minicounsel

Footnotes

Criminal Code, R.S.C., 1985, c. C-46; R. v. R.M.P., 2019 ONSC 2235.
Mental Health Act, R.S.O. 1990, c. M.7.
R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 13-15.
R. v. Boutilier, at para. 18.
R. v. Medford, 2019 ONSC 5065, at para. 14.
R. v. Boutilier, at para. 20; R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d) 415, at para. 30.
R. v. Boutilier, at paras. 26-27, citing R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 338.
R. v. Lyons, at p. 338.
R. v. Boutilier, at para. 46.
R. v. Boutilier, at para. 27.
R. v. Medford, at para. 16.
R. v. Gibson, 2013 ONSC 589, at para. 18 [emphasis in original]. See also R. v. C.G., 2019 ONSC 2406, at paras. 88-89.
R. v. Medford, at para. 17.
R. v. Walsh, 2017 BCCA 195, 348 C.C.C. (3d) 1, at para. 34.
R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82.
R. v. Dow, 1999 BCCA 177, 134 C.C.C. (3d) 323.
R. v. Hogg, at para. 37, citing R. v. Dow, at paras. 21 and 24-26.
R. v. Pike, 2010 BCCA 401, 260 C.C.C. (3d) 68, at para. 82.
R. v. Jones (1993), 63 O.A.C. 317 (C.A.), at para. 4. See also R. v. Camara, 2017 ONCA 817, at paras. 20 and 26-28.
R. v. Hogg, at para. 40.
R. v. Neve, 1999 ABCA 206, 237 A.R. 201, at para. 120.
R. v. Neve, at para. 112.
R. v. Boutilier, at para. 43.
R. v. A.N. (2002), 104 C.R.R. (2d) 126 (Ont. S.C.), aff’d (2005), 2005 CanLII 3328 (ON CA), 194 O.A.C. 258 (C.A.).
R. v. Rouschop, 2020 ONSC 2835.
R. v. Rouschop, at para. 18.
R. v. Williams, 2018 ONSC 2030, at para. 252.
R. v. McArthur, [1998] O.J. No. 5184, at para. 11.
R. v. George (1998), 1998 CanLII 5691 (BC CA), 126 C.C.C. (3d) 384 (B.C.C.A.), at para. 23.
R. v. Williams, at para. 252.
R. v. George, at para. 23.
R. v. C.G., at para. 97.
R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 49.
R. v. Hall (2004), 2004 CanLII 14199 (ON CA), 70 O.R. (3d) 257 (C.A.), at para. 62.
R. v. Piapot, 2017 SKCA 69, 355 C.C.C. (3d) 239, at paras. 66-67 and 78.
R. v. C.G., at paras. 91-94.
R. v. Boutilier, at para. 75.
R. v. M. (N.J.) (2005), 2005 CanLII 8674 (ON CA), 201 C.C.C. (3d) 541 (Ont. C.A.), at para. 47.
R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.).
R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.).
R. v. Allen, 2007 ONCA 421, 86 O.R. (3d) 376, at para. 31. R. v. Allen was determined under the prior “reasonable possibility” regime for dangerous offenders.
R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.
R. v. Osborne, 2014 MBCA 73, 314 C.C.C. (3d) 57, at paras. 73-74.
See also R. v. Bunn, 2014 SKCA 112, 446 Sask. R. 184; R. v. D.J.S., 2015 BCCA 111, 370 B.C.A.C. 57, leave to appeal refused, [2015] S.C.C.A. No. 194; and R. v. Taylor, 2012 ONSC 1025, at para. 346. These three cases were referred to by the Court of Appeal for Ontario in R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 35. The Court of Appeal for Ontario did not decide this issue in Sawyer.
R. v. Osborne, at para. 73.
R. v. Farouk, 2015 ONSC 4257, at para. 422.
R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, at para. 58, leave to appeal refused, [2008] S.C.C.A. No. 39.
R. v. Grayer, 2007 ONCA 13, 215 C.C.C. (3d) 505.
R. v. Payne (2001), 2001 CanLII 28422 (ON SC), 41 C.R. (5th) 156 (Ont. S.C.), at para. 138, cited in R. v. Grayer, at para. 62.
See also R. v. Ramgadoo, 2012 ONCA 921, 293 C.C.C. (3d) 157, at para. 50.
R. v. Hess, 2017 ONCA 220.
R. v. Hess, at paras. 60-61.
R. v. Grayer, at para. 67.
R. v. Boutilier, at paras. 53, 61, and 63.
R. v. Boutilier, at para. 56.
R. v. Spilman, at para. 32.
R. v. C.G., at para. 119.
R. v. Spilman, at para. 33.
R. v. Spilman, at para. 35.
R. v. Spilman, at para. 36.
R. v. Spilman, at para. 37.
R. v. Spilman, at para. 39.
R. v. Spilman, at para. 44, citing R. v. Hopley, 2015 BCCA 499, 380 B.C.A.C. 160.
See also R. v. Spilman, at para. 44, citing R. v. Cote, 2015 SKCA 52, 457 Sask. R. 237, at paras. 78-81; R. v. D. (E.E.), 2007 SKCA 99, 304 Sask. R. 192, at para. 74.
R. v. Hopley, at paras. 59 and 63-64. See also R. v. Cote, at paras. 78-81.
R. v. Spilman, at paras. 51-54.
Corrections and Conditional Release Act, S.C. 1992, c. 20.
Sex Offender Information Registration Act, S.C. 2004, c. 10.

COURT FILE NO.: 15-SA5126

DATE: 2020/11/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

R.M.P.

Respondent

COUNSEL:

Lia Bramwell, for the Applicant

Michael Davies, for the Respondent

HEARD: November 18, 20, 21, 22, 25, 26, 27, 28, and 29, 2019, February 18, 19, and 20, and July 20 and 21, 2020

AMENDED REASONS FOR SENTENCE/DANGEROUS OFFENDER APPLICATION

The text of the original reasons for sentence was amended on November 20, 2020 and the description of the amendment is appended.

RYAN BELL J.

1On January 16, 2018, I found R.M.P. guilty of one count of sexual assault on C.S. and one count of sexual assault on K.H. R.M.P. committed both assaults on July 11, 2015 at the Ottawa apartment shared by C.S. and K.H. At the time of the offences, R.M.P. was being supported by an Assertive Community Treatment Team (“ACTT”) in the community. He had recently completed a term of probation.

2When he was convicted for the predicate offences, R.M.P. was facing a number of outstanding charges. Post-conviction, while he was on bail, R.M.P. incurred additional charges. The Crown succeeded on its application to revoke his releases on all outstanding charges. R.M.P. has remained in custody from April 20, 2018 to the present date, a period of two and a half years.

3Following a contested hearing, I ordered an assessment of R.M.P. under s. 752.1 of the Criminal Code.¹ After receipt of the assessment, the Attorney General consented to the dangerous offender application.

4R.M.P. is now 42 years old. His criminal record spans many years. The Crown’s position is that R.M.P. should be declared a dangerous offender under s. 753(1) of the Criminal Code and sentenced to an indeterminate period of incarceration. The Crown submits that the predicate offences of sexual assault are the “latest installments” in R.M.P.’s long history of criminal behaviour, and that his criminal history evidences not only a repetitive pattern of behaviour that puts others at risk of serious injury, psychological damage, or death (s. 753(1)(a)(i)), but also a pattern of persistent aggressive behaviour showing a substantial degree of indifference respecting the reasonably foreseeable consequences of his behaviour (s. 753(1)(a)(ii)). The Crown also submits that by his conduct in the predicate offences of sexual assault and his prior sexual assault conviction, R.M.P. has shown a failure to control his sexual impulses and a likelihood of causing injury, pain, or other evil to other people in the future (s. 753(1)(b)).

5R.M.P.’s position is that he should be sentenced to time served, after receiving 1.5 to 1 credit for his pre-sentence custody. R.M.P. submits that the Crown has not proved the requisite elements to obtain a designation of dangerousness. Specifically, R.M.P. maintains that the Crown has failed to establish the requisite pattern of either repetitive behaviour or persistent aggressive behaviour, and has not demonstrated a “likelihood” of R.M.P. causing injury, pain, or other evil to another person through failure in the future to control his sexual impulses. R.M.P. submits that if he is designated a dangerous offender, the evidence adduced during the hearing demonstrates that there is a reasonable expectation that a measure other than an indeterminate sentence will adequately protect the public.

6A large amount of documentary evidence was placed before the court on the sentencing hearing. There were admissions filed pursuant to s. 655 of the Criminal Code. In addition, I heard viva voce testimony from nine witnesses called by the Crown, including Dr. Jonathan Gray, and one witness called by the defence, Dr. Derek Pallandi. Both Dr. Gray and Dr. Pallandi were qualified as experts in the areas of forensic psychiatry, the diagnosis and treatment of mental illness, and the assessment and management of risk.

Nature of the Offences

Predicate Offences: Sexual Assaults on K.H. and C.S.

7R.M.P. was an acquaintance of K.H. and C.S. K.H. is an adult woman who has developmental disabilities and borderline personality disorder. She cannot read and is unable to write a full sentence. At times during her testimony, she became overwhelmed and her responses were often childlike.

8On July 11, 2015, C.S. called R.M.P. to find out whether he had any marijuana. R.M.P. came over to the apartment shared by K.H. and C.S. The three of them smoked marijuana together. K.H. testified that after taking a couple of drags of the marijuana, she was unable to move her legs. C.S. testified that she, too, could not move after smoking the marijuana that R.M.P. had given to them.

9While K.H. and C.S. were immobilized, R.M.P. put his fingers under C.S.’s skirt and said, “let me check to see if you are pregnant, because I can tell if a woman is pregnant.” C.S. testified that she was pregnant at the time and R.M.P. knew that to be the case. C.S. told R.M.P. not to touch her and warned him that her boyfriend was on his way to the apartment. Without C.S.’s consent, R.M.P. touched her vagina and digitally penetrated her.

10R.M.P. then went over to K.H., who was on her bed in the living room of the apartment. He asked her to have sex with him. When K.H. said “no”, R.M.P. proceeded to remove her clothes and then his own. He laid on top of K.H. on the bed. K.H. tried to push R.M.P. off and told him to “get off.” R.M.P. then put his penis in K.H.’s vagina and began, in her words, “pumping, pumping his sperm into me.” K.H. testified that when it became clear that R.M.P. intended to have sex with her, she asked him to wear a condom. R.M.P. refused.

11K.H. described the emotional impact of R.M.P.’s sexual assault on her in her victim impact statement: when she goes out, she gets scared and she worries that R.M.P. will come up to her; she worries that he could find out where she lives because she saw him “all the time” in her neighbourhood; she stopped going to places she liked to go, stays at home more, and is always checking to see if he is around in the community; she trusts very few people, is now a light sleeper, and feels scared all the time; she never goes anywhere alone; since the sexual assault, she has little patience, feels angry and tense, and sometimes starts crying. She feels depressed and sad “all the time.”

