Court File and Parties

COURT FILE NO.: 14-5008 DATE: 20200529 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JACQUES ROUSCHOP Accused

Counsel: Meaghan Cunningham, for the Crown Paul Lewandowski, for the Accused Howard Krongold, as amicus

HEARD: March 13, 2020

decision on dangerous offender application

R. smith j.

Overview

1The Crown has applied to have Jacques Rouschop (“Mr. Rouschop” or “the offender”), declared a dangerous offender and to impose an indeterminate sentence of imprisonment with some ancillary orders. In the alternative the Crown seeks a sentence of 30 years in jail less credit for presentence custody, followed by a 10-year Long Term Supervision Order (“LTSO”).

2Mr. Rouschop was convicted of two counts choking with intent to overcome resistance (s. 246 of the Criminal Code) and two counts of aggravated sexual assault in 2013 (s. 273 of the Criminal Code). These are the predicate offences for this hearing. He was previously convicted of sexual assault with a weapon in 1991, and of two counts of sexual interference in 2005 and 2007. In addition, he has a very lengthy criminal record of over forty convictions, the majority of which are for theft, assaults, fraud and breaches of probation or parole. He has been in jail, on probation, on parole, or released on conditions for most of his adult life.

3Mr. Rouschop agreed that he met the requirements to be declared a dangerous offender but argued that he should only be sentenced to an additional two years in prison, after credit for time served on the basis of 1.5 to 1 (a credit of almost ten years) and be subject to a LTSO for a further ten years, which he submits would adequately protect the public.

Admission of Guilt

4During his testimony in February of 2020, Mr. Rouschop admitted that he was guilty of the predicate offences; namely, that he choked D.A. unconscious and then sexually assaulted her, and that he choked S.D. but testified that he blacked out and does not know if he also sexually assaulted her as she testified and as the jury so found. He also admitted that he was guilty of the sexual assault conviction in 1991 and that he was guilty of the two convictions for sexual interference which occurred in 2005 and 2007. He had denied committing the predicate offences on many occasions, including while testifying at this trial, where he alleged that the complainants had made false allegations against him because they were set up by the Ottawa Police. He had also always previously denied the sexual interference charges until his recent testimony on this sentencing hearing. Mr. Rouschop had occasionally admitted that he was guilty of the 1991 sexual assault charge but also often denied his guilt.

5Mr. Rouschop testified that he decided to admit his guilt for his previous convictions for sexually related offences, or to “come clean” approximately one month before testifying in February of this year. He testified that he decided to make these admissions because he was told that he had to be completely truthful about his past sexual offences in order to be accepted to a support group called Circles of Support and Responsibility (“COSA”). He also testified that he decided to admit the truth because he believed that this was the first step to allow him to get the required treatment. In addition, he voluntarily started to take Lupron, a drug that reduces his sex drive, on or about January of 2020.

Issue #1 – Is Mr. Jacques Rouschop a dangerous offender?

6The Crown submits that Mr. Rouschop meets the criteria to be declared a dangerous offender under both sections 753(1)(a) and (b) of the Criminal Code. The offender admits that he meets the criteria for being declared a dangerous offender under s. 753(1)(a) and as a result the Crown made limited submissions on whether he could also be found to be a dangerous offender under s. 753(1)(b) of the Criminal Code.

7Section 753(1) of the Criminal Code states as follows:

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.

8The accused offender was convicted of two counts of choking with intent to overcome resistance contrary to s. 246 of the Criminal Code and of two counts of aggravated sexual assault contrary to s. 273 of the Criminal Code. The offences carry a maximum sentence of life imprisonment and meet the definition of a “serious personal injury offence” as defined in s. 752 of the Criminal Code.

9The second criterion under s. 753(1)(a) is that Mr. Rouschop constitutes a threat to the life, safety or physical or mental well-being of other persons. Mr. Rouschop meets the criteria under both 753(1)(a)(i) and (ii) as he has conceded that he has established:

i. A pattern of repetitive behaviour that shows a likelihood of causing death or injury to other persons or inflicting severe psychological damage to other persons through a failure in the future to restrain his behaviour; and

ii. A pattern of persistent aggressive behaviour showing a substantial degree of indifference to the reasonably foreseeable future consequences to other persons of his behaviour.

i. Pattern of Repetitive Behaviour (s. 753(1)(a)(i))

10The Crown submitted that Mr. Rouschop has exhibited four patterns of repetitive violent behaviour which have a likelihood of causing injury or severe psychological harm to others in the future. He has choked others during assaults, he has responded impulsively and violently to perceived slights, he has used violence or threats of violence to impose his dominance over others, and he has satisfied his own sexual desires in a manner that violated others’ rights and disregarded others’ feelings. The offender did not contest the Crown’s summary of evidence outlining his pattern of repetitive behaviour set out in her written submissions. I find that the evidence tendered before me supports the Crown’s summary of his four patterns of repetitive violent behaviour as set out in her written submissions, which I accept.

