined on her consumption of alcohol and its effect on her memory. She conceded that she was “really drunk” at the time of the incident but that she could still walk and was not falling all over the place. She said that the incident comes back in flashbacks. Although she did not know exact details, she said she knew that the incident with Mr. R. happened.

[69] She said she had not told her sister, L.W. about the incident.

[70] She said that she told the police that she had come forward to protect and support Ms. W.

[71] I am satisfied that the evidence of K.O. establishes beyond a reasonable doubt that K.O., was sexually assaulted by Mr. R.

[72] Although K.O. acknowledged that she was “really drunk” at the time, I am satisfied that she was not so drunk that she would be unable to remember central events of having consensual sex with A. and then being sexually assaulted by Mr. R and B.

[73] It is understandable that alcohol and the passage of more than 35 years would affect her ability to recall whether the motel room at night was dark or whether there was a light on, or whether the evening started out at a wedding or a reception after the wedding. However, K.O. was able to recall where the wedding reception occurred, namely, at “the big hotel in downtown Fort William, the one on May Street.” She knew the location of the motel in Port Arthur “by the CNIB on Cumberland Street.” She was able to recall that she was at the reception with her aunt, B.B.. She believed that the wedding was for one of the “King” boys, although she had not been invited. She knew that most of the community of G[…] was there. She knew that she went to the motel with A, in his car. As for the incident, she said she had a picture in her mind of Mr. R. and B. on top of her. She knew that the penis of Mr. R. was going in her vagina.

[74] K.O.’s memory of the essential features surrounding the sexual assault - “the who, what, when and where” of the event - was not meaningfully undermined on cross-examination.

[75] K.O. presented her evidence in a straightforward manner that did not give rise to concerns of credibility or reliability. She readily acknowledged that she had come forward to report the incident to police after more than 35 years to protect and support B.W. and L.W., as victims of sexual assaults by Mr. R. Her motivation, while warranting scrutiny, is understandable in the circumstances. She did not try to hide or minimize her reasons for telling the authorities of these events.

b) Allegations of C.T.

[76] C.T. is 26 years of age. She is a member of G[…] First Nation. She is remotely related to Mr. R.

[77] When she was 14 years of age, in the summer of 2009, she resided at Mr. R.’s home in Thunder Bay for a few months with several other people while her mother was visiting in England.

[78] She had met Mr. R. on a couple of occasions before this.

[79] She had been staying in the basement of Mr. R.’s. three floor townhome with her brother. Mr. R. and his girlfriend slept on the top floor.

[80] C.T. was drinking and smoking marijuana a few months before she lived at Mr. R.’s home.

[81] C.T. said that one evening Mr. R. gave her a 26-ounce bottle of vodka. She drank the entire bottle. She woke up the next day at lunch time. She went upstairs and saw Mr. R. at a table. He said to her “you taste good.” She testified that she understood his comment to mean that he tasted her on her vagina. His remarks made her feel dirty and ashamed.

[82] C.T. related another incident where Mr. R. sucked on her toes.

[83] Mr. R. was 49 years of age at the time of the alleged incidents.

[84] C.T. was cross-examined on her evidence by counsel for Mr. R.

[85] The Crown concedes that there is not sufficient evidence to find beyond a reasonable doubt that Mr. R. sexually assaulted C.T.

[86] The Crown submits, however, that the fact that Mr. R. supplied alcohol to a vulnerable young woman and his comments to C.T. the next day, together with his sucking her toes, is proof of bad conduct that is relevant to the assessment of his pattern of behaviour. The Crown submits that the evidence also shows that Mr. R. lacks insight into his conduct.

[87] The defence submits that the evidence of C.T. does not amount to proof of sexual assault but agrees that it is admissible under s. 757 of the Criminal Code which permits evidence of character and repute to be admitted on the question of whether the offender is or is not a dangerous offender or a long-term offender and is admissible in connection with a sentence to be imposed or an order made under Part XXIV of the Criminal Code.

[88] I find that the evidence of C.T. is admissible. There is insufficient evidence to establish a sexual assault. However, it can be considered for the limited purpose put forward by the Crown and the defence.

Victim Impact Statements

a) Victim Impact Statement of Ms. W.

[89] Ms. W. provided a Victim Impact Statement for the sentencing.

[90] In her statement, she said she gets panic attacks when she remembers events and when something reminds her of her father.

[91] She has tried on multiple occasions to die by overdosing with pills. She has deep scars on her arms from cutting herself.

[92] She is unable to concentrate on moving forward with school or finding a job because of court. When she goes to court, she becomes extremely depressed and gives up on her goals to try to better her life.

[93] On the eve of preparing her Victim Impact Statement, she relapsed and took drugs after having not used drugs for four years and having not used alcohol for three months.

[94] She struggles with forgiving herself. Her emotions and experiences with sex are “messed up.”

[95] She is still trying each day to heal herself.

b) Victim Impact Statement of K.O.

[96] In her Victim Impact Statement, K.O. stated that Mr. R. did not realize how his actions have impacted individuals, families and a community. She said that Mr. R. had destroyed “our ability to trust, love and have meaningful relationships.”

c) Victim Impact Statement of M.B.

[97] M.B. is a cousin of Ms. W. In her Victim Impact Statement, she stated: “When (Ms. W.) was a little girl, she was a shy, fun loving little girl. (She) wanted to be a cheerleader and hoped to go to school for nursing. After she was sexually assaulted by (Mr. R.), I never saw that light in her anymore. She would skip school, drink and smoke weed. She struggles with alcohol and drug addiction. She’s really sad to watch. She will get clean and then fall into using again. You never hear her talk about her hopes and dreams anymore.”

Background of Mr. R.

[98] Mr. R. is an Indigenous man of Anishinawbe descent.

[99] He was born […], 1960 in G[…] First Nation, approximately 195 kilometres north of Thunder Bay.

[100] Mr. R.’s parents are deceased. He has five siblings, one of whom died at two years of age in a tragic accident in the home.

[101] In a Gladue report, prepared for this sentencing, Mr. R.’s older sister is quoted as saying that their father was mean and that they grew up in a violent, abusive family where Mr. R.’s mother was continually beat up.

[102] Mr. R.’s father left the home when Mr. R. was eight or nine years of age. A few years later, Mr. R.’s mother began a relationship with another man who became Mr. R.’s stepfather. The two of them abused alcohol but eventually stopped drinking. Mr. R.’s sister said that once that happened, the family had a good life.

[103] Mr. R.’s mother attended residential school in Thunder Bay until she was in her early teens. She returned to G[…] after school where she eventually married Mr. R.’s father. Mr. R.’s sister also attended residential school in Thunder Bay.

[104] When Mr. R. was in public school, the school in G[…] only went to grade seven. Mr. R. was sent to live at a boarding home in Thunder Bay while he attended high school.