12C.S.’s victim impact statement was also put into evidence. C.S. reported that since the sexual assault, she has been having nightmares, she is afraid to ride the bus, thinking that R.M.P. will be on it, and she cannot take her dog out because she is afraid that he is following her. C.S. had to give up her job as a peer worker because “she can’t do that work if she knows that he is out there, at one of the shelters.” She feels that all she can do is stay home and be afraid until “this is all done and over with.” Her medication for her anxiety has had to be increased so that she can feel a little better during the day.

R.M.P.’s Criminal History

13R.M.P. was born February 9, 1978. He is currently 42 years old. Including the predicate offences, R.M.P. has been convicted of 53 offences. More than one third of R.M.P.’s convictions are for breaches of recognizances and probation orders. On many occasions, R.M.P. pleaded guilty to the offences with which he was charged. In my review of R.M.P.’s criminal record, I have grouped certain of the offences together by time period.

(i) Offences Between 1994-2003

14In the period from 1994 to 2003, R.M.P. was convicted of the following offences:

In August 1994, R.M.P. was convicted of what the trial judge described as a “very minor technical assault” on an 11-year-old girl. The assault consisted of R.M.P. grabbing the girl’s shoulders. R.M.P. received an absolute discharge.
In February 1998, R.M.P. pleaded guilty to and was convicted of mischief by damaging a bus window, possession of a weapon (an air rifle) for a purpose dangerous to the public peace, and breach of recognizance (for violating a condition to abstain from alcohol). He was sentenced to 20 days in jail concurrent on the three counts and one year of probation.
In December 1998, R.M.P. pleaded guilty to and was convicted of failure to comply with the February 1998 probation order (failure to report to his probation officer) and an attempted robbery of a convenience store clerk in November 1998. R.M.P. said to the clerk twice “I have a gun”, although he did not, in fact, have a gun.
In January 1999, R.M.P. pleaded guilty to break and enter of an apartment and fraud under $5,000.
In July 1999, R.M.P. pleaded guilty to and was convicted of a robbery committed in June 1999. R.M.P. and another man entered a gas station in the early hours of the morning. When he was asked for payment for some cigarettes, R.M.P. handed a note to the clerk that stated he had a gun and to turn over the money. Neither R.M.P. nor the other man had a gun. When the clerk put the cash on the counter they fled. Both men told police that the robbery was to support their crack habit. R.M.P. received a sentence of 15 months in jail, followed by two years of probation. Before he was sentenced, R.M.P. stated “I’ve been doing drugs since I was 14...I gotta daughter, and...want to stop taking drugs and alcohol.”
In January 2001, R.M.P. pleaded guilty to break and enter, assault, and failure to comply with the July 1999 probation order. R.M.P. broke into the apartment of an acquaintance while that man was in the lobby of the apartment building. The man confronted R.M.P. and R.M.P. then hit the man resulting in a transient injury to the man’s forehead. The conviction for failure to comply with his probation order (by failing to keep the peace and be of good behaviour) stemmed from another incident on the same date: when R.M.P. was confronted by a store manager about the theft of some VHS tapes, R.M.P. threatened the manager that he would shoot him if he called the police and then R.M.P. ran away. R.M.P. received a sentence of six months in jail. Before he was sentenced, R.M.P. told the court that when he got out of jail, he was going to go for treatment because “I got kids and my kids miss me...and it’s not a life.”
In March 2002, R.M.P. pleaded guilty to and was convicted of theft under $5,000 for shoplifting. He received a suspended sentence and probation of 18 months.
In July 2003, R.M.P. pleaded guilty to and was convicted of failure to comply with the March 2002 probation order by breaching the condition of the order that required him to stay away from the Rideau Centre. He received a suspended sentence and 6 months of probation.

(ii) The Domestic Incidents in 2005

15The next incidents occurred in June and July 2005 and involved C.M., R.M.P.’s former common law partner and the mother of two of R.M.P.’s three children, and R.M.P.’s father. At the time, C.M. and R.M.P. were living with R.M.P.’s father. C.M. was five and a half months pregnant with their first child. On June 30, 2005, C.M. left the apartment to cash her disability cheque. R.M.P. asked her to give him some money but she refused. They went to a friend’s house and R.M.P. continued to argue with her about the money. R.M.P. then grabbed C.M. by both arms and threw her onto a chair. He grabbed her by the hair leaving scratches on the back of her neck. He continued to demand money and to yell at her. R.M.P. then grabbed C.M. from behind and proceeded to choke her.

16On July 3, 2005, R.M.P. was escorted back to his father’s home by police. Immediately upon his return, R.M.P. began arguing with C.M. He then proceeded to bang on the apartment unit’s air conditioner. When his father told him to stop, R.M.P. pushed his father away. R.M.P. continued to yell at C.M. She reacted by smiling and laughing. R.M.P. proceeded to poke C.M. in the forehead, slap her in the face and on her shoulders, and pull her hair. When his father tried to intervene, R.M.P. advanced on his father with a knife and then replaced that knife with another, sharper knife. R.M.P. yelled at his father and C.M. “do you want to fucking die now.” R.M.P. then started stabbing the floor with the knife. When C.M. moved to a chair closer to the door, R.M.P. continued to yell at her and made a stabbing motion towards her face. He grabbed her glasses off her face and smashed them on the coffee table.

17C.M. left the apartment. R.M.P. followed her and asked her to come back. C.M. agreed. Back at the apartment, R.M.P. blocked C.M. from getting a glass of water. He then grabbed her by the hair and pulled her head back. He held a lit cigarette up to her eye and told her that he was going to burn her. When R.M.P.’s father tried to intervene, R.M.P. came after him. C.M. then left the apartment. Back at the apartment, R.M.P. began cutting up C.M.’s bank cards, health card, and SIN card and said he was going to cut up her face.

18Following a court-ordered 30-day inpatient assessment on the Forensic Unit at the Royal Ottawa Hospital, R.M.P. was transferred to the schizophrenia unit at the Royal Ottawa Hospital. He remained there until his discharge into the community on September 27, 2005, under the supervision of the ACTT, and subject to bail conditions, including that he abstain from the consumption of alcohol and keep the peace and be of good behaviour.

(iii) The January 2006 Offences

19On January 23, 2006, while he was on bail for the domestic offences, R.M.P. got on the elevator at the apartment complex where he was living, apparently intoxicated and holding a bottle of whiskey. The elevator was already occupied by three women, one of whom, G.U., uses a wheelchair. R.M.P. grabbed at S.T.’s buttocks and pinched them. He grabbed her and began hugging her and would not let go. R.M.P. screamed obscenities at S.T. as she left the elevator on the ground floor; he spit at her and it landed on her arm. As G.U. tried to manouevre her wheelchair past R.M.P. to try to get off the elevator, R.M.P. bit her left thigh, causing a mark but not a puncture wound.

20When R.M.P. eventually left the elevator and went to the lounge, he was confronted by C.S.D., who asked him to go back to his apartment unit. R.M.P. yelled obscenities and told her that if she called the police, he would smash the liquor bottle he was holding over her head. At that point, R.M.P. pinned C.S.D. against a bench, grabbed her right breast area, and then grabbed her groin area.

21When he was arrested, R.M.P. threatened one officer that he was “going to put a bullet in his head” and another that he would cut him with a knife if the handcuffs came off. R.M.P. continued to spit saliva and blood while being transported to the cell block.

22Arising from the incidents in June and July 2005 and January 2006, on May 8, 2006, R.M.P. pleaded guilty to and was convicted of three counts of assault, two counts of assault with a weapon, two counts of mischief, one count of sexual assault, two counts of uttering threats, and one count of failure to comply with his recognizance. G.U. provided a victim impact statement in which she stated that she was no longer able to sleep at night, her self-esteem was low, and she no longer trusted men. She stated that she was concerned for her safety.

23R.M.P. was sentenced to 18 months in jail in addition to his pre-sentence custody, to be followed by a period of probation of three years. The court recommended that R.M.P. serve the custodial portion of his sentence at St. Lawrence Valley Correctional and Treatment Centre.

(iv) 2007-2008: Further Failures to Comply with Probation

24On October 17, 2007, R.M.P. pleaded guilty to two counts of failing to comply with his probation order by not attending appointments for psychiatric treatment and not notifying his probation officer of a change of address.

25In December 2007, R.M.P. pleaded guilty to two additional counts of failing to comply with his probation order by attending at C.M.’s apartment and by not reporting for scheduled appointments. R.M.P. was sentenced to five months in jail.

26On January 16, 2008, R.M.P. was released from custody. Within days, R.M.P. failed to comply with the terms of his probation by missing appointments and failing to attend to receive his injectable medications. R.M.P. was eventually located by the police and taken into custody. In March 2008, he pleaded guilty to two counts of breach of probation and received a sentence of five months’ custody less pre-sentence custody.

(v) June 2012: Break and Enter and Mischief

27In June 2012, R.M.P. pleaded guilty to and was convicted of break and enter and mischief for breaking into an LCBO and stealing some alcohol. When he was arrested, he kicked out the window of the police cruiser. While he was being transferred to the hospital, R.M.P. spit on a paramedic. R.M.P. was sentenced to 90 days in jail and 12 months’ probation.

(vi) May 2014: Assault on C.M.

28In April 2014, R.M.P. moved back in with C.M. R.M.P. had been abusing prescription medications for about a week prior to the incident. On the day of the incident, R.M.P. began arguing with C.M. when she returned to the apartment. He accused her of sleeping with a neighbour and demanded her wallet. C.M. retreated to the bedroom. R.M.P. stormed in and in an effort to take her phone away. He squeezed her hands, causing her to cry out in pain and release the phone. In June 2014, R.M.P. pleaded guilty to assault. R.M.P. was sentenced to 20 days in jail, after taking into account pre-sentence custody, and probation of 12 months. R.M.P. apologized to the court for his actions.

(vii) May 2017: Uttering Threats and Failure to Comply with Recognizance

29In May 2017, R.M.P. pleaded guilty to uttering a threat to C.M. – he said “I will crush you” – and failing to comply with the condition of his recognizance that required him to stay away from C.M.’s residence. He was sentenced to time served, a suspended sentence, and one day of probation.

(viii) The Remaining Offences

30R.M.P. was facing outstanding charges at the time of his convictions on the predicate offences in January 2018. He also incurred new charges post-conviction. In June 2018, R.M.P. was convicted of two counts of causing a disturbance, mischief to property, and breach of recognizance based on events that occurred in March 2018: R.M.P. was blocking traffic on the road, hitting people’s cars, and yelling at people.

31In July 2018, R.M.P. was convicted of breaches of his recognizance, possession of marijuana, an assault on C.M. with a weapon (a book), and two counts of mischief. The trial judge found that although R.M.P. threw the book at C.M., it did not hit her.

Circumstances of the Offender

32R.M.P. was born in Ottawa on February 9, 1978. He was raised in Gatineau. He has one older brother and one older maternal half-sister. File records disclose that R.M.P.’s father was a heavy user of alcohol and crack cocaine, and that he was physically and verbally abusive of R.M.P.