11The four (4) distinct patterns of Mr. Rouschop’s repetitive behaviour which meet this criterion were established by the following evidence presented at this hearing:

a) Mr. Rouschop has choked or compressed someone’s neck during an assault on the following occasions:

i. July 24th, 1985 – CAS letter stated that J.R.’s mom reported that he attempted to strangle 3 children;

ii. 18 July 1994 – he grabbed B.B. by the neck;

iii. 15 January 2008 – he put E.M. in a headlock;

iv. Summer 2013 – he choked S.D.;

v. 22 August 2013 – he grabbed S.D. by the neck;

vi. 2 Sept 2013 – he choked D.A.;

vii. July 2019 – his assault of M.V. involved choking;

viii. 21 September 2019 – his assault of K.B. involved choking;

ix. In many other incidents of institutional misconduct, Mr. Rouschop can be seen on video grabbing other inmates by the neck, including:

1. 6 Nov 2016 – grabbed inmate by the neck who interrupted him on phone;

2. 30 Nov 2016 – grabbed inmate by the neck who was using phone;

3. 20 August 2017 – pinned an inmate who was using the phone against wall and pushed against his neck;

4. 1 April 2019 – held an inmate by the throat while hitting him;

5. 24 September 2019 – grabbed an inmate by the throat and drove him backwards during second part of the assault.

b) Mr. Rouschop responded impulsively in a violent or threatening manner to a perceived wrong or slight. Evidence supporting this finding includes the following incidents:

i. Many incidents are described in the CAS and ROH records relating to his behaviour as a youth;

ii. Choked S.D. because she lied to him in order to avoid having vaginal intercourse (Summer 2013);

iii. Assaulted S.D. because she stole $100 from him while engaging in a commercial sex transaction (22 August 2013);

iv. Choked D.A. because she refused to take off her pants, and told her, “Who’s in charge?” (2 September 2013);

v. Committed an assault causing bodily harm of inmate K.B., who insulted Mr. Rouschop’s mother while they were sitting at a table (28 January 2015);

vi. Received a misconduct for kicking a hatch down onto another inmate’s fingers. Mr. Rouschop said they were calling him bad names (1 November 2018);

vii. Received a misconduct where Mr. Rouschop punched another inmate, and later explained that he lost his cool over a comment made by the other inmate (17 January 2019);

viii. Received a misconduct when Mr. Rouschop repeatedly punched an inmate and injured his eye after inmate threw some cards at him (1 April 2019);

c) Mr. Rouschop used violence or threatened violence to enforce his dominance (by punishing disobedience with physical violence) on the following occasions:

i. July 18, 1994 incident involving B.B., where he threatened and assaulted her in order to send a message to her son not to speak to the police about him;

ii. March 1, 2000 incident where he threatened K.M., warning her not to get involved in his business with his girlfriend;

iii. June 21, 2000 incident where he assaulted and threatened L.D. after accusing her of cheating on him;

iv. November 20, 2006 incident where he threatened T.A. when she said she was going to disconnect a phone line that he had been using but she was paying for;

v. January 15, 2008 incident where he threatened and assaulted E.M. because E.M. had been expressing concern about Mr. Rouschop spending time with his ex-girlfriend, who had young children;

vi. Many of the in-custody misconducts relate to other inmates’ use of the telephone, something Mr. Rouschop exercised control over. In many instances the video showed that Mr. Rouschop approached an inmate who was on the telephone and assaulted him. The clearest example of this is from 2018-07-16 (Misconduct Index Tab 10).

vii. March 7, 2015 misconduct where Mr. Rouschop approached an inmate sitting on his bed and assaulted him, over an ongoing dispute about who slept where in the dorm;

viii. July 2019 – assault on M.V. – prompted by a disagreement about Mr. Rouschop’s phone lines (evidence of K.B. and J.A.) or K.B.’s refusal to take a shower (evidence of Mr. Rouschop). Either way, the assault was Mr. Rouschop’s message that his rules must be followed.