[105] Mr. R. related to the Gladue Services Worker, and to Dr. Pearce, that while in one of the boarding homes in Thunder Bay, he was sexually abused by a man who was becoming a priest. This man would get Mr. R. and the other young men drunk and then sexually abuse them.

[106] Mr. R. said that he turned to drinking a lot after this happened.

[107] Mr. R. stayed at school until grade nine or ten after which he went to work doing construction, demolition, carpentry, maintenance, logging, skidding and working on the highways. In 1976 he returned to G[…] where he stayed until he was 18 when he moved back to Thunder Bay. He has also lived in Winnipeg, Vancouver and Sudbury.

[108] Mr. R.’s first conviction, for break enter and theft, was in 1978.

[109] From that date forward, Mr. R. was convicted of a criminal or drug related offence almost every year for approximately the next 40 years except when he was incarcerated, with a total, as noted above, of 61 convictions prior to the predicate offences.

[110] His first penitentiary term, of five years, was imposed in 2002 for his sexual assault of L.W.

[111] His second penitentiary term, of two years, was imposed in 2009, after pleading guilty to two counts under s. 5(2) of the Controlled Drugs and Substances Act for possession for the purpose of trafficking and one count under the Criminal Code for possession of property over $5,000 obtained by crime and one day concurrent for failing to comply with a recognizance, with credit for the equivalent of 70 days of pre-sentence custody.

[112] His third penitentiary term, of two years, was imposed in 2012, after pleading guilty to a charge under s. 5 (2) of the Controlled Drugs and Substances Act for possession for the purpose of trafficking, which was imposed concurrent to a sentence of two years for possession of property over $5,000 obtained by crime.

[113] Mr. R. had some trouble recounting to Dr. Pearce his history of relationships with women in chronological order. He told Dr. Pearce that he had had serious relationships with six women with whom he had eight children. However, an assessment report prepared by a parole officer in February 2013, while Mr. R. was serving his third penitentiary term, indicated that Mr. R. had 11 children, ranging from 31 years to 3 months, with 8 different mothers. Mr. R. signed off on that report.

[114] Mr. R. acknowledged to Dr. Pearce that he had a long history of alcohol abuse, first consuming alcohol at age 16. In the 1980’s and 1990’s, he drank on a daily basis, experiencing hangovers and withdrawals. He incurred criminal charges related to his alcohol use. He said that he decreased his use of alcohol in 2000, but resumed in 2014, drinking up to 20 beers on a weekend. He told Dr. Pearce that he planned to avoid alcohol completely in the future and, when informed about anti-alcohol medication, such as antabuse, he said he would take it if it was recommended.

[115] Mr. R. told Dr. Pearce that he first consumed cannabis at age 20. He denied daily use and said he has not used it in years. He said he first used cocaine in approximately 1990. He said it had not been problematic. He planned on avoiding it going forward. He admitted to selling opioids but said he had never misused them. He denied abusing prescription products.

[116] Mr. R. attended at the Weendahmagen Alcohol and Drug Abuse Treatment Centre from August 17, 1992 to September 3, 1992 and completed the program. On discharge, he was to participate in anger management counselling, get a sponsor, attend AA meetings and get into an aftercare program. Records indicate that his sobriety lasted for only two weeks.

[117] He again attended Weendahmagen Alcohol and Drug Abuse Treatment Centre from September 15, 1994 to September 26, 1994 but was asked to leave before he completed the program because of his unsatisfactory conduct - not listening, not getting along with anyone, not completing assignments or tasks.

[118] Although Mr. R. told Dr. Pearce that he had not attempted suicide or engaged in self harm, records filed on this application indicate that he had been hospitalized in 1979 for 22 days for drinking and suicidal ideations. He was admitted to Lakehead Psychiatric Hospital on January 26, 2007 for two days after reportedly trying to end his life. He made a hanging gesture and cut his hand with a hunting knife. A long history of alcohol abuse was noted, beginning at age 11.

[119] Dr. Pearce indicated that notes from the detention centre, dated July 2016, reflect that Mr. R. had been consuming alcohol daily prior to his incarceration. He had also been taking clonazepam and percocets in the community. In October 2015, he had asked for pain medication for narcotic withdrawal. He admitted to the use of cocaine and oxycodone prior to being incarcerated.

[120] On November 12, 2016, January 25, 2017, June 19, 2017 and December 2017, Mr. R. was found by staff at the detention centre to be hoarding his medication. His use of clonazepam was ended by the jail in December 2017 because of this hoarding.

Child Welfare Records

[121] The child welfare records show that child welfare authorities were notified on a number of occasions that Mr. R. was using and selling drugs. Child welfare authorities were involved with Mr. R. from 1996 to 2015.

Correctional Service Canada Records

[122] There were over 300 pages of Correctional Service Canada records filed, relating to Mr. R.’s three penitentiary terms.

[123] In an assessment in 2002, following his conviction for sexually assaulting L.W., Mr. R. denied all his sexual assaults and was noted to have greatly minimized his propensity for violence.

[124] He expressed no remorse and displayed no empathy for his victims.

[125] It was recommended at the assessment that he be referred to the Regional Psychiatric Centre (Prairies) for the purpose of taking the Sex Offender Treatment Program at the Clearwater Unit. He was admitted to the Clearwater Unit on December 9, 2003. He successfully completed the program in April 2004. He was noted to have been an active participant who did his homework assignments.

[126] As noted above, in the discussion of Mr. R.’s convictions for sexual assault, Mr. R. acknowledged on completion of the Clearwater program that he had sexually assaulted his victims and that he had harmed them. He expressed feelings of remorse and guilt for the offences and acknowledged that his offences were selfish and unacceptable.

[127] Upon admission to Clearwater, his risk to reoffend sexually according to static and dynamic factors was assessed as moderate – high. On leaving the program, he was assessed as continuing to represent a moderate – high risk to reoffend sexually and/or violently.

[128] From October 5, 2004 to February 15, 2005 Mr. R. participated in and successfully completed the Elder Counselling Program. He was noted to have been an avid participant and worked well.

[129] A psychological report from the Rockwood Institute on April 13, 2005, found that Mr. R. fell within the moderate to low level of risk for sexual re-offence and a moderate level of risk for non-sexual violence.

[130] He was released on day parole on June 1, 2005. He resided at Crossroads Centre in Thunder Bay from June 6, 2005 to August 5, 2005. Records indicate that while at Crossroads he worked on maintaining his sobriety by attending meetings and programs at Crossroads and spiritual activities in the community.

[131] During his second penitentiary term, Mr. R. was accepted into the Ochichakkosipi Healing Lodge on June 15, 2010. The Lodge presented traditional Indigenous programming, intensive one on one counselling with an elder and an addictions program. A psychological assessment prepared prior to his acceptance to the Lodge, noted that Mr. R. minimized his full history of offending, displayed little regret for his actions or the harm caused to his family and displayed a fairly cavalier attitude towards his current set of convictions for possession for the purpose of trafficking and possession of proceeds of crime over $5,000.