33R.M.P.’s parents separated when he was seven or eight years old. R.M.P. lived briefly in a foster home and then returned to live with his mother. When he was 11, he was sexually abused by his mother’s new boyfriend and, apparently as a result of the trauma associated with the assault, he spent one and a half years at a psychiatric hospital in Quebec. R.M.P. then returned to live with his father because his mother was too ill with schizophrenia to take care of him; he spent the next period of time moving back and forth between the residences of his father and his mother.

34R.M.P. has a grade six education. He stopped attending school at the age of 14 when he was expelled for pulling fire alarms and setting a fire. He worked at several unskilled jobs, mostly in his adolescence. R.M.P. has been on ODSP since 2004. In February 2018 (when R.M.P. was interviewed for a sexual behaviours assessment under the Mental Health Act²), he told Dr. Gray that he had no friends.

Alcohol and Drug History

35In 2005, R.M.P. was admitted to the Royal Ottawa Hospital for an inpatient evaluation of criminal responsibility. According to Dr. Brathwaite’s August 4, 2005 report, R.M.P. began drinking heavily at the age of ten, started experiencing alcohol-related blackouts at 14, and suffered from withdrawal tremors the morning after drinking large amounts of alcohol.

36Dr. Brathwaite’s report records that R.M.P. reported marijuana use beginning at the age of 12, cocaine use at 14, and crack cocaine use by the age of 17. At 17, he prostituted himself to support his addiction to crack cocaine. R.M.P. also reported using other recreational drugs including, LSD, “crystal meth”, and morphine sulphate.

37R.M.P. told Dr. Brathwaite that he had been using crack and drinking alcohol continuously for four to five days before the incident on June 30, 2005 (the domestic assault on C.M.) and that the money he was demanding from her was to pay a drug debt. R.M.P. said that, at the time, he was not taking his own prescribed medications and may have been taking medications prescribed for someone else.

Relationship History

38C.M. is R.M.P.’s former common law partner and the mother of two of R.M.P.’s three children. C.M. testified that they met in 2000 or 2001. He moved into her apartment the same day that they met and they began a relationship about a week later. Six months later they were evicted from her apartment. A period of housing instability followed: they lived in a tent, “couch hopped”, and lived in a rooming house before C.M. was able to secure an apartment. They moved out of that apartment because of concerns for their safety. C.M. testified that she was complicit in R.M.P.’s breaches of his no-contact orders.

39Their daughter was born in 2005. C.M. lost contact with R.M.P. while he was serving his sentence for the 2006 convictions for domestic violence. She briefly interacted with him in late 2007. She did not have contact with R.M.P. again until 2012. In 2013 or 2014, C.M. thought that R.M.P. was doing better and she agreed to put him on her lease. At the time, R.M.P. was seeing Dr. Ribeyre and the ACTT. C.M. began attending meetings with R.M.P. C.M. testified that after about six months of doing well and being relatively stable, R.M.P. commenced a downward spiral which began with his interaction with C.M.’s estranged partner: R.M.P. began drinking and regularly abusing drugs. Eventually he was hospitalized.

40R.M.P. was living with C.M., their daughter, and C.M.’s second child when their son was born in 2014. Two months later, CAS took the children out of C.M.’s care under a voluntary arrangement. The children were returned to C.M. in March 2015 but were apprehended by CAS a short time later. Following a lengthy trial before McKinnon J., all three children were made Crown wards for the purpose of adoption.

Past Psychiatric History

41There have been a number of psychiatric and mental health assessments done of R.M.P. over the years in a variety of contexts.

(i) Early Assessments

42As previously noted, R.M.P.’s first psychiatric admission was for 1.5 years at the age of 11 after he was sexually abused by his mother’s boyfriend. In his assessment with Dr. Gray, R.M.P. described hearing voices as the reason for his admission. According to Dr. Gray, the records suggest that R.M.P. was exhibiting anxiety symptoms and paranoid fears that his mother was in danger.

43In January 1998, R.M.P. was diagnosed by Dr. Labelle, a psychiatrist, with drug-induced psychosis with the possibility of early schizophrenia.

(ii) Guelph Assessment and Treatment Unit

44Between December 2, 1999 and May 31, 2000, R.M.P. received treatment at the Guelph Assessment and Treatment Unit. R.M.P. was transferred from the Ontario Correctional Institute due to a perceived need for him to receive psychiatric treatment. According to the records, R.M.P. was engaged with his treatment and there were no concerns about his institutional behaviour. While he was at Guelph, R.M.P.’s treatment focused mainly on anxiety management, which was seen as a major component of his presentation at that time.

(iii) Dr. Freeland – Royal Ottawa Hospital

45Following the charges for shoplifting, Dr. Freeland of the Royal Ottawa Hospital prepared a report in which she advised that R.M.P. was admitted to the Royal Ottawa for exacerbation of psychotic symptoms, including auditory hallucinations and paranoid delusions. R.M.P. was reported to have been compliant with his treatment, including antipsychotic drugs, while he was in hospital. His clinical diagnosis was schizophrenia, paranoid type, and substance abuse and dependence. Upon his discharge in February 2002, R.M.P. was followed closely by Dr. Freeland and the Royal Ottawa’s Schizophrenia Program ACTT. He attended a group meeting on a weekly basis to address his addiction issues and was reported to have made “considerable effort” to reduce his use of alcohol and drugs.

(iv) Dr. Brathwaite’s Assessment

46In August 2005. Dr. Brathwaite opined that R.M.P. did not meet the threshold for a s. 16(1) not criminally responsible defence. She reported that R.M.P. was psychiatrically stable and properly medicated as a result of his time spent in hospital during the assessment. In her report, Dr. Brathwaite suggested “elements of a borderline personality disorder and residual symptoms of post-traumatic stress disorder. Alcoholism and substance abuse compound the problem.”

(v) St. Lawrence Valley Correctional Institute

47R.M.P. was admitted to the St. Lawrence Valley Correctional Institute between June 15, 2006 and May 10, 2007. At the time, R.M.P. was incarcerated for the offences that occurred in 2005 and 2006, including the domestic assaults, sexual assault, and uttering threats. R.M.P.’s diagnoses on admission included “schizophrenia, paranoid type; substance abuse disorder; anxiety/panic disorder; and personality disorder not otherwise specified.” His diagnoses were unchanged at the time of his discharge.

48During his admission at St. Lawrence Valley, R.M.P. complained of auditory hallucinations and fears that others around him were going to kill him. These were suggested to be symptoms of his mental illness, schizophrenia. R.M.P. was also seen to be anxious and avoiding contact with others.

49On July 20, 2006, Dr. Tessier (the treating psychiatrist) started R.M.P. on Clozapine, a powerful antipsychotic medication. Its use was discontinued, restarted, and again discontinued when R.M.P. began to exhibit side effects of the medication. R.M.P. was then started on an injectable antipsychotic medication.

50Despite compliance with these medications and the restarting of Clozapine, R.M.P. appeared to be still suffering from symptoms of psychosis, including auditory hallucinations and paranoia. Dr. Tessier recommended electroconvulsive therapy which occurred in April 2007. The electroconvulsive therapy appeared to improve many of R.M.P.’s symptoms, including his anxiety symptoms.

51In February 2007, R.M.P. developed a delirium as a result of drinking a large quantity of Purell hand wash. The delirium intensified R.M.P.’s auditory hallucinations to the point where correctional staff were required to put him in restraints. After a few days, his delirium improved.

52When he was discharged from St. Lawrence Valley, R.M.P. was transferred to the Brockville Psychiatric Hospital for further rehabilitation and treatment of his schizophrenia. The consulting psychiatrist, Dr. Eaton, agreed with the diagnosis of schizophrenia prior to his transfer and also suggested “ongoing anxiety symptoms.”

53In his report, Dr. Gray noted that because of R.M.P.’s unstable mental state, he did not fully participate in the recommended programming at St. Lawrence Valley. R.M.P. attended 12 of 17 sessions of the substance abuse psychotherapy group; however, as was noted in the discharge summary,

It was rare for [R.M.P.] to be attentive or to be able to demonstrate any understanding of concepts. Most times [R.M.P.] was in attendance, he complained of feeling paranoid, sometimes too paranoid to remain in the group for its entirety. The times this man did remain in the group, he tended to be distracted and unfocused. He never completed any of the assigned work and his participation was nil.

54The facilitator of the self-regulation group, the group therapy offered at St. Lawrence Valley for sexual offenders, stated that “[R.M.P.’s] clinical instability precluded his attending his group treatment program.”

(vi) The 2010-2017 Period

55Commencing in June 2010, R.M.P. resided at a boarding home for a two-year period, during which he completed a six-month Concurrent Disorders Program at the Montfort Hospital under the supervision of Dr. Fleury, and remained connected to the aftercare program. In February 2011, when his file was transferred to an ACTT closer to where R.M.P. was living, Dr. Ribeyre noted that R.M.P. was doing very well and seemed stable from a mental health perspective. Despite using alcohol and cannabis from time to time, R.M.P. was reported to be participating in Montfort’s addictions program and doing well in the program.

56In June 2012, R.M.P. was placed on a five-day assessment order to assess his fitness to stand trial on the charges of break and enter, assault, and mischief. At the time of his assessment, R.M.P. was taking several medications, including Clozapine. The assessing psychiatrist was of the opinion that R.M.P. was fit to stand trial and that there were “no issues with respect to criminal responsibility.”

57On February 14, 2013, R.M.P. was admitted to the Ottawa Hospital on a Form 1 involuntary admission under the Mental Health Act. On discharge, R.M.P. was placed on an injectable medication because of his historical problems with medication compliance. In the discharge summary, the psychiatrist, Dr. Bismil, noted that it was apparent that R.M.P. was exhibiting substance-seeking behaviour.

58Dr. Bismil was also the attending psychiatrist during R.M.P.’s admission on a Form 1 from March 14 to 28, 2013. Dr. Bismil’s diagnoses at that time included “malingered psychosis. History of schizophrenia.”

59Following his discharge, R.M.P. was then followed by the Bank Street ACTT under Dr. Ribeyre. In March 2014, at R.M.P.’s request, Dr. Ribeyre transferred R.M.P.’s care to his family doctor. At that time, R.M.P. was said to not have any psychotic, anxiety, or mood symptoms and was only taking Concerta, a psychostimulant, and Clonazepam, an anti-anxiety benzodiazepine. In his discharge summary, Dr. Ribeyre assigned diagnoses to R.M.P. of “adult ADHD. Rule out antisocial traits.”

60In June 2014, R.M.P. was placed on a Form 1 by his family doctor. R.M.P. was diagnosed with substance-induced psychosis, with a possible diagnosis of schizophrenia. Against medical advice, he left the hospital, only to return to the emergency room the next day after using crack cocaine. On his discharge in August, he was again followed by the Bank Street ACTT under Dr. Ribeyre. For the next few months, Dr. Ribeyre prescribed mood stabilizers, a psychostimulant, and an anti-anxiety medication. Dr. Ribeyre continued to query whether R.M.P.’s symptoms were due to malingering or chronic delusional disorder or a mood component. Over the next few months, Dr. Ribeyre noted few psychiatric symptoms, with no signs of schizophrenia. Dr. Ribeyre suggested that there might be a diagnosis of schizotypal personality order with “magical thinking, suspiciousness, and eccentricity.”