d) Mr. Rouschop satisfied his own desires (sexual or otherwise) and interests in a manner that violated the rights of others, with substantial disregard for the wishes/feelings of others in the following incidents:

i. Inappropriate touching of female staff at age 13;

ii. Sexual interference and sexual assault with threat to use weapon relating to E.E. (9 years old) – 7 September 1990;

iii. Confined (handcuffing to steering wheel) and attempted to sexually assault L.D. in vehicle – 18 July 1994;

iv. Sexual interference and assault of H.Z. (12 years old) – 2003-2004;

v. Sexual assault of S.G. (17 years old) – 25 October 2006;

vi. Sexual assault of S.D. (adult) – summer of 2013;

vii. Sexual assault of D.A. (adult) – 2 September 2013;

viii. Sexual assault of K.B. (in custody) – October 2019;

ix. Sexual assault of M.V. (in custody) – October 2019

(ii) Pattern of Persistent Aggressive Behaviour

12Mr. Rouschop has been convicted of assaulting ten individuals which resulted in criminal convictions. In October of 2019 during this dangerous offender hearing, two inmates at the Ottawa Carleton Detention Centre (“OCDC”) came forward and alleged that Mr. Rouschop had physically and sexually assaulted them. After holding a voir dire I found that the Crown had proven their allegations beyond a reasonable doubt based on their evidence, the confirmatory video evidence, and the independent evidence of J.A.

13The evidence of Mr. Rouschop’s assaults and the evidence outlined above under para. 11 (a), (b) (c) and (d) establish a persistent pattern of aggressive behaviour, show a substantial degree of indifference to the consequences to others which will likely continue in the foreseeable future.

Threat to the life, safety or physical or mental well-being of other persons

14Dr. Ramshaw, a forensic psychiatrist, conducted an assessment of Mr. Rouschop and testified that there was a high risk that he would reoffend in a general, violent and sexual manner. Violent or sexual reoffending would threaten the physical or mental well-being of other persons. Dr. Ramshaw’s expert opinion evidence in this regard was not contradicted.

15Dr. Ramshaw diagnosed Mr. Rouschop with having three significant psychiatric conditions; namely, he has an Antisocial Personality Disorder (“ASPD”), a Narcissistic Personality Disorder, and he meets the definition of a psychopath, having “severe psychopathy”. These mental conditions are all very difficult to treat.

16Dr. Milroy testified at the trial of the predicate offences and stated that compression of the neck is life-endangering and can be fatal. The violent nature of Mr. Rouschop’s physical assault patterns show a likelihood of causing death or injury to other people if he were to reoffend violently.

17The sexual offences committed by Mr. Rouschop have caused severe psychological harm to his victims (quite apart from any physical injury that resulted) as evidenced by the testimony of the complainant and the Victim Impact Statements filed. If Mr. Rouschop were to reoffend sexually, there is a strong likelihood that he would cause severe psychological damage to his victims.

18Mr. Rouschop concedes that the criteria under s. 753(1)(a) have been met on the basis of a pattern of repetitive behaviour that shows a likelihood of causing death or injury to other people or inflicting severe psychological damage on other people through a failure to restrain his behaviour.

19It is not necessary for me to address whether Mr. Rouschop meets the definition of a dangerous offender under s. 753(1)(b) of the Criminal Code because he has agreed that he meets the definition under s. 753(1)(a) of the Criminal Code.

Disposition of Issue #1

20Based on the above evidence and the fact that Mr. Rouschop agreed that he meets the definition of a Dangerous Offender under s. 753(1)(a), I find Jacques Rouschop to be a Dangerous Offender.

Issue #2 What Sentence should be imposed on Mr. Rouschop?

21Section 753(4) of the Criminal Code provides three options for sentencing once an offender is found to be a dangerous offender:

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 LTSO for a period that does not exceed 10 years; or

c) impose a sentence for the offence for which the offender has been convicted.

22The question is whether an indeterminate sentence should be imposed or whether, based on the evidence adduced at the hearing, there is a reasonable expectation that a lesser sentence of a period of at least two years in the penitentiary plus a ten-year LTSO would adequately protect the public.