[132] On October 1, 2010, the Lodge withdrew its consent to house Mr. R. due to his negative behaviours, excessive use of prescription drugs and interpersonal conflicts with staff and inmates.

[133] It was noted that G[…] First Nation had withdrawn its consent that Mr. R. return to the community because of plans that Mr. R. was alleged to have had to traffic crystal meth and crack cocaine in the community.

[134] An assessment dated December 3, 2010, prepared for a decision on statutory release, stated that Mr. R.’s lack of insight into his convictions was concerning, that he failed to recognize the consequences of his actions and failed to take ownership of his actions.

[135] During Mr. R.’s third penitentiary term, for possession of drugs for the purpose of trafficking and possession on proceeds of crime over $5,000, it was noted that while Mr. R. verbalized remorse for his actions, his repeat offending made it questionable how sincere this remorse was.

[136] The penitentiary records noted that Mr. R. had typically been motivated and respectful while incarcerated and while under conditional release. It was also noted that Mr. R. presented himself in a passive role with very little direction or control over his life. He had very little insight into his offending. He was unable to identify why he reoffends except for “greed” including being greedy for sex.

Evidence of Dr. Mark Pearce

[137] Dr. Pearce was qualified, on consent, as an expert in forensic psychiatry, to give opinions on risk assessment, treatment and management of high-risk offenders.

[138] Dr. Pearce has conducted approximately 90 dangerous offender assessments of which approximately 20 per cent to 25 per cent were for Indigenous offenders.

[139] Dr. Pearce found that while Mr. R. can present as likeable and charming, his unabated offending has shown that he is self-centred, impulsive and manipulative. He has evidenced criminality and lacks remorse. He has a need for stimulation, and he tends to live day-to-day. In the opinion of Dr. Pearce, Mr. R. meets longitudinal criteria for unspecified personality disorder with prominent anti-social traits.

[140] Dr. Pearce said that Mr. R. did not meet the criteria for a diagnosis of anti-social personality disorder. What he observed in terms of Mr. R.’s problematic personality traits are most of the features of anti-social personality disorder, itself, including a failure to conform to societal norms, failure to follow conditions imposed by a parole officer or court, impulsivity, high risk lifestyle, disregard for safety of himself and others, deceitfulness, manipulativeness, lack of remorse and lack of empathy towards others.

[141] Dr. Pearce also concluded that Mr. R. suffers from a significant polysubstance use disorder, but that alcohol and drugs were not always involved when he was offending. However, in his opinion, substance abuse did contribute to his criminality.

[142] To estimate Mr. R.’s likelihood of sexual recidivism, Dr. Pearce used three scoring tests:

• Psychopathy Checklist – Revised (PCL-R);
• Sex Offender Risk Appraisal Guide (SORAG );
• Static 99R.

a) PCL-R

[143] Dr. Pearce stated that psychopathy is the personality dimension that psychiatric experts believe to be most related to offending behaviours. The PCL-R is the “gold standard” for the measurement of psychopathy. The PCL-R samples 20 “domains” of personality and lifestyle functions, each of which may be scored 0, 1 or 2 thus rendering a total score on a continuum from 0 to 40, with 40 out of 40 points representing prototypical psychopathy.

[144] Dr. Pearce’s score for Mr. R. on the PCL-R was 25 out of a possible 40 points. That places him in the 62nd percentile with respect to a reference sample of North American incarcerates.

[145] Dr. Pearce reported that a score of 25 is a “fairly high” score but is not consistent with a diagnosis of psychopathy, which is generally considered to be a score of 30 or higher. Dr. Pearce stated in his report that the absence of psychopathy is generally a positive prognostic indicator.

[146] The score of 25 suggests that treatment will be challenging and that Mr. R. may not finish treatment. Risk management in the community could be challenging.

[147] The PCL-R is not a risk assessment test. The purpose is to diagnose psychopathy.

b) SORAG

[148] To estimate the likelihood of violent and sexual recidivism, Dr. Pearce scored Mr. R. on the SORAG. Mr. R. scored + 26, placing him in 8 of 9 ascending groups or lines. This is a high-risk category. Similarly scoring individuals recidivated sexually and/or violently at a rate of 89 per cent over 10 years of opportunity in the community.

[149] Dr. Pearce noted that the outcome data on the SORAG is somewhat dated and probably represents an over-estimate of risk. Crime rates have gone down about 15 per cent over 20 years. Mr. R. would still place in the same percentile rank but the per cent of people who reoffend, instead of being 89 per cent, would be in the low 70 per cent.

[150] Dr. Pearce said that the forensic psychiatric community does not know the answer yet as to whether the SORAG predicts reoffence for Indigenous offenders as well as it predicts for non-Indigenous offenders. He said that it might represent an over-estimate or an under-estimate of risk for Indigenous offenders, but that he did not know.

[151] The SORAG score is based on imminent release from custody.

c) Static - 99R

[152] Dr. Pearce also scored Mr. R. on the Static–99R., an actuarial instrument best used to predict the likelihood of future sexual offences. Mr. R. scored + 5. This is an “above average” or moderate to high score and suggests a moderate to high risk of future sexual offences. Similarly scoring individuals commit a new sexual offence at a rate between 23 per cent and 36 per cent over 10 years of opportunity.

[153] As with the SORAG, the scoring on the Static-99R assumes a near immediate release from custody. If Mr. R. was released after age 60, his Static-99R score would drop to + 3, which is an average or moderate score. Risk is subject to change over time. A significant part of the test is the offender’s age at release.

[154] Dr. Pearce testified that in terms of the actuarial risk assessments of the SORAG and Static-99R, and taking into consideration the PCL-R score, and a clinical assessment, if Mr. R. was released today, he would be in a moderate to high risk category for sexual reoffending. Dr. Pearce was asked about the relevance of the allegations of K.O. He said that if Mr. R. was found to have sexually assaulted K.O. (which I have found he did), it would make the prognosis more guarded and likely push up Mr. R.’s risk on the actuarial assessments.

[155] Dr. Pearce testified that if Mr. R. was released after age 60, he would be closer to the moderate side of risk because of his age at that time. Dr. Pearce said that he was “optimistic” about Mr. R.’s risk being lower in the future because of Mr. R.’s age, continued incarceration beyond today, and the prospect of more intervention or assertive supervision with graduated community release. Dr. Pearce testified that when Mr. R. is in his 70’s, there will be evidence of “burn out” and, statistically, there is much less risk of a sexual re-offence.

[156] Dr. Pearce testified that the SORAG and Static 99-R are moderately successful at predicting future risk. He said that they are not a crystal ball, but they are better than an individual clinician taking a best guess.

[157] Dr. Pearce said that Mr. R.’s Indigenous ancestry did not affect his opinion, using the risk assessment tests, but it would impact the treatment Mr. R. can receive because it would allow for culturally specific treatments that might be more effective.