61In his progress note of July 21, 2015 – days after the predicate offences – Dr. Ribeyre noted that R.M.P. was “well-groomed, no anger, good eye contact” and that his speech was normal but his pattern of thought was not always logical.

62Dr. Ribeyre’s discharge summary explains the reason for R.M.P.’s discharge from the Bank Street ACTT in July 2017:

The patient refused to engage any more with us and has not followed on any recommendations...Many diagnoses have been evoked for this patient. From schizophrenia to malingering disorder, via generalized anxiety disorder and attention deficit hyperactivity disorder. As he is constantly using substances of abuse, it is hard to get an idea of what his baseline could be without substances. One can confirm the following diagnoses: polysubstance abuse and personality disorder (most likely a combination of antisocial and schizotypal traits). Many ways to engage the patient into recovery have been tried but he never followed. Any time seem lately, the patient was under the influence of substances and he was, at times, displaying inappropriate behaviours. The patient had to be escorted to the exit by security. The patient seems to display a high intolerance to antipsychotics.

Supervision Evidence

63As evidenced by the records, during R.M.P.’s first probationary period beginning in October 2001, R.M.P. attended most scheduled appointments. He appears to have shown good insight into the negative effects of his substance abuse and how they might increase his risk of criminal behaviour. For example, a case note in 2003 indicated that R.M.P. “knows that his criminal behaviour is directly related to drugs/alcohol use since the effect of substances provides him courage to commit crime and increase his likelihood of violence.” Although he had periodic relapses in his use of alcohol and cannabis, he was forthcoming when he did abuse substances while on probation. During this period, R.M.P. was followed closely by an ACTT who described R.M.P. as being compliant with his recommended psychiatric medications.

64During R.M.P.’s next period of supervision from April 2006 to May 2010, he was again closely supervised by an ACTT, including by two psychiatrists who were seeing him on a weekly basis. In September 2007, R.M.P. was reported to have used crack cocaine, as well as marijuana and alcohol. He missed appointments at the Royal Ottawa Mental Health Centre with his psychiatrist, and he failed to attend an appointment for his injection of an antipsychotic medication. When R.M.P. missed several appointments with his probation officer, a bench warrant was prepared. After his release in April 2008, R.M.P. was more compliant with appointments and attended most scheduled meetings with his probation officer. His case manager at the John Howard Society reported that his behaviour at his supervised residence was very good and that “he has a good rapport with staff and frequently speaks with them about problems or to seek advice.” He attended a wellness group at the ACTT and was closely followed by them.

65Although there were occasional relapses, R.M.P. appears to have remained largely abstinent of substances until November 2009. At that time, R.M.P. left his supervised home and did not return. When he called his probation officer two days later, he reported that “he has screwed up. Drank, smoked marijuana and did crack.” After this incident, R.M.P. reengaged with his probation officer, attended programs at the John Howard Society, saw members of the ACTT clinical team, and remained in compliance with his medications.

66Probation officer Linda Lambert testified at the hearing. In her May 25, 2010 closing summary, Ms. Lambert noted that “[a]lthough there were a few relapses and a breach laid and withdrawn, he has been in steady residence at [the John Howard Society] and overall was stable and followed the rules and participated in programming for relapse and life skills. It is considered that he completed probation satisfactorily at this time and would remain a suitable candidate.”

67Following R.M.P.’s release from custody on the break and enter and mischief convictions in August 2012, he began a third period of supervision. This period lasted until August 2013. He resided initially at a supervised residence but then moved to the residence where his mother resided. After he was evicted from that residence, he went to The Ottawa Mission. In March 2013, following a period of hospitalization, R.M.P. moved to a supervised residence; within weeks, he moved to a second supervised residence. R.M.P. was reported to be unhappy at the second residence because of the presence of recreational drugs. The probation officer who authored the August 2013 closing summary observed that R.M.P. “really seems committed to staying drug free...has been drug free for some time and incredibly compliant with his treatment regime. Suitable for future community supervision.”

68During the next period of supervision which began in August 2014, R.M.P. attended a New Directions Program for Spousal Abuse. He was reported to have refused to take antipsychotic medications because he felt they made his psychosis worse. He was on a mood stabilizer and an ADHD medication. He was followed by the ACTT, including Dr. Ribeyre.

69After he was released on the charges of domestic violence and theft under $5,000, R.M.P. was ordered to be followed by the John Howard Society bail supervision program. This period of supervision commenced in June 2016. By October, it was observed that he was “not participating well with the ACT Team.” His attendance at appointments with his bail supervisor was sporadic. A February 2017 letter from the Montfort Renaissance Program notes that his file was closed due to his lack of enthusiasm and engagement with their services. His mental health was described as “deteriorating significantly.” R.M.P.’s last meeting with the ACTT was on June 22, 2017. As previously noted, R.M.P. was discharged from the ACTT in July 2017 due to his non-engagement.

Parole Board of Canada Evidence

70Karen Thomson is the Regional Manager for Conditional Release Programs for the Parole Board of Canada in the Ontario/Nunavut Region. She provided a description of the functions of the Parole Board and the parole application and the release of offenders, including dangerous offenders, from federal institutions.

71The Parole Board may impose special conditions on an offender’s release. These conditions must be related to the risk and the needs of the specific offender, and they can relate to abstaining from alcohol and drugs, participating in a program or counselling, avoiding certain persons, and avoiding certain locations. In the case of a long-term supervision order, a residency condition may be deemed reasonable and necessary to manage the offender’s risk. Such a condition can be imposed for a maximum of 365 days at a time, and can be prolonged for further periods of 365 days.

72An offender on a long-term supervision order can be suspended when a breach of a condition occurs, in order to prevent a breach of a condition, or to protect society due to increased risk. Correctional Service of Canada (“CSC”) can make a referral to the Parole Board. However, the Board cannot revoke a long-term supervision order; it may only cancel the suspension or make a recommendation that a charge be laid under s. 753.3 of the Criminal Code.

CSC Evidence

73Lindsay Maahs is a Parole Officer Supervisor with CSC. The parole officers she manages are those who supervise dangerous offenders released into the community in Ottawa. She provided the court with a description of the intake process, the types of programming available to inmates in federal institutions, the parole process and CSC’s role in that process, and the supervision available once offenders are released back into the community.

74As part of an intensive intake process lasting from 60 to 90 days depending on the duration of the offender’s sentence and the nature of the offence committed, a “correctional plan” is developed for the offender. The plan is an active document that is updated throughout the offender’s incarceration to reflect the offender’s security classification and progress in programming, and to document the offender’s levels of accountability, responsivity, engagement, and motivation.

75Ms. Maahs testified about the Integrated Correctional Program Model (“ICPM”) available for the treatment of offenders in federal institutions. The purpose of the ICPM is to identify the offender’s level of risk and to deliver programming that addresses the “primary areas” (general criminality, violence, family violence, substance abuse, and sexual violence) in an integrated way. The ICPM helps offenders understand the risk factors that are linked to their criminal behaviour and teaches them how to use the skills learned in the program in challenging situations. The programs are offered at moderate and high intensity levels to address the criminal risks of the offender, with each stream comprised of components which offer continuous intervention from the start of the offender’s sentence to warrant expiry, as required. Ms. Maahs testified that a person with special needs such as mental health issues would be specifically supported in the ICPM. There is extensive substance abuse programming available for those offenders in the federal correctional system who choose to access it.

76CSC’s supervision strategies are a balance of supporting and monitoring the offender in the community. The highest risk offenders are subject to the intensive supervision protocol, involving a minimum of eight face-to-face interventions per month. In periods deemed “critical”, the number of visits may be increased. There are two types of halfway houses. Community correctional centres are owned by CSC and are considered minimum security institutions. Community based residential facilities are owned by organizations such as the John Howard Society and The Salvation Army. Community correctional centres provide structured and intervention-centred living environments for offenders on release to the community; they accommodate offenders who, by virtue of their profile or circumstances related to higher levels of risk or need, are unable to secure other appropriate accommodations to facilitate a safe and structured return to the community. Neither type of halfway house provides 24/7 supervision.

Ontario Ministry of the Solicitor General Evidence

77Carrie Fitzpatrick, an employee of the Ontario Ministry of the Solicitor General, testified for the purpose of providing the court with information about the jails, detention centres, and correctional centres operated by the provincial ministry, including the classification and assessment process and the programming offered. The length of an offender’s sentence is one factor that will dictate whether the offender is placed in a treatment centre such as the Ontario Correctional Institute or the St. Lawrence Valley Correctional Institute: an offender must have at least 9 months remaining on his sentence in order to be placed in a treatment facility so that there is sufficient time for him to complete the programming.

78For those offenders who do not go to treatment centres, core programming is offered. Ms. Fitzpatrick testified that a high number of offenders who are mentally ill are not sent to treatment centres. They do not receive special programming. They are offered the core programming and have access to medical and social work staff supports.

Dr. Gray’s Evidence

79Dr. Jonathan Gray is the court-appointed psychiatrist who performed the s. 752.1 assessment. In addition to the s. 752.1 assessment, in February 2018, Dr. Gray prepared a sexual behaviours assessment of R.M.P. under s. 21 of the Mental Health Act.

Diagnoses

80In Dr. Gray’s opinion, R.M.P. suffers from schizophrenia; R.M.P. has had this diagnosis since he was a teenager. Dr. Gray noted that R.M.P. has been documented to display paranoid delusions, auditory hallucinations, and, at times, somewhat disorganized speech. Dr. Gray observed that while it was possible that R.M.P.’s symptoms might have been amplified or partially caused by his persistent abuse of recreational drugs, there were periods of times, including when he was in custody, when R.M.P. continued to manifest sufficient symptoms to meet the criteria for a diagnosis of schizophrenia, despite his not having access to recreational drugs. Dr. Gray testified that schizophrenia is a life-long illness. As a patient gets older, they become more used to having voices in the background and some of the behaviours tend to attenuate once the patient reaches their 50s.

81On cross-examination, Dr. Gray agreed that in the six to nine months leading up to the predicate offences, a “what not to do scenario” treatment scenario was created: R.M.P. was removed from antipsychotic medication, and he was given ADHD medication that might have exacerbated his schizophrenia symptoms, acted as a “gateway” drug to other drugs of abuse, and led to R.M.P.’s abuse of other drugs during this period.

82Dr. Gray opined that there is little evidence that R.M.P. suffers from sexual sadism disorder or any other paraphilic disorder. R.M.P.’s sexual crimes were, in Dr. Gray’s opinion, likely motivated by opportunity and facilitated by R.M.P.’s concurrent use of substances which caused him to act in a more disinhibited fashion.