23Section 753(4.1) of the Criminal Code states that an indeterminate sentence shall be imposed unless there is a reasonable expectation that a lesser measure under 4(b) or (c) will adequately protect the public against the commission of murder or a serious personal injury offence by the offender.

24Section 753(4.1) reads as follows:

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.

25In R. v. F.E.D., 2007 ONCA 246, 84 O.R. (3d) 721, at para. 50, the Court of Appeal stated that the Crown did not bear the onus to prove that there was no reasonable possibility (now changed under s. 753(4.1) since 2008 to a “reasonable expectation”) of eventual control of the risks the offender presents in the community. Neither the Crown nor the offender bears the onus of proof. “[R]ather, it is an issue for the sentencing judge concerning whether to exercise his or her discretion based on the whole of the evidence adduced.”

26In F.E.D., at paras. 44-45, the Court of Appeal held that if the sentencing judge was “uncertain whether the requirement is satisfied…the sentencing judge should refuse to exercise the discretion not to declare the offender dangerous based on the long-term offender provisions.”

27In R. v. Goforth, 2007 SKCA 144, 302 Sask. R. 265, at para. 54, the Saskatchewan Court of Appeal stated as follows:

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

28In R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 70, the Supreme Court set out the following framework under which to conduct the s. 753(4.1) analysis:

i. If the court is satisfied that a conventional sentence will adequately protect the public against the commission of murder or serious personal injury offence, then that sentence must be imposed.

ii. If the court is not satisfied that this is the case, then it must proceed to the second assessment and determine whether a conventional sentence of a minimum of two years’ imprisonment followed by a long-term supervision order for a period that does not exceed ten years will adequately address the public safety issue. If the answer is yes, then that sentence must be imposed.

iii. If the answer is no, then an indeterminate period of incarceration is to be imposed. Indeterminate detention in a penitentiary is the last option.

29In Boutilier, at para 71., the Supreme Court stated that:

Properly read and applied, s. 753(4.1) does not impose an onus, a rebuttable presumption, or a mandatory sanctioning. Nor does it prevent a sentencing judge from considering sentencing objectives and principles. Every sentence must be imposed after an individualized assessment of all the relevant factors and circumstances.

30In R. v. Osborne, 2014 MBCA 73, 314 C.C.C. (3d) 57, at paras. 73-74 the Manitoba Court of Appeal held that the language of “reasonable expectation” imposed a different and higher standard than a “reasonable possibility”. At para. 73 of Osborne, the court accepted that a reasonable possibility was a belief that something may happen, whereas a reasonable expectation consists of a belief that something will happen.

31The Saskatchewan Court of Appeal and the British Columbia Court of Appeal have reached similar conclusions in R. v. Bunn, 2014 SKCA 112, 446 Sask. R. 184; and R. v. S.(D.J.), 2015 BCCA 111, 370 B.C.A.C. 57, leave to appeal denied, [2015] S.C.C.A. No. 194, as did the Ontario decision in the case of R. v. Taylor, 2012 ONSC 1025, at para. 346, in which “reasonable expectation” was defined as “a confident belief for good and sufficient reason based upon the quality and cogency of the evidence” (emphasis in original).

32In R v. D.B., 2015 ONSC 5900, at para. 194, Hill J. summarized the test as follows:

At a minimum, the phrasing ‘reasonable expectation’ requires an evidence-based evaluation, based upon objectively valid and relevant criteria, with probabilistic assessment exceeding chance, speculation, hope or mere possibility that something will happen.

33In R. v. McCallum (2005), 201 C.C.C. (3d) 541 (Ont. C.A.) at para. 47, a decision made under the more lenient test of “reasonable possibility of eventual control”, the Court of Appeal stated that in order to avoid an indeterminate sentence, there had to be evidence of treatability that was more than an expression of hope and that indicated that the specific offender could be treated within a definite period of time.

34In R. v. Toutsaint, 2015 SKCA 117, 467 Sask. R. 248, at paras. 20-24, the Saskatchewan Court of Appeal held that the question before the court was not whether an indeterminate sentence of imprisonment was a fit sentence for the offender, but whether there was a reasonable expectation that a lesser measure will adequately protect the public.

Applying the Law to the Evidence

Issue #2(a) Does the evidence adduced at the hearing satisfy the court that there is a reasonable expectation that a lesser measure, other than an indeterminate sentence, will adequately protect the public?