[158] Dr. Pearce stated that he believed treatment could help Mr. R.’s personality problems, but that they were quite ingrained traits. He said that the best way to treat or help his personality problem was by assertive risk management which, together with aging, would be the most important factors in helping him reduce the expressions of his problematic personality traits. Dr. Pearce added that treatment may help a bit and that Mr. R. has benefitted from treatment in the past and has managed to complete parole. However, he seems to need a very long-term treatment program given the problems he has had for 40 years. Dr. Pearce noted that after Mr. R. completed the sexual offending programs in the penitentiary, he committed the predicate offences.

[159] In examination in-chief by the Crown, Dr. Pearce was asked about the criteria in s. 753 of the Criminal Code with respect to the designation of an offender as a dangerous offender. Dr. Pearce said that he believed that it is likely that Mr. R.’s behaviour has caused physical injury and or severe psychological damage to his victims. He said that Mr. R. has largely chosen to ignore the reasonable foreseeable consequences of his actions.

[160] The Crown asked Dr. Pearce whether or not there was a likelihood that Mr. R. would commit a further sexual offence. Dr. Pearce responded that it depends how one defines “likelihood.” He said that if “likelihood” was defined as a 51 per cent chance or more that he would reoffend, it was hard to say. Dr. Pearce stated:

It’s harder to get to that level with a risk assessment with him. But I certainly think there is a moderate to high risk of reoffence if he is just released with no conditions and that there is a good chance he will reoffend sexually, again in that setting in the community without any monitoring.

[161] Dr. Pearce said that, ideally, Mr. R. would, after this hearing, be placed into custody and get some treatment in custody before he has access to the community. On release, he recommended that Mr. R. be placed at a Community Correctional Centre for at least a year, and then, depending on how he does, move to a less supervised, less structured residence.

[162] Dr. Pearce also recommended that Mr. R. avoid having contact with persons with a criminal record, not attend a place where alcohol is the primary source of revenue for the facility, not be in possession of a weapon, have no unsupervised contact with children under the age of 16 and be required to disclose his relationships with females.

[163] Dr. Pearce testified that Mr. R. appears to function relatively well in a custodial setting and that he would expect him to function relatively well if he was incarcerated in a penitentiary for another 33 months, as is proposed on the joint submission of the Crown and defence. This custodial time would allow Correctional Service Canada to formulate a treatment plan.

[164] Dr. Pearce said that Mr. R. could benefit from a culturally based substance abuse residential program. He noted that Mr. R. has not had residential treatment for substance abuse since the 1990’s. He also noted that Mr. R. has not been on antabuse. He said that these are worthwhile attempts in treating a substance abuse disorder. That combined with close external monitoring would, in his opinion, make the prospects for treatability of Mr. R.’s substance abuse “good.”

[165] Dr. Pearce ­­­­testified that in-custody programs for Mr. R. should focus on anger management, violence prevention, sexual offender therapy and therapy geared toward family violence and substance abuse. Indigenous focused programs would be most beneficial for him.

[166] Dr. Pearce believed that Mr. R. seemed to genuinely want to live a more traditional Indigenous life moving forward.

[167] Dr. Pearce stated that at the completion of a further period of incarceration, followed by 10 years of supervision, he believes that Mr. R.’s risk to reoffend would fall somewhere between low to moderate.

[168] Dr. Pearce testified that Mr. R. seemed to be genuinely interested in making gains and wanting to take treatment. Mr. R. was amenable to the suggestions that Dr. Pearce put forth, including methadone which Mr. R. apparently has not been on before.

[169] Dr. Pearce said that Mr. R. was “definitely capable of displaying insight.” Dr. Pearce said that he found remorse very hard to measure. Mr. R. has said he is remorseful for his crimes, but that his repetitive behaviour of reoffending takes away from that.

Gladue Report

[170] The Gladue Report prepared for this application and sentencing sets out facts of Mr. R.’s upbringing that have been described above under the heading “Background of Mr. R.”

[171] The report contains recommendations developed by the Gladue writer, taking into consideration the Anishnawbe Medicine Wheel and teachings involved in Anishnawbe culture and spirituality that would include working with elders and spiritual people.

[172] The report indicates that Mr. R. would have access to a Gladue Aftercare Worker who could assist to make arrangements to work on the recommendations provided in the report.

[173] The report offers recommendations for healing through the following programs in the Thunder Bay area:

Kizhaay Anishinabe Niin Program (Thunder Bay Indigenous Friendship Centre)

• Cultural specific healing for men who abuse and are ready to take responsibilities for their actions.

Aboriginal Alcohol/Drug Worker Program (Thunder Bay Indigenous Friendship Centre)

• Offers referrals to treatment centres, healing lodges and recovery homes; treatment and aftercare programming; substance abuse assessments; individual counselling or other referrals.

Dilico Adult Residential Treatment Centre (Dilico Anishinabek Family Care Fort William First Nation)

• Treatment for alcoholism and drug dependency. Six week treatment program combines cultural teachings and mental health and addictions counselling. Twelve week after care program.

Counselling – Kelly Mental Health

• A private counselling practice.

Healing Circle (Sister Margaret Smith Centre)

• A drop-in healing circle held once a week facilitated by a traditional person with emphasis on holistic healing from substances abuse.

Cultural Resource Program (Thunder Bay Indigenous Friendship Centre)

• Cultural programming with access to counselling, support, traditional teachings, ceremonies and other preventative services.

Submissions

a) Crown Submissions

[174] The Crown submits that the evidence supports a finding that Mr. R. is a dangerous offender pursuant to s. 753 (1) (a)(i) and s. 753 (1)(b) of the Criminal Code.

[175] The Crown submits that Mr. R.’s failure to restrain his behaviour, under s. 753 (1) (a)(i), and his failure to control his sexual impulses, under s. 753(1) (b), are intractable.

[176] The Crown submits that the court has to look at the totality of all the evidence, including, but not limited, to the risk assessment by Dr. Pearce.

[177] The Crown submits that the recommendations in the Gladue Report, including the holistic approach, the teachings and the cultural practices, are programs that Mr. R. has already had the benefit of during his time in the penitentiary. The Crown submits that these programs are mechanisms to manage the risk at the sentencing stage but in the particular case of Mr. R., they will not reduce the assessment of his risk at the designation stage. The Crown submits that Mr. R. is unable to surmount his conduct and that these programs will not be of assistance in reducing that risk.

[178] The Crown submits that, at the designation stage, the court must look at Mr. R.’s overall risk as it is known today, that is, what is the risk determined as of today if he was sent to treatment, whether in an institution or outside an institution? Would that reduce the risk?

[179] The Crown states that Mr. R. has received treatment at Weendahmagen for substance abuse and treatment at Clearwater for sexual offending. He has attended Ochichakkosipi Healing Lodge. However, he continued his substance abuse and sexual offending after his release from custody.