83Dr. Gray observed that R.M.P. also manifests many symptoms of substance use disorder, including misuse of alcohol, cocaine, and methamphetamines. In the past, R.M.P. has spent excessive amounts of time acquiring and using these substances and their use has caused R.M.P. problems in his interpersonal functioning and medical problems, including seizures caused by mixing cocaine with stimulants and withdrawal effects. Dr. Gray testified that based on his clinical experience, a substance use disorder relating primarily to alcohol will remain a factor throughout the patient’s life. A substance use disorder relating to hard drugs may attenuate somewhat once the patient is in their 50s or 60s.

84As Dr. Gray explained, alcohol acts as a disinhibiting agent, and leads R.M.P. to more disorganized thinking and increased impulsivity, especially when he is not taking his prescribed medications. Marijuana could exacerbate some of the underlying delusions, disinhibit behaviour, and also interfere with the effectiveness of antipsychotic medications. Crack cocaine and crystal methamphetamine increase anger and impulsivity. In Dr. Gray’s opinion, R.M.P. has very little insight into the connection between his substance use and his offending behaviour. Dr. Gray is of the view that if R.M.P. were in the community and began abusing crack cocaine or crystal methamphetamine, a decline in his clinical picture would begin the same day and R.M.P. would quickly become non-compliant with his release conditions. The use of drugs and alcohol by R.M.P. would make it more difficult for him to access any coping skills learned in any rehabilitative treatment programs.

85Dr. Gray testified about the dangers associated with R.M.P. taking other people’s prescription medications. Those dangers include: the medication taken may not have been intended to treat R.M.P.’s symptoms and may exacerbate his symptoms; the medication taken may be contraindicated with his prescribed medications; and R.M.P. could overdose on medication that was not prescribed for him.

Assessment of Risk

86Dr. Gray testified that R.M.P. has been the most stable when he has been prescribed the antipsychotic Clozapine. He noted that in the 2007-2009 time period, and as recently as 2013, R.M.P. requested an increase in his antipsychotic medications because of an increase in his psychotic symptoms. Dr. Gray observed that when R.M.P. was taking his antipsychotic medications consistently, he worked well with his treatment team, was generally polite, and was forthcoming about substance abuse. He was more willing to engage in programs. Dr. Gray noted that in the 2008 to 2012 period, a period when R.M.P. was compliant with his antipsychotic medications R.M.P., was “even offence free.”

87In Dr. Gray’s opinion, R.M.P.’s risk of recidivism is very high as estimated by actuarial risk assessment instruments. As stated by Dr. Gray, the risk assessment instruments produce information to help estimate an offender’s risk of violent or sexual reoffence of any kind. They do not, however, give specific information regarding the imminence, type, or severity of a potential reoffence.

88The Psychopathy Checklist-Revised (“PCL-R”) is a risk assessment instrument designed to compare the subject against the psychological construct of psychopathy which consists of interpersonal, affective, and antisocial lifestyle factors. Psychopathy is defined diagnostically as being evidenced by a score of 30 or above out of 40. Higher scores, especially scores of 25 or more, are associated with a higher risk of violent, sexual, or general reoffence and a poor response to treatment. R.M.P. scored 25 on the PCL-R, placing him at the 62.1 percentile of male prison inmates in the PCL-R standardization sample.

89The Static-2002R is a standardized actuarial risk assessment instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. The Static-2002R produces estimates of relative risk based on the number of risk factors present in any one individual, with the risk factors being grouped into five domains: age, persistence of sexual offending, deviant sexual interests, relationship to victims, and general criminality. On the Static-2002R, R.M.P. received a score of 6, the fourth highest of five ascending risk categories for sexual and violent reoffence at an above average risk. R.M.P.’s relative risk of sexual or violent reoffence would be at the 88.3 percentile, meaning that approximately 11.7 per cent of Canadian sexual offenders would be at a higher risk of reoffending than R.M.P. Approximately 19.2 per cent of sexual offenders with a score of 6 on the Static-2002R reoffend with another violent or sexual offence within five years.

90The Violence Risk Appraisal Guide-Revised (“VRAG-R”) is used to assist in risk prediction relating to violent offenders through identification of specific static or historical factors in the offender. R.M.P.’s score on the VRAG was +39, placing him in the highest of 9 ascending risk categories, with a very high risk of reoffending violently. In the study sample, 76 per cent of offenders in the highest risk category reoffended with another violent or sexually violent offence within five years of their release into the community, and 90 per cent of those in the same risk category reoffended within 15 years of release from incarceration.

91In contrast with the strict actuarial risk instruments which consider only static (that is, unchanging, historical) factors, the Historical, Clinical and Risk Management-20 (“HCR-20”), version 3 assesses both static and dynamic factors associated with future risk of violence. The HCR-20, version 3 is specifically focused on risk assessment in a population with mental illness. In Dr. Gray’s opinion, because R.M.P. shows evidence of all 20 items on the HCR-20, version 3, his actuarial average to high risk of violence in the future has a low potential to be mitigated and managed through interventions. According to Dr. Gray, given that R.M.P. suffers from a serious mental illness, the HCR-20 is “especially relevant and may help supplement the Static-2002R to identify target areas that would require management in terms of future risk of violence.”

92Dr. Gray opined that “[o]verall, there is a high likelihood that [R.M.P.] will reoffend if he is released into the community.” Based on his clinical judgment, Dr. Gray’s opinion is that R.M.P. is much more likely to commit a simple assault, theft, or property offence, rather than a more serious sexual offence or aggravated assault given the frequency of the former on his criminal record compared to the latter. In Dr. Gray’s opinion, under intense supervision, R.M.P. would quickly violate the “technical terms” of his release order before getting to the stage where he would commit a serious personal injury offence against another individual. On cross-examination, Dr. Gray agreed that he would expect that as R.M.P. reaches his 50s and beyond, his general rate of violent recidivism would decline.

Intractability

93Dr. Gray opined that R.M.P.’s behaviour is intractable for the following reasons: R.M.P. has spent almost all of his adult life either in jail or on probation; all of R.M.P.’s offences were committed in the context of substance abuse; most of R.M.P.’s offences were committed in the context of a lack of compliance with prescribed medications for his underlying psychiatric illness; R.M.P. has gone through several substance abuse treatment programs with no long-term success; R.M.P.’s schizophrenia has been very resistant to treatment even when he has been compliant with medications and it has been difficult to find medications that work well to control his symptoms; and R.M.P.’s diagnosis of schizophrenia and his substance use issues have, historically, been highly resistant to treatment, and the prognosis for both of these conditions being treated successfully in the future is quite poor.

Expectation of Control of Risk in the Community

94Dr. Gray opined that it would be “a very good idea” for R.M.P. to be on an antipsychotic medication. Although R.M.P. was adamant in both his interviews that he, R.M.P., is not willing to take antipsychotic medications because he believes they cause his psychotic symptoms, Dr. Gray left open the possibility that R.M.P. might change his mind because he has done so in the past. Antipsychotics would be a cornerstone of any treatment plan for R.M.P.

95In Dr. Gray’s opinion, management of R.M.P.’s risk to the community would be dependent on replicating the circumstances and supports that existed for R.M.P. in the 2006 to 2012 time period, which Dr. Gray described as a “modest period of success.” Dr. Gray opined that with certain measures put in place, there is a reasonable expectation of eventual control of R.M.P.’s high risk of sexual or serious violent reoffence in the community, but that R.M.P. is very likely to violate the terms of his release within one to two years. Dr. Gray suggested the following measures be implemented as terms of release:

Intense supervision through a probation officer with weekly meetings. Random urine screens should be implemented to ensure against relapses.
Continuation in a substance abuse program and an after-care maintenance program to reiterate strategies to maintain sobriety. Abstention from alcohol and recreational drugs.
Involvement with an intensive community treatment team such as the ACTT.
Residence for a period of time in a 24-hour supervised group home or half-way house with a curfew. Dr. Gray opined that given the fragility of his mental illness and other risk factors, R.M.P. may always require some sort of supervised living situation.

Dr. Pallandi’s Evidence

96Dr. Pallandi examined R.M.P. on November 8, 2019.

Diagnoses

97Dr. Pallandi agreed with Dr. Gray’s diagnoses for R.M.P.: schizophrenia and a substance use disorder – principally alcohol and cocaine. In his report, Dr. Pallandi described the history of major mental illness in R.M.P.’s immediate family as “significant and relevant.”

98Dr. Pallandi observed that over the years, making a clear diagnosis regarding R.M.P’s mental health has been obfuscated by his concomitant use of street drugs and alcohol, questionable self-reporting, and limited co-operation in taking his own medications, in not taking the medications of others, in attending for treatment, and in not using street drugs or alcohol. Dr. Pallandi testified that when R.M.P. was compliant with his antipsychotic medication and “things were not confounded too much by unchecked drug use”, the antipsychotic medications seem to have had a beneficial effect on him.

Assessment of Risk and Intractability

99Dr. Pallandi did not take issue with Dr. Gray’s choice of assessment tools or the resultant scores. Dr. Pallandi agreed with Dr. Gray’s assessment that R.M.P. is much more likely to commit a simple assault, theft, or property offence, rather than a serious sexual offence or aggravated assault. Dr. Pallandi emphasized the gaps in R.M.P.’s problematic behaviour, the gap between the sexual offence against C.S.D. and the predicate offences, and the “apparent improved manageability when [R.M.P.] has been subject to a comprehensive and multifactorial management plan.”

Expectation of Control of Risk in the Community

100In his testimony, Dr. Pallandi noted that there are now three-month preparations of antipsychotics available. Dr. Pallandi described R.M.P.’s view that antipsychotic medications have caused his problems as “an obstacle to be overcome”, noting that holding such a view is not unique among individuals with major mental illness, and, in particular, schizophrenia.

101Dr. Pallandi described substance use disorders as chronic and relapsing and remitting in nature. The treatments for substance use disorders are directed towards long-term management.

102Dr. Pallandi agreed with all the elements of the management plan recommended by Dr. Gray. In addition, Dr. Pallandi recommended that reciprocal consents be signed by all professionals and associates involved in R.M.P.’s supervision.

Analysis

The Dangerous Offender Statutory Regime

103The dangerous offender and long-term offender provisions of the Criminal Code are set out in Part XXIV. In R. v. Boutilier, the Supreme Court of Canada described the dangerous offender regime as a two-stage process: the first or designation stage being a consideration of whether the offender meets the criteria under s. 753(1) for designation as a dangerous offender, and the second or penalty stage involving a determination of what penalty to impose under ss. 753(4) and (4.1).³

104In determining whether an offender meets the criteria for designation as a dangerous offender, the first step is to consider whether the offender has committed a “serious personal injury offence” as defined in s. 752 of the Code. The predicate offences of sexual assault committed by R.M.P. are defined as serious personal injury offences. There is no issue that this requirement has been met.

105The next step of the designation stage is to determine under s. 753(1) whether the offender “constitutes a threat to the life, safety or physical or mental well-being of other persons” based on evidence establishing one of four criteria. In broad terms, the four criteria for designation are: (i) a pattern of repetitive behaviour; (ii) a pattern of persistent aggressive behaviour; (iii) brutality; or (iv) failure to control sexual impulses. The relevant provisions of the Criminal Code state:

s. 753(1)(a)(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,

s. 753(1)(a)(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

s. 753(1)(a)(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

s. 753(1)(b): 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.