35The following are mitigating factors:

i. Mr. Rouschop has not been previously sentenced to a penitentiary term. One of his sentences would have exceeded two years if the presentence custody was included;

ii. he admitted his guilt to the predicate offences and other sex related offences during his testimony. This factor, while potentially mitigating, was not a guilty plea before trial and therefore is of limited effect; and

iii. he has now admitted his guilt for all of his convictions for sexual offences, and while this is a positive step, he admitted that he was motivated in order to avoid an indeterminant sentence and also he admitted that he would not hesitate to lie to the court if he thought it would help his chances of avoiding an indeterminant sentence. As a result, his credibility is low and the sincerity of his recent admissions of responsibility and desire to obtain a treatment can only be assessed if the demonstrates a consistent effort at treatment over a sustained period of time.

36The following are aggravating factors:

i. Mr. Rouschop has a very lengthy criminal record with over 40 previous convictions for many different types of offences;

ii. he has served three previous convictions for sexual offences;

iii. the predicate offences are very serious as they involved choking the two victims to unconsciousness and then sexually assaulting them;

iv. he also assaulted and sexually touched two inmates during this sentencing hearing while he was in custody which is very aggravating; and

v. the uncontradicted psychiatric evidence is that Mr. Rouschop has a high risk of reoffending both violently and sexually.

37Dr. Ramshaw, the forensic psychiatrist, conducted an assessment of Mr. Rouschop and gave the following evidence at the hearing:

a) At present Mr. Rouschop has a high risk of reoffending, both violently and sexually. His risk instrument scores all show that he has a high risk of general, violent and sexual reoffending;

b) His present high risk of reoffending will not change unless Mr. Rouschop is successful in making some significant and substantial change to his attitudes, values, behavioural responses, personality characteristics, and lifestyle. For successful change to occur, Mr. Rouschop must demonstrate both a sincere and sustained effort, and the programming and treatment engaged in must be effective for him;

c) Dr. Ramshaw stated that she was hopeful that Mr. Rouschop’s risk may be reduced over time, however she could not say whether treatment would be successful in reducing the risk that he would reoffend, or how long treatment would take;

d) She diagnosed Mr. Rouschop with an Antisocial Personality Disorder “ASPD” and a Narcissistic Personality Disorder. The diagnosis of ASPD requires a person to meet three of the seven identified criteria. Mr. Rouschop meets all seven of the following criteria:

i. Failure to conform to social norms;

ii. Deceitfulness;

iii. Impulsivity;

iv. Irritability and aggressiveness;

v. Reckless disregard for the safety of others;

vi. Consistent irresponsibility;

vii. Lack of remorse.

e) Dr. Ramshaw stated that Mr. Rouschop’s antisocial behaviour appears to be driven by anger, impulsivity, sensation seeking, a disregard for others, a need for immediate gratification, and financial gain. His narcissistic traits include a grandiose sense of self-importance, a sense of entitlement, and being personally exploitative. These traits are evident when considering the offences on his criminal record, and for the two predicate offences against Ms. Arrowsmith and Desnoyers;

f) Dr. Ramshaw stated that personality disorders are intractable and “treatment tends to involve a protracted period of time and requires considerable motivation and commitment.” Mr. Rouschop testified that he has just recently become committed to change but has never demonstrated a commitment to change in the past.

g) Dr. Ramshaw also testified that “the variable most frequently associated with males for violent and non-violent criminal recidivism is psychopathy.”

h) Mr. Rouschop’s score on the Psychopathy Checklist-Revised (“PCL-R”) test was 30. Mr. Rouschop’s score of 30 meets the definition for a psychopath and his score of 30 is categorized as “severe psychopathy”. Dr. Ramshaw testified that a high PCL-R score, like Mr. Rouschop’s, was associated with greater difficulty effecting change and benefitting from treatment;

i) Dr. Ramshaw testified that there was no known treatment to effect significant change to individuals with high levels of psychopathy, like that of Mr. Rouschop. Even if Mr. Rouschop’s recently stated motivation to change is sincere, Dr. Ramshaw’s opinion was that with Mr. Rouschop’s high psychopathy score and his two personality disorders, the evidence does not establish a probability that he would be successful;

j) Dr. Ramshaw noted that Mr. Rouschop’s criminal behaviour has been both impulsive and planned. As a result, Mr. Rouschop has multiple motivations to be addressed with treatment and risk management, which pose greater challenges;