[180] The Crown submits that Mr. R.’s pattern of offending conduct is inextricably linked to his deceitfulness, his involvement in the drug subculture and his psychological attributes of anti-social behaviour, including failure to conform and follow conditions, impulsivity, high risk lifestyle, deceitfulness, manipulation, denial of misconduct, lack of remorse and empathy, and lack of insight.

[181] The Crown submits that Mr. R.’s treatment prospects are not so compelling as to detract from the high likelihood of recidivism. The Crown submits that the fact that Mr. R. is willing to engage in treatment will not stop his pattern of repetitive offending behaviour.

[182] The Crown submits that the evidence of Dr. Pearce is that treatment will have little impact. The Crown submits that Dr. Pearce’s optimism for a reduction of risk is based more on age and intensive risk management under a supervision order. The Crown submits that this goes to management of the risk at the sentencing stage, not to the designation stage.

[183] The Crown submits that when one looks at the risk overall, based on what is known today, there is a pattern of repetitive behaviour, involving sexual assaults on vulnerable females much younger than Mr. R.

[184] The Crown submits that the Victim Impact Statement filed on sentencing after the sexual assault conviction of 2002 on L.W., and the Victim Impact Statements filed at the sentencing for the predicate offences, together with the evidence of Dr. Pearce, show the psychological damage, injury and pain that Mr. R. has caused to the victims of his sexual assaults, which would likely be caused to other persons through the failure of Mr. R., in the future, to restrain his behaviour or control his sexual impulses.

[185] The Crown submits that Dr. Pearce’s opinion that age will reduce the risk of future sexual assaults by Mr. R. is not borne out by the evidence that Mr. R. continued to commit sexual assaults as he aged into his 50’s.

[186] The Crown submits that Dr. Pearce assessed Mr. R., as of today, as a moderate to high risk, reducing to a moderate risk over time. The Crown submits that a moderate risk is still a substantial risk, and a risk that will never change. The Crown acknowledges that the risk can be managed because of the conditions that can be put in place in the community on release from custody, but the Crown submits, that is relevant to the sentencing stage, not the designation stage.

[187] The Crown submits that if the court finds that Mr. R. is a substantial risk to reoffend, s. 753(1) mandates that the court must designate him as a dangerous offender.

b) Defence Submissions

[188] The defence acknowledges that the predicate offences are serious personal injury offences. The defence also advises that it is not focusing on whether the predicate offences are part of a pattern of repetitive offending behaviour.

[189] Rather, the focus of the defence is that the Crown has not established beyond a reasonable doubt a high likelihood of harmful recidivism and intractable offending conduct.

[190] The defence submits that its theory is based on two aspects:

1. Dr. Pearce is in the best position to determine how Mr. R. can overcome his behaviours; and
2. Neither the defence nor Dr. Pearce are recommending that Mr. R. be released imminently, but that he be released only after a sentence of a further 33 months imprisonment.

[191] The defence submits that Mr. R.’s behaviour is not intractable and that Dr. Pearce confirms that Mr. R.’s behaviour can be ameliorated and his risk reduced.

[192] The defence submits that a prospective assessment of risk requires the court to look forward to determine what elements can be put in place to protect society, to reduce the risk.

[193] The defence acknowledges that if Mr. R. was released today, there would be a high likelihood of recidivism. However, the court must consider that at the earliest, Mr. R. would be released on parole at 22 months, that is after serving 2/3 of the 33 months of further incarceration to which the Crown and defence have agreed.

[194] The defence submits that at the designation stage the court should take into account that during the remaining of Mr. R.’s term of imprisonment, he will be involved in Correction Service Canada’s recently implemented Integrated Correctional Program Model (“ICPM”) and that after his release Mr. R. will be assertively managed.

[195] The defence also points to the fact that Mr. R. is now 60 years of age. The defence submits that the court can consider treatment, assertive management in the community and Mr. R.’s age in coming to a determination of whether he meets that criteria of a dangerous offender. The defence submits that the court should put great weight on Dr. Pearce’s opinion that Mr. R.’s risk can be managed and that the court should not focus on the risks that Mr. R. would present if he was to be released today.

[196] The defence submits that Mr. R. has not given up on himself. The defence points to five certificates which Mr. R. earned in November 2018 while in pre-sentence custody in Toronto, shortly after his meeting in Toronto with Dr. Pearce. The certificates were for successful completion of one-hour educational sessions in each of anger management, substance abuse, supportive relationships, setting up a budget and maintaining employment. There is no programming available at the Thunder Bay District Jail where Mr. R. has spent most of his pre-sentence custody.

[197] The defence emphasizes the importance of looking at Mr. R.’s background and his future through the lens of R. v. Gladue, [1999] 1 S.C.R. 688. The defence submits that s. 718.2 (e) of the Criminal Code and Gladue require the court to consider the systemic and background factors affecting Mr. R., set out in the Gladue Report prepared for this sentencing, and the types of sanctions which may be appropriate in the circumstances for Mr. R. because of his Indigenous heritage.

[198] The defence submits that the following factors should figure prominently in the court’s discussion:

1. Mr. R.’s mother and other family members attended residential school;
2. Mr. R.’s childhood was fraught with violence within his home and within his home community of G[…] First Nation;
3. Mr. R., himself, was the victim of sexual assault in his adolescent years;
4. Mr. R. had to leave G[…] First Nation for school in Thunder Bay, a large city for someone from a small First Nation which only 30 years ago acquired road access.
5. Substance abuse has had a significant impact on G[…] First Nation.

[199] The defence points to Mr. R.’s stated desire to live more of the traditional life of an Indigenous person and the fact that he has taken advantage of the cultural opportunities that have been offered to him. The defence submits that Mr. R. is willing to take treatment for his behavioural issues and for his substance abuse.

[200] The defence notes that Dr. Pearce was understanding of the difficulties that may explain Mr. R.’s reluctance to open up about his offences. The defence submits that Mr. R. is not without insight and remorse, although the defence acknowledges that Mr. R. has been inconsistent in that regard. Mr. R. took time to admit his offences, but did eventually admit significant portions of those offences and the impact on others.

Discussion

[201] The Crown relies on s. 753 (1) (a)(i) and s. 753 (1)(b) of the Criminal Code for a finding that Mr. R. is a dangerous offender.

[202] Those sections provide:

Application for finding that an offender is a dangerous offender

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

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour.

(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.

[203] The analysis that the court is required to undertake is comprehensively set out by the Supreme Court of Canada in R. v. Boutilier, 2017 SCC 64. I refer, in particular, to the following paragraphs:

[26] 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 (p. 338). 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-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. 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. [Emphasis added; p. 338.]

[27] 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.

[36] The jurisprudence of this Court subsequent to Lyons has consistently considered a prospective assessment of risk to be a component of dangerous offender applications. In R. v. Currie, [1997] 2 S.C.R. 260, 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”: para. 25. [1] In Sipos, at para. 20, which concerned s. 753(1)(b), this Court explained that designation requires evidence on both the retrospective and the prospective elements.