106The provisions are disjunctive: if one of the four criteria has been met, the court must designate the offender a dangerous offender: Boutilier.⁴ The burden rests on the Crown to establish the dangerous offender criteria beyond a reasonable doubt: R. v. Medford.⁵

107In R.M.P.’s case, the Crown relies on the pattern of repetitive behaviour, the pattern of persistent aggressive behaviour, and the failure to control sexual impulses criteria.

108Sections 753(4) and (4.1) relate to the sentencing of a dangerous offender:

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period,

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

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

109Under s. 753(4.1), the judge must impose an indeterminate sentence unless there is a reasonable expectation that a lesser measure under s. 753(4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence: Boutilier; R. v. Spilman.⁶

110Section 753(5) provides that if the court does not find an offender to be a dangerous offender, the court may treat the application as a long-term offender application.

111In Boutilier, the Supreme Court of Canada affirmed its conclusions in R. v. Lyons that s. 753(1) requires four criteria be met for the dangerous offender designation: (i) the offender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (ii) evidence of a broader pattern of violence of which the predicate offence is part; (iii) a high likelihood of harmful recidivism; and (iv) a requirement that the pattern of conduct is substantially or pathologically intractable.⁷ The last two of these four criteria are forward looking, the issue being the future risk represented by the offender. As La Forest J. explained in Lyons,

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. 687 [now s. 753(1)] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable.⁸

112As the Supreme Court stated in Boutilier, “[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.”⁹

113Intractable conduct means “behaviour that the offender is unable to surmount”: Boutilier.¹⁰ Rather than merely looking at whether the offender’s conduct has been intractable in the past, the sentencing judge must assess the matter prospectively, and be satisfied that the conduct will be intractable into the future: Medford.¹¹

114The “likelihood” analysis under s. 753(1)(a)(i) and (b) was well-described by Code J. in R. v. Gibson as follows:¹²

The one difficult issue, in relation to the s. 753(1)(a) and (b) statutory tests, is whether the requisite “likelihood” of re-offending in the future has been established. Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 “likelihood” test is subtle. The ordinary dictionary meaning of the word “likelihood”, as well as its normal legal usage, is “probability”, that is, something more than mere “possibility”... When applying this meaning to the “likelihood” test found in s. 753, the courts have stressed that it refers to probable “risk” or “potential for harm”, as a present fact, rather than to proof of a future event which would be an impossibility.

The Use of Psychiatric Evidence on a Dangerous Offender Application

115In Medford, Molloy J. described the use of psychiatric evidence on a dangerous or long-term offender application in the following terms which I adopt:

Expert psychiatric evidence is of invaluable assistance to the sentencing judge in making decisions under the dangerous and long-term offender provisions of the Criminal Code. Indeed, at the initiation of the process, an assessment by a psychiatrist is mandated. However, ultimately the decision as to whether the criteria have been met, and whether the designation should be made, rests with the trial judge. If the psychiatrist expresses an opinion one way or the other on any of the criteria (e.g. degree of future risk), that opinion is not binding on the trial judge.¹³

116It is for the sentencing judge, not psychiatrists, to determine if the pattern of behaviour exists: R. v. Walsh.¹⁴ It follows that if the psychiatrist expresses an opinion on whether the offender’s behaviour is intractable, that opinion is also not binding on the trial judge.

A Pattern of Repetitive Behaviour – Section 753(1)(a)(i)

117In R. v. Hogg,¹⁵ the Court of Appeal for Ontario addressed what is meant by the pattern of repetitive behaviour in s. 753(1)(a)(i), citing the Court of Appeal for British Columbia’s decision in R. v. Dow:¹⁶

[21] The elements of subpara.(i) of para.753(a) are: (1) that there be a pattern of repetitive behaviour revealed in the offences and that the pattern be present in the offence which gave rise to the dangerous offender proceeding; and (2) that the pattern of repetitive behaviour contained two essential elements: first, a failure to restrain the relevant repetitive behaviour and, second, a likelihood of causing death or injury through a failure to restrain that behaviour in the future.

[24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.

[25] I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place....

[26] It follows from what I have said that I think that the sentencing judge erred in law when he said that it was a necessary part of the pattern in this case that the victim in every incident must have been “identified by Mr. Dow for the purposes of venting his rage against a person of the female gender”. It is sufficient that all the victims were female and were violently assaulted in generally similar circumstances. The fact that in the most recent incident the victim was not sexually penetrated is not a distinction which destroys the pattern, just as the fact that Dow knew M.V. before he raped her does not destroy the pattern which covers all the other incidents in which the person assaulted was unknown.¹⁷

118The pattern and the predicate offence must be related. As the Court of Appeal for British Columbia Court observed in R. v. Pike, “[i]t would be inconsistent and unfair if the ultimate threat determination were to be made on the basis of a perceived threat unrelated to either the predicate offence or the pattern of behaviour it reveals as still persisting.”¹⁸

119Where the pattern relied on consists of only two offences, “remarkable similarity” will be required; fewer “exact similarities” are needed where there are more offences relied upon to establish the pattern: R. v. Jones.¹⁹ The pattern of repetitive behaviour that includes the predicate offence must, however, contain enough of the same elements of the unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future: Hogg.²⁰ In R. v. Neve, the Court of Appeal of Alberta confirmed that in assessing whether the pattern threshold has been crossed (under s. 753(a)(i) or (ii)), the sentencing judge must be alive to the strict requirements of the Criminal Code and whether the proscribed pattern has been proven.²¹

120The Crown submits that R.M.P. has exhibited two patterns of repetitive behaviour that show a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on another person through failure in the future to restrain his behaviour. The first alleged pattern is based on R.M.P.’s three sexual assault convictions. The second alleged pattern is described by the Crown as a “broader pattern of repetitive violence” of which his sexual offending forms a part.

(i) The Sexual Assaults

121The Crown summarized the similarities between the two sets of offences for sexual assault as follows: “[o]n two occasions, while intoxicated, [R.M.P.] has sexually assaulted women, in the company of other women. He has targeted vulnerable women who were confined to small spaces or otherwise immobilized.” The Crown submits that the similarities are compelling and numerous, and that the common factor behind R.M.P.’s offending is his disinhibition and lack of impulse control resulting from his poorly managed mental illness and substance abuse.

122I do not agree that R.M.P.’s sexual offending establishes a pattern of repetitive behaviour within the meaning of s. 753(1)(a)(i). The circumstances of the sexual assault on C.S.D. were very different than those of the sexual assaults on C.S. and K.H. The sexual assault on C.S.D. occurred in the lobby of an apartment building; C.S.D. was a bystander who confronted R.M.P. By contrast, C.S. and K.H. were acquaintances of R.M.P. and they invited him over to their apartment where the sexual assaults took place. C.S.D. was pressed against a bench when R.M.P. grabbed her breast and her groin area. She was then able to walk away. C.S. and K.H. were immobilized when R.M.P. sexually assaulted them.

123The sexual assaults were vastly different in nature. Without diminishing what happened to C.S.D., the sexual assault on her was limited to grabbing her breast and groin area. The assault on C.S. involved digital penetration and the sexual assault on K.H. consisted of sexual intercourse without a condom. While I have evidence in the form of victim impact statements of the psychological effects of the sexual assaults on C.S. and K.H., I have no evidence of the extent of the psychological harm inflicted on C.S.D.

124It is also significant to the analysis that the two incidents are separated by approximately nine and a half years.

125The common factor of alcohol and its disinhibiting effect on R.M.P. is insufficient. Based on the differences in circumstances, the differences in the nature of the sexual assaults, and the long period of time separating the incidents, I do not find that the two incidents share the high degree of similarity required to be able to predict that R.M.P. will likely offend in the same way in the future.

(ii) Violent Behaviour

126Does the evidence establish a broader pattern of repetitive violent behaviour?

127The Crown relies on R.M.P.’s criminal record and his numerous convictions for violent offences. The Crown acknowledges that it may be difficult to predict when R.M.P. will reoffend or how much violence he will inflict, but submits that his personal traits, his history of violence, and his vulnerability to substance use and lack of co-operation with treatment for his mental illness intensify his future risk of causing harm.

128R.M.P. has a lengthy record of convictions for offences of violence. The question is whether there is a pattern of behaviour (including the predicate offences) that contains enough of the same elements of unrestrained dangerous conduct to be able to predict that R.M.P. will likely offend in the same way in the future. I acknowledge that it is not necessary that the past conduct have led to actual injury, and that attempted serious violence and likely serious endangerment of life, safety, or physical well-being or severe psychological harm may be adequate to meet the test under s. 753(1)(a)(i).²² It bears repeating, however, that the “likelihood” required under s. 753(1)(a)(i) is a “likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons.” These words underscore the requirement that the violence or endangerment – actual or attempted – be serious in nature.

129I find no such pattern of repetitive behaviour in R.M.P.’s criminal history. A review of his criminal record discloses the opposite: the nature of his offending is unpredictable and, in much of his offending, there is an absence of actual violence or attempted serious violence to other persons.

130R.M.P.’s convictions in February 1998 for mischief and possession of an air rifle did not involve attempted serious violence to other persons. There was no violence in the attempted robbery in 1998: R.M.P. did not have a gun. The same is true of the June 1999 robbery. R.M.P. passed a note to the clerk indicating that he had a gun – even though he did not – and demanding that the clerk turn over the money. When the clerk placed the cash on the counter, R.M.P. and his accomplice fled on foot with the money and the cigarettes.

131The incident resulting in the 1999 convictions for break and enter and fraud under $5,000 did not involve serious violence against another person. R.M.P. broke into the apartment while the resident was in the lobby downstairs. When the resident returned to his apartment, he saw R.M.P. leaving and chased him on foot. In the fight with R.M.P. that followed, the resident suffered a “transient” injury to his forehead. R.M.P.’s conviction for shoplifting in March 2002 did not involve violence.

132During the incidents in June and July 2005, R.M.P. acted violently toward C.M. and his father. While no serious injuries were sustained, R.M.P. threatened them with a knife. R.M.P. also engaged in violence during the incident involving G.U. and C.S.D. in January 2006. He bit G.U. and groped C.S.D. He threatened a police officer. Apart from the predicate offences, these incidents are the most serious in R.M.P.’s criminal history.

133In 2007 and 2008, R.M.P. pleaded guilty to, and was convicted of, failures to comply with the terms of his probation. These breaches were largely the result of R.M.P.’s failure to attend appointments. There was no violence directed at individuals involved. Following the break and enter into the LCBO, R.M.P. spit on a paramedic. This is not, in my view, violent behaviour of the nature contemplated by s. 753(1)(a)(i). I reach the same conclusion regarding the assault on C.M. in 2014 where R.M.P.’s violent behaviour was limited to squeezing C.M.’s hands in a painful manner.

134In the end, the court is left with the June and July 2005 domestic incidents, the January 2006 incident, and the predicate offences which occurred in July 2015. As I have discussed, the January 2006 incident was dissimilar to the sexual assaults on K.H. and C.S. in July 2015. The domestic incidents bear no similarity to the other incidents. I am unable to conclude from R.M.P.’s offending behaviour in these incidents that he is likely to offend in the same way in the future.