k) Dr. Ramshaw was most concerned with Mr. Rouschop’s specific risk of violent and sexual reoffending, but stated that his other criminal offending for thefts, fraud and breaches were also relevant. These convictions demonstrate that Mr. Rouschop has developed his own moral code;

l) Mr. Rouschop tends to either deny or not accept responsibility for his past misconduct depending on his assessment of what is in his best interests at the time. In February of 2020 Mr. Rouschop admitted that he was guilty of all of the sexual offences that he had been charged with, and that he had previously denied his guilt many times under oath. His previous denials include the two predicate offences. He had previously admitted to committing the 1991 sexual assault from time to time. He testified that he was now motivated to change his behaviour and had decided to admit responsibility for his prior sexual assaults as the first step. He also agreed in cross-examination that he believed that admitting to his guilt for the previous sexual assaults and sexual interference convictions would put him a better position to avoid an indeterminant sentence;

m) Dr. Ramshaw was recalled to consider Mr. Rouschop’s testimony that he was now accepting responsibility for his previous convictions for sexual offences. She testified that Mr. Rouschop’s admissions did not change any of her opinions that she had previously given to the court, which have been summarized above. She stated that Mr. Rouschop’s recent decision to admit responsibility and his desire to change did not have any impact on the level of risk that he poses to the public at present or on his prognosis;

n) She further stated that it was difficult to discern Mr. Rouschop’s true sense of responsibility, and how this might impact his prospects for treatment. The true test will be to see if he demonstrates a consistent acceptance of responsibility and commitment to change over many years.

38I accept Dr. Ramshaw’s uncontradicted opinions and her diagnoses of Mr. Rouschop as summarized above beyond a reasonable doubt. She gave her opinion evidence in a thoughtful and professional manner and her opinions were not undermined during cross-examination.

39Mr. Rouschop has been subject to supervision and has received treatment in the past since age 13. The Children’s Aid Society (“CAS”) and the Royal Ottawa Mental Health Centre (“ROH”) records include many assessments, treatment plans and interventions designed to address his disorderly behaviour, none of which have been successful.

40Dr. Ramshaw testified that the type of treatment that would be most effective for Mr. Rouschop was individual therapy and an approach that included Dialectical Behavioural Therapy (“DBT”). This type of individual therapy is not offered by Correctional Services Canada (“CSC”), which only delivers group programs, with adaptations for individuals who have intellectual or cognitive impairments. Mr. Rouschop has a mild cognitive impairment.

41Mr. Rouschop has never been offered individual DBT therapy adapted to individuals with cognitive impairment and so there is some hope that this type of therapy may be helpful to him. However, the evidence indicates that this type of therapy is not presently available to Mr. Rouschop and there is no evidence that it will be made available to him in the future. Furthermore, there is no evidence that there is a reasonable expectation that the future treatment that will be offered to Mr. Rouschop through CSC will reduce his high risk of reoffending or that it would do so within a definite period of time.

42Dr. Ramshaw’s opinion of the best treatment plan for Mr. Rouschop constitutes an expression of hope that some future treatment might reduce his high risk of reoffending. But her evidence does not constitute a reasonable expectation that this type of future treatment, which is not available through CSC, will reduce his risk of reoffending.

43Mr. Rouschop has recently started taking Lupron, which reduces his sex drive, and he has decided to admit his guilt for all his previous sexual offences. These are positive steps for Mr. Rouschop. Notwithstanding these recent positive steps, Mr. Rouschop has lied repeatedly to the court, as well as to his assessors and counsellors for many years. He also agreed in cross-examination that he would not hesitate to lie to this court if it would help him avoid being found a Dangerous Offender. Considering all of the evidence I agree with the assessment of Dr. Ramshaw that the true test of Mr. Rouschop’s commitment to change will be to see if he demonstrates a consistent acceptance of responsibility and commitment to change over many years. His presently stated commitment to change amounts to an expression of hope rather than a reasonable expectation at this time.

44The other concern is that Mr. Rouschop assaulted and sexually assaulted two other inmates during this sentencing hearing. This conduct is a very aggravating factor because it demonstrates that Mr. Rouschop is not able to control his behaviour and refrain from violent and sexual offending even while supervised in custody. Since he is unable to control his violent impulses while incarcerated, it is very unlikely that he could be adequately controlled under a LTSO.