[43] As the assessment of prospective risk described above is concerned with whether an offender will continue to be “a real and present danger”, being unable to surmount his or her violent conduct, the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects.

[45] The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel. However, even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.

[46] In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. 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. Had the prospective aspects of the dangerousness criteria been removed by the 2008 amendments, the constitutionality of the provision might have required a deeper analysis. But that is not the case. The sentencing judge erred in concluding otherwise. Accordingly, this Court need not revisit its decision in Lyons as to the constitutionality of s. 753(1).

[204] In my view, only the third and fourth of the four criteria outlined in Boutilier, referencing Lyons, are in serious issue in this case.

[205] The sexual assaults which form the predicate offences are “serious personal injury offences” within the definition of s.752, as incorporated by s. 753(1)(a) and (b).

[206] I am also satisfied beyond a reasonable doubt that the predicate offences form part of a pattern of repetitive behaviour by Mr. R., showing a failure to restrain his behaviour, within the meaning of s. 753(1)(a), and a failure to control his sexual impulses within the meaning of s. 753(1)(b).

[207] The two sexual assaults which are the predicate offences are the fourth and fifth sexual assaults of which Mr. R. has been convicted. I have found beyond a reasonable doubt that he also sexually assaulted K.O. in an incident for which he was not charged or convicted.

[208] All six sexual assaults were against young women, all of whom were younger than Mr. R. In five of the sexual assaults the victims were much younger than Mr. R. The conduct of Mr. R. involving C.T., although not establishing a sexual assault, can reasonably be seen as inappropriate conduct of a sexual nature directed at a much younger female and evidence of bad character.

[209] The victims of Mr. R.’s sexual assaults, other than A.G. who was the victim in his second sexual assault conviction, were family members: S., his wife; L.W., the mother of two of his children; Ms. W., his daughter; K.O., the sister of L.W. and the aunt of Ms. W.

[210] Substance abuse was a factor in all the sexual assaults – substance abuse on the part of Mr. R., as the aggressor, and substance abuse on the part of the victims that rendered them more vulnerable.

[211] The Victim Impact Statements speak forcefully to the severe psychological damage, injury, pain and other evil suffered by the victims. Mr. R. has displayed indifference to those reasonably foreseeable consequences of his actions.

[212] The number of sexual assaults and the elements of similarity surrounding the sexual assaults establish the requisite pattern of offending behaviour. Mr. R. used sexual assault to achieve his sexual desires with an inability to control or restrain his impulses.

[213] The question then to be answered is whether the third and fourth criteria set out in Boutilier, have been satisfied.

[214] The third and fourth criteria concern the likelihood and intractability of violent or sexual conduct causing future damage.

[215] In Boutilier, it is stated repeatedly, at paras. 26, 27, 45 and 46, that the Crown must establish a “high likelihood” of harmful recidivism. Boutilier also endorses, with emphasis, at para. 26, the conclusion in Lyon that the Crown must establish a pattern of conduct that is “very likely to continue.” The leading text on dangerous offenders, Neuberger, Assessing Dangerousness: A Guide to the Dangerous Offender Application Process (Toronto: Thomson Reuters, 2011, loose-leaf updated 2019) references para. 27 of Boutilier and the necessity of establishing a “high likelihood” of harmful recidivism.

[216] The third and fourth criteria are future oriented and require the court to conduct a prospective assessment of future risk. The court must have regard to the totality of the evidence, including consideration of an offender’s treatment prospects.

[217] The Crown does not have to prove beyond a reasonable doubt that Mr. R. will commit an offence. That is an impossibility.

[218] The Crown must demonstrate beyond a reasonable doubt based on evidence of a pattern of past conduct and a prospective assessment of future risk that Mr. R. poses a high likelihood of repeating his offending behaviour and that he is unable to surmount that conduct.

[219] The assessment report prepared by Dr. Pearce is mandated by s. 753.1 and s. 753 (i).

[220] The Court of course, cannot assume that psychiatrists can accurately predict the future. Indeed, Dr. Pearce, himself, testified that the assessment tests that he used in his assessment of the future risk posed by Mr. R. did not constitute a crystal ball that allowed one to see into the future. However, he said that the assessment tests were moderately successful at predicting future risk.

[221] In my view, although the psychiatric evidence concludes that Mr. R. unquestionably poses a risk of reoffending, it does not rise to the level of establishing a “high likelihood” of harmful recidivism and intractability of a violent pattern of conduct or sexual reoffending.

[222] In the opinion of Dr. Pearce, based on the results of the assessment tests and his expertise as a psychiatric clinician, if Mr. R. was to be released from custody today, he would be a moderate to high risk to reoffend. However, Mr. R. is not going to be released from custody today. He will not be released from custody for almost another two years, at the earliest, because of the sentence of a further 33 months imprisonment that will be imposed today. He will be eligible for statutory release in 22 months.

[223] When Mr. R. is released from custody, he will be almost 62 years of age.

[224] During his time in custody in the penitentiary, Mr. R. will be assessed and placed in programs within the Integrated Correctional Program Model (“ICPM”). This is a program that only came into effect in 2016/2017, after Mr. R. completed his last penitentiary term.

[225] Ms. Lynette Banks, who is the Parole Supervisor for Northwestern Ontario for Correctional Service Canada, testified about the ICPM. She said that it was a complete overhaul of the previous programming. She said that Correctional Service Canada concluded that the old system was not working because offenders had to take too many programs. Under the ICPM, all the needs of an offender are located in one program, rather than trying to slot them in specific programs. Ms. Bank testified that the flaw in the old system was that offenders could not take relevant programming because of waitlists. She testified that there has been a significant improvement in the motivation of offenders to successfully complete the programming under the ICPM because they do not feel daunted by over programming. Otherwise, offenders can be lost in the process. Ms. Banks believes that the new system is working well because it is more streamlined and more focused on the offender’s needs. She said that the programming is multi-targeted, addressing all the offender’s needs such as substance abuse, sexually offending and anger management.

[226] If Mr. R. was assessed as a moderate risk, he would go into the moderate stream of 54 sessions over 11 weeks. If Mr. R. was assessed as a high-risk offender, he would have 104 sessions over 6 months. The main objectives of the program are to teach skills through social learning and cognitive behavioural strategies that help reduce risky and harmful behaviour and help in changing anti-social attitudes, beliefs and associates. The sexual offender stream in the ICPM deals with seven components over 104 sessions - sexual deviancy, sexual pre-occupation, anti-social traits, psychopathy, self-regulation, employability skills and hostility and aggression. There is an Indigenous stream of multi-targeted programs involving the Medicine Wheel, elders and sweat lodges. Indigenous offenders can do their cultural and spiritual work while in the sex offender stream. The program has been developed to teach risk management in a culturally appropriate context. Offenders are in class in the ICPM for 2-2 ½ hours per session. In the high intensity program, ICPM involves one on one work, homework and reflection. Following completion of the main care program, there is a maintenance program that runs in a 12-week cycle. The offender can come into the program at any point in the cycle. Ms. Banks said that it takes a lot of work to bring a sex offender successfully through the program. She said that the records indicate that Mr. R. does not have much trouble within the institution and generally, with some exceptions such as dealing in drugs, did well on supervision.