135The evidence of Drs. Gray and Pallandi supports this conclusion. The pattern of future behaviour foreseen by Dr. Gray is the same as that reflected by R.M.P.’s past behaviour: Dr. Gray opined that from a violence point of view, R.M.P. would do well on a probation order with the “right measures” but would struggle from time to time with the conditions themselves. Dr. Gray fairly observed that the risk assessment instruments produce information to help estimate an offender’s risk of violent or sexual reoffence of any kind, but they do not provide specific information regarding the imminence, type, or severity of a potential reoffence. Drs. Gray and Pallandi agree that R.M.P. is more likely in the future to commit a simple assault, theft, or property offence, rather than a serious sexual offence or aggravated assault. I disagree with the Crown’s submission that there was no basis upon which to predict that R.M.P.’s future reoffending would be relatively minor in nature. In any event, it is for the Crown to establish the repetitive pattern that is predictive of the likelihood of future dangerous behaviour.

136The assessment of prospective risk is concerned with whether an offender will continue to be “a real and present danger”, unable to surmount his violent conduct: Boutilier.²³ I have also taken into account the evidence of Drs. Gray and Pallandi regarding R.M.P.’s future treatment prospects. Both experts agree that an antipsychotic medication would be a cornerstone of a treatment plan for R.M.P. Dr. Gray remarked on R.M.P.’s modest success when he was compliant with his medications. While the Crown submits that R.M.P.’s past behaviour and non-compliance with court orders evidences an inability to surmount his mental illness and his substance use disorder, R.M.P. has, in the past, shown “modest success” when he was compliant with his antipsychotic medications.

137I distinguish the case before me from that before the court in R. v. A.N.²⁴ The court in A.N. concluded, based on the actuarial studies, A.N.’s propensity for reoffending immediately following release, and the psychiatric assessments, that A.N. was likely to reoffend following his release and likely to cause serious psychological harm if he were to reoffend. The court identified A.N.’s “pattern of robbing banks” while masked, indicating the presence of a gun, and using serious threats of violence. A.N. had physically injured a victim in a robbery and twice threatened robbery victims with a knife. The court also described A.N.’s history of aggression and violence in institutions as serious. There is no comparable pattern in R.M.P.’s past offending behaviour and the psychiatric evidence does not support a finding that R.M.P. would likely reoffend violently.

138The Crown also referred me to the recent decision in R. v. Rouschop.²⁵ In Rouschop, the court found that four patterns of repetitive violent behaviour and a persistent pattern of aggressive behaviour within the meaning of s. 753(1)(a)(i) and (ii), respectively, had been established. I observe only that Mr. Rouschop’s past offending behaviour was vastly different in nature and extent than that of R.M.P. Unlike R.M.P., Mr. Rouschop conceded that the criteria under s. 753(1)(a) had been met.²⁶

139The Crown has not established the predictive pattern of behaviour required under s. 753(1)(a)(i).

A Pattern of Persistent Aggressive Behaviour – Section 753(1)(a)(ii)

140Section 753(1)(a)(ii) requires a pattern of persistent aggressive behaviour by the offender (of which the predicate offence forms a part), and the pattern must show a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences of his behaviour on other persons. The persistence required under s. 753(1)(a)(ii) involves behaviour that is “enduring, continuous, obstinately persevering, interminable or sustained”: R. v. Williams.²⁷ In R. v. McArthur, LaForme J., as he then was, equated aggressive with hostile under s. 753(1)(a)(ii).²⁸

141In R. v. George, the Court of Appeal for British Columbia described the indifference requirement as follows: ²⁹

[If] indifference is to be determined only at the time of offence, the outcome will almost always be a foregone conclusion. An offender rarely measures the moral quality of his or her act at the time of a personal injury offence. In my view the attitude of the offender must be examined more broadly in order to fulfil what I take to be Parliament's intention; namely, to identify the truly evil personality type who has no compassion for others at any time.

142In Williams, the court equated “indifference” with notions of disregard, lack of sympathy or empathy, callousness and coldness, and lack of concern or sensitivity.³⁰

143The Crown’s position is that R.M.P.’s convictions for sexual assault (three), robbery, attempted robbery, assault (five), assault with a weapon (three), and uttering threats to cause death or bodily harm (three) establish a pattern of persistent aggressive behaviour showing a substantial degree of indifference to others.

144I do not propose to repeat my previous comments with regard to the unpredictable nature and extent of R.M.P.’s past offending behaviour. Accepting that more of R.M.P.’s offending behaviour can be characterized as aggressive rather than seriously violent, there still remain periods of time – most significantly, from mid-2006 to 2012 – when R.M.P. did not reoffend except for breaches of his probation. Significantly, R.M.P. was compliant with his antipsychotic medications during these same periods. I am not satisfied that R.M.P.’s past criminal behaviour meets the definition of “persistent” as described in Williams: it has not been “continuous”, nor has it been “obstinately persevering.”

145I am also not satisfied that “substantial indifference” within the meaning of that term as explained in George has been established. R.M.P. pleaded guilty to many of the offences with which he was charged. In the pre-sentence report obtained for the sentencing in relation to the incidents in June and July 2005 and January 2006, the probation officer noted that R.M.P. “recognize[d] that the events that occurred should not have happened and stated he would apologize to his victims if given the opportunity.” With regard to these same incidents, Dr. Gray noted in his report that R.M.P. admitted to having an argument with C.M., grabbing her and holding a cigarette close to her eye. He acknowledged to Dr. Gray that he was trying to scare C.M. R.M.P. told Dr. Gray that at the time, “[he] wasn’t doing well. I was walking the street and not sleeping. I was using a lot of crack.” R.M.P. apologized to the court in connection with the 2014 assault on C.M. On several occasions, he expressed to the court a desire to change, and referenced his children. He was reportedly “forthcoming and cooperative” during his second interview with Dr. Gray. I find that these behaviours are inconsistent with notions of callousness or coldness. In the words of the Court of Appeal for British Columbia, they are not behaviours that would serve “to identify the truly evil personality type who has no compassion for others at any time”: George.³¹

146The Crown has not established the pattern of behaviour required under s. 753(1)(a)(ii).

Failure to Control Sexual Impulses – Section 753(1)(b)

147To find an offender to be a dangerous offender under s. 753(1)(b), the court must be satisfied that the offender, by his conduct in any sexual matter including the predicate offence, has shown a failure to control his sexual impulses and a future likelihood of causing injury, pain or other evil to other persons through the failure to control his sexual impulses.

148In its ordinary meaning, “likelihood” means more probable than not. Therefore, as used in s. 753(1)(b), likelihood connotes a degree of risk rising to at least a probability – that is, a risk that is more likely than not: R. v. C.G.³² R.M.P. has been convicted of three sexual assaults; however, the evidence does not establish the requisite degree of risk. As I have discussed, the nature of the sexual assault on C.S.D. was very different than the predicate offences and it occurred nine and half years prior. I have also placed considerable weight on the psychiatric evidence. Based on R.M.P.’s score as measured on the Static-2002R – the measure designed to assist in the prediction of sexual and violent recidivism for sexual offenders – there is a 19 per cent risk of his reoffending with another violent or sexual offence within five years. This does not rise to the level that there is a “likelihood” of risk.

Conclusion on Dangerous Offender Designation

149For these reasons, I find that the Crown has failed to establish that R.M.P. meets the dangerous offender criteria as confirmed by the Supreme Court of Canada in Boutilier.

The Long-Term Offender Provisions

150In accordance with s. 753(5) of the Criminal Code, I have concluded that it is appropriate to treat this application as an application under s. 753.1.

151Under s. 753.1(1), the court may find an offender to be a long-term offender if the court is satisfied that,

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

152Section 753.1(3) provides that if the court finds an offender to be a long-term offender, the court shall,

(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and

(b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

153In R. v. L.M., LeBel J. stated that where a long-term offender application is made, “Parliament intended that the judge determine the appropriate sentence first.”³³ Section 753.1(3) establishes a minimum sentence from which pre-sentence custody can be deducted: R. v. Hall.³⁴ In this case, there is no suggestion that it would be appropriate to impose a sentence (before taking into account pre-sentence custody) of less than two years on R.M.P. for the predicate offences. I therefore consider the long-term offender application first.

Substantial Risk of Reoffending

154The risk of reoffending in s. 753.1(1)(b) must be a risk of violent reoffending: R. v. Piapot.³⁵ The degree of risk of the future conduct must be “substantial.” “Substantial” connotes a lesser degree of certainty than the phrase “likelihood”, the term used in s. 753(1)(a)(i) and s. 753(1)(b).³⁶ In Boutilier, the Supreme Court of Canada contrasted the dangerous offender designation criteria with the criteria for finding an offender to be a long-term offender:

Undoubtedly, the dangerous offender designation criteria are more onerous than the long-term offender criteria. In particular, under s. 753(1), the sentencing judge must be satisfied that “the offender constitutes a threat to the life, safety or physical or mental well-being of other persons”, whereas under s. 753.1, the sentencing judge must merely be satisfied that “there is a substantial risk that the offender will reoffend.”³⁷

155I am satisfied that the evidence I have already discussed establishes a substantial risk that R.M.P. will reoffend in the future. Dr. Gray opined that R.M.P.’s risk of recidivism is “very high” as estimated by actuarial risk assessment instruments. Dr. Pallandi agreed with Dr. Gray’s risk assessment and conclusions based on actuarial and clinical factors.

Reasonable Possibility of Eventual Control of the Risk in the Community

156To achieve the goal of protection of the public under both the dangerous offender and the long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the offender can be treated within a definite period of time: R. v. McCallum;³⁸ R. v. Poutsoungas;³⁹ and R. v. Higginbottom.⁴⁰

157A “reasonable possibility” is more than a vague hope of managing the risk in the community: R. v. Allen.⁴¹ I contrast the “reasonable possibility” standard with the “reasonable expectation” standard used in s. 753(4.1). Prior to 2008, the court had discretion over whether to designate an offender a dangerous offender even if the statutory criteria were met. Under the prior scheme, the court had to consider whether the individual could, instead, be designated a long-term offender, which required that there be a “reasonable possibility” of eventual control of the risk in the community.⁴² In R. v. Osborne,⁴³ the Manitoba Court of Appeal held that the “reasonable expectation” language in s. 753(4.1) imposes a different and higher standard than the former “reasonable possibility” standard.⁴⁴ The Court described a reasonable possibility as a belief that something may happen; by contrast, a reasonable expectation consists of a belief that something will happen.⁴⁵ I agree with and adopt this distinction in interpreting the “reasonable possibility” language used in s. 753.1(1)(b). The dangerous offender provisions are designed to protect the public from those offenders determined to be dangerous, while the long-term offender provisions aim to protect the public from offenders who are at substantial risk to reoffend violently.