45Mr. Rouschop submitted that imposing an indeterminant sentence would be too great a step up from the previous sentences imposed, which were mostly less than a penitentiary term. While an indeterminant sentence is a large increase from Mr. Rouschop’s previous sentences, this is not the test that I must apply. The question is whether the evidence at this hearing establishes that there is a reasonable expectation that a lesser measure would adequately protect the public. Dr. Ramshaw stated that Mr. Rouschop was presently a high risk to reoffend violently and sexually and while she was hopeful, she could not say whether any treatment would be successful in reducing his risk of reoffending.

46The issue of whether imposing an indeterminant sentence is proportional must also be considered. This submission is similar to the above that an indeterminant sentence is to great a step up or is not proportional. The question is whether the evidence establishes a reasonable expectation that a lesser sentence for the convictions including a LTSO would adequately protect the public. A reasonable expectation that a lesser measure would adequately protect the public against the commission of a serious personal injury offence requires a probabilistic assessment exceeding chance, speculation, hope, or the mere possibility that something might happen. No such evidence was presented at the hearing other than an expression of hope or a mere possibility and, as such, imposing an indeterminate sentence is proportional in the circumstances.

47The “burn out” theory was also advanced to indicate that Mr. Rouschop’s risk would be reduced over time, as he is now 48-years-old. In R. v. Poutsoungas (1989), 49 C.C.C. (3d) 388 (Ont. C.A.), the Court of Appeal rejected this submission and stated that it was a “large step” to go from a statistical tendency to a conclusion that a particular offender’s future would follow such a course. Dr. Ramshaw testified that she could not say at what age Mr. Rouschop would no longer pose a risk for violent and sexual reoffending because she did not know how he would respond to treatment, whether he would continue to take Lupron, or whether he would demonstrate a sustained commitment to significant behavioural changes.

48I am not satisfied that the evidence establishes a reasonable expectation that a conventional sentence or a conventional sentence of a minimum of two years imprisonment followed by an LTSO for not greater than 10 years would adequately protect the public against the commission of a serious personal injury offence by Mr. Rouschop. I make this finding for a number of reasons, including

i. his lengthy criminal record, which includes five sexually-related convictions;

ii. Dr. Ramshaw’s opinion is that he remains a high risk to reoffend violently and sexually;

iii. his diagnoses of antisocial personality disorder, narcissistic personality disorder, and psychopathy, all of which are difficult to treat;

iv. his conduct of committing further assaults and inappropriate sexual touching of other inmates during this dangerous offender hearing while controlled in custody; and

v. his lengthy pattern of violent behaviour outlined above.

49Based on all of the evidence I have heard, I am uncertain whether Mr. Rouschop will receive the recommended treatments and, even if they were received, whether they would be effective to adequately protect the public. Since the answer is “no” to the first and second factors in the framework set out Boutilier, an indeterminate period of incarceration in a penitentiary must be imposed in order to adequately protect the public.

50An indeterminate sentence is not a perpetual sentence, and if Mr. Rouschop receives proper treatment and demonstrates a sustained commitment to significant change over a lengthy period of time, it is possible that he may be released on a supervised plan of release in the future. Mr. Rouschop has spent over six years in presentence custody and will be eligible to apply for parole in the near future. Mr. Rouschop’s behaviour will continue to be monitored and he will be released from custody when it is determined that no longer poses an undue risk to the safety of the community.

Disposition

51For the above reasons, an indeterminant sentence is imposed on Mr. Rouschop, as the evidence heard at this hearing does not establish a reasonable expectation that a lesser measure would adequately protect the public.

52The following Ancillary Orders are also granted:

1. A s. 760 Order to Produce to Correctional Services Canada: “all reports and testimony given by psychiatrists, and any observations of the court with respect to the reasons for the finding of dangerous offender, together with a transcript of the trial”;

2. A DNA Order pursuant to s. 487.051 for 273 convictions;

3. A weapons prohibition for life pursuant to s. 109;

4. A SOIRA Order for life pursuant to s. 490.013(2.1) because the accused was convicted of more than one sexual assault;

5. A Non-Communication Order pursuant to s. 743.21 with S.D., D.A., K.B., M.V. and J.A. while in custody.

Date: May 29, 2020 COURT FILE NO.: 14-5008 DATE: 20200529 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – JACQUES ROUSCHOP Accused decision on dangerous offender application Mister Justice Robert J. Smith Released: May 29, 2020