[227] Ms. Banks said that the substance abuse programming that Mr. R. will take will be different then what he previously took. The sex offender programming he will receive will be very much specific to him. He will not have to change institutions for the program as he did in the past. Clearwater does not do sex offender programs now.

[228] Dr. Pearce testified that he believed that the ICPM would be helpful for Mr. R.

[229] In the opinion of Dr. Pearce, if Mr. R. is released from custody after age 60, he will be in a moderate risk category and considered to be an average risk to reoffend. Dr. Pearce also said that he was optimistic that Mr. R.’s risk of reoffending will be lower in the future because of Mr. R.’s advancing age and the proposed intensive supervision and graduated community release. On release from custody, Dr. Pearce recommended that Mr. R. not be released into the community at large but rather that he reside at a Community Correctional Centre for at least a year and then, depending on how he does, move to a less structured, less supervised residence. Only after that would he be permitted to reside in the general community.

[230] On a prospective assessment of future risk, I am unable to find that a psychiatric opinion of moderate or average risk equates to a “high likelihood” of risk.

[231] The Crown submits that because Mr. R. was approximately 50 and 54 years of age, respectively, when he committed the predicate offences, Dr. Pearce’s opinion about a reduction in risk after 60 is not borne out by the evidence.

[232] However, when Dr. Pearce gave his opinion about the effect of age on the risk posed by Mr. R., he was fully aware of Mr. R.’s age at the time he committed the predicate offences. Dr. Pearce’s opinion on the relationship between age and risk was not subsequently challenged when he testified.

[233] The risk assessment tests that Dr. Pearce used to base his opinions are actuarial programs, based on statistical studies. Statistically, the Static 99-R score for Mr. R. drops from a + 5 to a + 3 at age 60. Dr. Pearce describes this as a “significant” drop. He also said that the offender’s age on release from custody is a “significant’ part of the Static 99-R score.

[234] In my view, it would be problematic, without having supporting expert evidence, to accept the submission of the Crown that I should reject the conclusion of the assessment tests that show a drop of risk in statistical scores after age 60, and to reject Dr. Pearce’s opinion in that regard, but on the other hand to accept the scoring that indicates that Mr. R. is a moderate to high risk to reoffend on immediate release. Without expert evidence, it would be inappropriate for the court to pick and choose only those parts of the assessment that support a particular outcome and reject those that do not.

[235] The Supreme Court in Boutilier, at para. 46, states that a prospective assessment of dangerousness ensures that only offenders who pose “a tremendous future risk” are designated as dangerous.

[236] Dr. Pearce’s clinical evaluations did not identify that Mr. R. suffered from any mental illness. Dr. Pearce did conclude that Mr. R. did have a personality disorder with anti-social traits. A polysubstance disorder is also present. This is relevant in understanding Mr. R.’s repetitive behaviours. Dr. Pearce concluded that Mr. R. does not suffer from psychopathy. He said that the absence of psychopathy is generally a positive prognostic indicator, although Mr. R’s score of 25 on the PCL-R suggests that treatment and risk management in the community could be challenging. However, I do not understand Dr. Pearce to be saying that treatment, although challenging, is hopeless.

[237] Dr. Pearce testified that he believed that treatment could help Mr. R.’s personality problems, but that they were ingrained traits and so the best way to treat or help his personality problems is by assertive risk management. Dr. Pearce said that Mr. R. has benefited from treatment in the past, but that he seems to need a very long-term treatment program given the problems he has had for 40 years. Dr. Pearce said that generally the treatment reports on Mr. R. are positive and that he has been successful in completing parole, but that ­­­obviously there has been sexual reoffences since treatment. He added that it is possible that therapy would reduce Mr. R.’s risk, but that it is more likely that ageing following by assertive risk management would be the most helpful way to reduce his risk to reoffending.

[238] Dr. Pearce opined that because Mr. R. has not had residential treatment for substance abuse since the 1990’s, he could benefit from a culturally based residential facility. Dr. Pearce believed that alcohol probably contributes to some extent to Mr. R.’s sexual offending. There could be a relationship between his substance abuse and having been sexually abused. Dr. Pearce testified that residential treatment for substance abuse, plus antabuse, combined with close external monitoring would help make the prospects of treatability good. Dr. Pearce said that Mr. R. appears genuinely interested in making gains and wanting to take treatment. Mr. R. told Dr. Pearce that he was amenable to Dr. Pearce’s suggestions as to treatment, such as methadone, and expressed a willingness to take antabuse.

[239] I am not satisfied beyond a reasonable doubt that Mr. R. will be unable to surmount his offending behaviour. I take into account Dr. Pearce’s evidence on treatability which, although by no means is certain of positive results, holds out some basis for optimism, albeit in the context of ageing, intensive, assertive supervision and a graduated release program two years from now.

[240] I also take into consideration that Mr. R. completed the four-month Sex Offender Treatment Program at the Clearwater Unit in 2004, following which he acknowledged his sexual assaults for which he had previously refused to take responsibility, acknowledged the harm he had done and expressed remorse. He also completed the four-month Elder Counselling Program. Dr. Pearce testified that Mr. R. was definitely capable of displaying insight.

[241] Of course, I am aware that the fact that Mr. R. sexually reoffended after completing the programs, throws into question just how effective the programs were and the sincerity of his expressions of insight and remorse, as does the fact that six years later he was asked to leave the Ochichakkosipi Healing Lodge and displayed little regret for the harm caused to his family by his drug convictions.

[242] However, what can be drawn from the programs that Mr. R. took in the penitentiary is that Mr. R. has in the past displayed a willingness to attend treatment and to complete treatment.

[243] I agree with the submission of defence counsel that I must take into consideration the presence of the systemic and background factors affecting Indigenous people in Canadian society and, in particular, those systemic and background factors as they relate to Mr. R. As the Supreme Court has stated in R. v. Ipeelee, 2012 SCC 13 at para. 60:

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2 (e) of the Criminal Code.

[244] Mr. R. has experienced the unique background and systemic factors which have played a part in bringing him as an Indigenous person, before the courts. There is the legacy of his mother’s residential schooling. There was violence and substance abuse in his home when he was young and in his formative years. He was displaced from his First Nation to a boarding school in Thunder Bay, where soon thereafter he was sexually abused by a person in authority. This was followed by his own descent into substance abuse and, subsequently, violence. G[…] First Nation, itself, has suffered from the effects of colonialism and residential schools and has experienced, as a community, its own history of violence and substance abuse.

[245] The Gladue report notes that as Mr. R. has grown older, gained some life experience and attended portions of addiction treatment programs, he has come to recognize that some of his early traumas have affected him through his whole life. This is an indication of some insight, as observed by the Gladue writer, that bears on the issue of treatability in the context of the Aboriginal targeted programs of the ICPM.

[246] Mr. R. has expressed an interest in living a traditional life. He has shown interest in the teaching of Anishnawbe culture and spirituality. Dr. Pearce testified that Mr. R. genuinely wants to live a more traditional life. Recognizing that Mr. R. has previously been involved in Indigenous orientated programming but has subsequently reoffended, Dr. Pearce has nevertheless recommended culturally appropriate programs as enhancing the possibility of successful treatment. The Gladue report recommends a number of Indigenous programs of healing and cultural teachings which Mr. R. has indicated to the Gladue writer that he would be agreeable taking on his release. The Gladue report indicates that Gladue after care workers will assist Mr. R. to make arrangements to work on the recommendations in the report. This, too, bears on the question of treatability.

Conclusion

[247] I have concluded that although Mr. R. does present a risk to reoffend and that it will be a challenge for him to overcome the pattern of his behaviour, I am not satisfied beyond a reasonable doubt that the evidence establishes “a high likelihood of recidivism” and that his conduct is “intractable”, as Boutilier, requires.

[248] I therefore do not find Mr. R. to be a dangerous offender. However, I treat this application as an application to find Mr. R. to be a long-term offender pursuant to s. 753(5) and s. 753.1 of the Criminal Code.

[249] Section 753.1 provides that following the filing of an assessment report under s. 752.2(3), the court may find an offender to be a long-term offender if:

a) it would be appropriate to impose a sentence of two years or more for the predicate offences; 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.

[250] Section 753.1(2) provides that the court shall be satisfied that there is a substantial risk that the offender will reoffend if,

a) among other enumerated offences, he has been convicted of sexual assault; and b) has either shown a pattern of repetitive behaviour, of which the predicate offences form a part, that shows a likelihood of death, injury or severe psychological damage to other persons, or by conduct in any sexual matter, including the predicate offences, has shown a likelihood of causing injury, pain or other evil to other persons through similar offences.

[251] I am satisfied, based on the evidence set out in these Reasons, that Mr. R. meets the criteria to be designated a long-term offender. I therefore find him to be a long-term offender.

Sentence

[252] Based on the joint submission of the Crown and the defence, on count number one, sexual assault contrary to s. 271 of the Criminal Code, and concurrently on count number three, sexual assault contrary to s. 271 of the Criminal Code, I sentence Mr. R. to a term of imprisonment of 33 months, commencing today, taking into consideration pre-sentence custody of 42 months, credited at 1.5 to 1 for credit of 63 months, for an effective sentence of 8 years imprisonment.

[253] I order that Mr. R. shall be subject to long-term supervision for a period of 10 years.

[254] An order is made under s.109 of the Criminal Code prohibiting Mr. R. from possessing any firearms, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive device for life.

[255] An order is made under s. 487.051 of the Criminal Code authorizing the taking of samples for DNA analysis.

[256] An order is made under s. 490.012(1) and s.490.013 (a)(c) of the Criminal Code requiring Mr. R. to comply with the Sex Offender Information Registry Act, which applies for life.

[257] An order is made pursuant to s. 161(1) (a.1) of the Criminal Code that Mr. R. not be within two kilometres of where Ms. W. resides.

[258] An order is made pursuant to s. 161(1) (b) of the Criminal Code that Mr. R. should not seek or obtain any employment or become a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16.

[259] I attach, as Schedule A to these Reasons, the recommendations for a treatment plan for Mr. R., as contained in the report of Dr. Pearce, dated January 27, 2019, marked as exhibit 9 on the hearing of this application.

[260] I attach, as Schedule B to these Reasons, a document entitled “Recommendations for Long-term Supervision Order”, submitted jointly by the Crown and the defence, marked as exhibit 14 on the hearing of this application.

[261] I endorse the recommendations contained in both Schedules.

“original signed by”

The Honourable Justice D. C. Shaw

Released: February 19, 2020

Schedule A

1. Mr. R. should access and complete a wide variety of programs during a period of incarceration, including substance abuse treatment programming, sexual offender treatment programming and programs to target antisocial values and attitudes. Longitudinally-based “booster” programming in most domains should continue once he returns to the community to bolster the effects of institutional programs. Wherever possible, programming should be culturally-based. When Mr. R. has access to the community, at least weekly urine screens should be performed to ensure that he remains abstinent from substances of abuse. He should be prescribed disulfiram (Antabuse, an anti-alcohol medication that, if taken regularly, prevents the body from metabolizing alcohol while compliant with this medication, a distressing and painful physiological reaction would result) under supervision, to help ensure he does not drink. Use of any non-prescribed substance should result in his immediate return to custody.
2. It may benefit Mr. R. to be placed at a CCC, given the level of supervision and support available there. If living outside of a CSC facility, parole officers should make regular visits to his residence to ensure that he is abiding by conditions.
3. Mr. R. should be prohibited from having contact with any criminally-oriented peers outside of correctional facilities. He should not attend at any venue where the primary source of revenue is through the sale of alcoholic beverages.
4. Mr. R. should not be in possession of a weapon.
5. Mr. R. should ultimately seek out gainful employment; this would assist him with his sense of self and may help reduce the risk of violent recidivism.
6. Mr. R. shouldn’t have any unsupervised contact with children under the age of 16.
7. It may be helpful for Mr. R. to disclose his relationships to his case management team.
8. Extreme caution should be exercised when prescribing medication to Mr. R.; he has abused numerous medications and has been repeatedly caught hoarding medications. Dr. Pearce does not support him being prescribed opioids, benzodiazepines or stimulants and Dr. Pearce also suggests avoiding certain antidepressants, such as bupropion (which he was on at the time he met with Dr. Pearce).

Schedule B

Recommendation for Long-term supervision order

1. When released into the community, Mr. R.’s release should be gradual and only earned with demonstrated compliance with supervision. A prolonged stay at a community correctional Centre (CCC) may be necessary.
2. Mr. R. should participate in longitudinally-based (booster) programming for sexual offenders and substance abuse programming as recommended. He should complete programs targeting antisocial values and attitudes including domestic violence prevention programs.
3. The treating psychiatrist should coordinate the entire programme and treatment for Mr. R. in the community with the supervising parole officer.
4. Mr. R. should report all new relationships to the Supervisor including any changes in his relationships (friends, intimate or otherwise) to his parole officer and to permit the parole officer to have contact with family members, friends and intimate partners.
5. Not to be in the company of any female under the age of 18;
6. Not to volunteer or maintain employment where children under the age of 18 are expected to be present;
7. To abstain from the purchase, possession or consumption of alcohol, marijuana or any illicit substances.
8. Not to enter any establishment where the primary purpose is the sale of alcohol.
9. Not to have any communication either directly or indirectly with B.W., C.T., K.O., M. B.