158It is not necessary that the evidence disclose there is no risk whatsoever to the public, nor does the evidence have to indicate that the offender will be cured; rather, the evidence must disclose that the offender can be meaningfully treated so the offender’s risk to the public can be controlled at an acceptable level: R. v. Farouk.⁴⁶ “These articulations of the relevant risk management inquiry contemplate the present, rather than the future, existence of measures sufficient to control risk”: R. v. Little.⁴⁷

159I am satisfied on the evidence that R.M.P. can be meaningfully treated so that his risk to the public can be controlled at an acceptable level.

160Drs. Gray and Pallandi agree that antipsychotic medications would be the cornerstone of any treatment and management of risk plan for R.M.P. Dr. Pallandi testified about the availability of three-month preparations of antipsychotics that could address compliance concerns. The evidence is that R.M.P. was the most stable when compliant with the antipsychotic Clozapine. His criminal history bears this out as R.M.P. enjoyed an offence-free period in the 2008 to 2012 time period. By contrast, in the period leading up to the predicate offences, R.M.P. was prescribed an ADHD medication that, in the opinion of Dr. Gray, may have exacerbated his schizophrenia symptoms and acted as a gateway drug to R.M.P.’s use of street drugs.

161When R.M.P. was compliant with his antipsychotic medications, he worked well with his treatment team and was more willing to engage in treatment programs. The supervision evidence confirms that although he had occasional relapses, R.M.P. was able to complete his probation satisfactorily when he remained compliant with his treatment regime.

162Although to Dr. Gray R.M.P. was adamant in his refusal to take antipsychotics, when asked by Dr. Pallandi what strategies he was prepared to employ to mitigate risk should he be released to the community,

[R.M.P.] quite rationally and appropriately agreed that he should resume follow-up with an ACTT; that he would be able to comply with the terms of a probation order; that he would be agreeable to take medications; that he would reside at a group home; that he would reinstitute support from ODSP; that he would be agreeable to a drug treatment program and urinary screening and that he would remain in Ottawa to do so.

163I note that by the time R.M.P. was interviewed by Dr. Pallandi in November 2019, he had been in pre-sentence custody for many months with no access to street drugs or alcohol. There have been at least two occasions in the past when R.M.P. requested antipsychotic medication, leading Dr. Gray to leave open the possibility that R.M.P. might consent to do so in the future.

164The Parole Board of Canada’s ability to impose treatment requirements as part of a long-term supervision order was discussed by the Court of Appeal for Ontario in R. v. Grayer.⁴⁸ The Court in Grayer adopted the views expressed by Hill J. in R. v. Payne:⁴⁹

[A]n offender on conditional release by way of a long-term supervision order may be compelled by a term of the order to undertake treatment and related pharmaceutical intervention where essential to management of the accused’s risk of re-offending. In other word[s], the offender’s consent to such a condition is not required. Should the offender breach terms of the order respecting treatment or medication, he or she is subject to apprehension with suspension of the order pursuant to s. 135.1 of the Act or to arrest and prosecution pursuant to s.753.3(1) of the Code. The entire object of the long-term offender regime would be undermined by providing the offender the ability to defeat risk management. Accordingly, mandatory treatment and medication conditions in an order are a proportionate response to protecting the public from a person who, by definition, is a substantial risk to reoffend.⁵⁰

165Long-term offender orders are concerned with the management of risk and the protection of the public. The Parole Board of Canada has the authority to order R.M.P. to comply with his treating psychiatrist’s recommendations, which may include prescribing antipsychotic medications. Any failure by R.M.P. to abide by these recommendations may be considered a breach of the long-term supervision order and can result in incarceration of up to 10 years under s. 753.3 and the suspension of the long-term supervision order under s. 753.4 of the Criminal Code.

166I have taken into account Ms. Maahs’ testimony about the ICPM available for the treatment of offenders in federal institutions and in particular, her evidence that offenders with mental health issues would be specifically supported in the ICPM, and her testimony about the extensive substance abuse programming available in the federal correctional system. R.M.P. expressed to Dr. Gray a willingness to attend substance abuse programming. To both experts, he acknowledged a link between his substance abuse and his offending behaviour.

167As the Court of Appeal for Ontario confirmed in R. v. Hess,⁵¹ the availability and suitability of treatment and programming beyond that which is offered directly by Correctional Service Canada are relevant to the potential control of the risk posed by the offender in the community. The Court of Appeal stated:

The Parole Board has a broad power to craft and impose conditions for long-term supervision. It can establish conditions that it considers “reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender”: Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 134.1(2).... The conditions imposed are subject to regular review and can be varied by the Parole Board.

Under the CCRA, offenders may be ordered to reside at a specific place, including a psychiatric facility or community residential facility: s. 133(4.1). The Parole Board can limit the time that the offender spends in the community and require the respondent to meet with members of an ACT at specified intervals. Perhaps most importantly for this case, as this court held in Ramgadoo, at para. 58 – 59, the Parole Board can impose mental health treatment conditions in the LTSO.⁵²

168R.M.P. recognizes his need for supervision: to Dr. Gray he said that “he needs to be in a group home to be monitored” and he was agreeable to a curfew. He also told Dr. Gray that he would “need someone to help me get to appointments and help to take my medications at the right time.”

169I contrast the evidence before me to the situation before the Court of Appeal for Ontario in Grayer, to which the Crown referred me, albeit in the context of her submissions that an indeterminate sentence would be appropriate if R.M.P. were found to be a dangerous offender. In dealing with Mr. Grayer’s application to introduce fresh evidence on the appeal, the Court of Appeal observed that apart from a brief statement made by Mr. Grayer at the conclusion of the dangerous offender application, there was no evidence or information that Grayer would be agreeable to involving himself in a community-based programme which would be closely supervised. The Court of Appeal was left only with the evidence at the hearing of Grayer’s “hostile and non-cooperative attitude” and held that it would be speculative to conclude that Grayer would be a suitable candidate for supervision within the community.⁵³

170Here, I find that R.M.P. has show some insight into his problems and has shown a willingness to be closely supervised and to engage in programming and treatment. Both experts opined that with the measures they outlined, there is a “reasonable expectation” of eventual control of R.M.P.’s high risk of sexual or serious violent reoffence in the community (the higher standard required under s. 753(4.1)). I need only find a reasonable possibility of eventual control. The evidence adduced at the hearing amply supports such a finding.

Conclusion on Section 753.1(1)

171Unlike the dangerous offender designation provision, s. 753.1(1) is discretionary: even when all three prerequisites in s. 753.1(1) are established, a judge hearing a long-term offender application need not find an offender to be a long-term offender. R.M.P. falls within the target group of offenders at which s. 753.1(1) is aimed: he poses a substantial risk of reoffending violently in the future but there is a reasonable possibility of eventual control of the risk in the community. I therefore find R.M.P. to be a long-term offender.

Length of Long-term Supervision Order – Section 753.1(3)(b)

172In my view, a long-term supervision order of 10 years is appropriate in this case. In reaching this conclusion, I have relied on the psychiatric evidence that schizophrenia is a life-long illness; a substance use disorder relating primarily to alcohol is also a life-long condition. R.M.P. will be in his 50s when the long-term supervision order expires – the age at which some of the behaviours associated with schizophrenia tend to attenuate. I also note Dr. Pallandi’s evidence that treatments for substance use disorders are directed towards long-term management.

Determinate Sentence under Section 753.1(3)(a) – Applicable Principles

173The final issue is the length of the determinate portion of the sentence that the long-term supervision order will follow. R.M.P. has spent 30 months in pre-sentence custody on these convictions and is entitled to credit for the time spent in custody against any sentence to be imposed.

174As in all sentencing proceedings, it is incumbent on the sentencing judge to apply the principles and mandatory guidelines put in place by ss. 718 to 718.2 of the Criminal Code: Boutilier.⁵⁴ For individuals designated as dangerous offenders or long-term offenders, Parliament has determined that protection of the public is an enhanced sentencing objective. However, it remains necessary to evaluate all the circumstances: Boutilier.⁵⁵

175In Spilman, Watt J.A. stated:

I am satisfied that in determining the length of the fixed-term custodial component of a composite sentence under s. 753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV, and other applicable sentencing principles…. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context.⁵⁶

176As I have remarked elsewhere,⁵⁷ Watt J.A.’s statement applies equally to s. 753.1(3)(a) which provides that on finding an offender to be a long-term offender, in addition to imposing a long-term supervision order, the court “shall impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years.” I rely on four of the six reasons articulated by Watt J.A. in support of his conclusion. First, the enhanced objective of public safety distinguishes proceedings under Part XXIV from those under Part XXIII and “is of sufficient cogency to warrant sentencing dispositions beyond those ordinarily available for the predicate offence.”⁵⁸ Second, the language “impose a sentence for the offence for which the offender has been convicted” does not preclude sentencing judges from placing enhanced focus on public safety when imposing a sentence.⁵⁹ Third, the requirement that the custodial component of the composite sentence must be a minimum of two years’ imprisonment signals a departure from the traditional sentencing principles of Part XXIII.⁶⁰ Fourth, the offender is being sentenced as a dangerous offender or, in this case, as a long-term offender who committed the predicate offence. As Watt J.A. put it, the “different focal points of the sentencing proceedings puts paid to the claim that the length of the custodial term ... should mirror that in stand-alone proceedings for the predicate offence.”⁶¹

177In Spilman, Watt J.A. confirmed that the sentencing judge is entitled to take into account access to rehabilitative programming in a penitentiary in deciding upon the length of the custodial component of a composite sentence under s. 753(4)(b).⁶² To illustrate his point that facilitating access to treatment or other rehabilitative programs factors into the sentencing judge’s decision about whether there is a reasonable expectation that a sentence other than detention in a penitentiary for an indeterminate period will adequately protect society from the risk of future violent recidivism, Watt J.A. relied on the Court of Appeal for British Columbia’s decision in R. v. Hopley.⁶³

178In Hopley, the appellant was found to be a long-term offender and the sentencing judge imposed a composite sentence under s. 753.1(3). Hopley appealed on the basis that he had not been given adequate credit for the time he had spent in pre-disposition custody.⁶⁴ In dismissing the appeal, the Court of Appeal for British Columbia observed that,

[w]ith respect to a long-term offender order, the protection of the public is sought to be achieved by reducing the offender’s risk through programming and treatment while serving the determinate sentence in order to facilitate the offender’s supervised reintegration into the community.

... The judge found that it was unlikely Mr. Hopley’s substantial risk to reoffend would be sufficiently reduced to a level that could be managed in the community without a lengthy period of incarceration, during which it was hoped that he would successfully complete the high intensity Sex Offender Program or alternatively have his risk to reoffend reduced through the aging process.

The overarching objective of the protection of the public, through the formulation of a determinate period of imprisonment adjusted for credit for pre-sentence custody at the lower rate in order to facilitate the offender’s supervised reintegration into the community, distinguishes this case from [R. v. Gazeley, 2006 BCCA 240, 210 C.C.C. (3d) 218]. In this case, the judge’s discretionary application of the lower credit rate for the qualitative rationale, and impliedly for the quantitative rationale, was justified through a principled analysis that focused on the objective of the public’s protection.⁶⁵

179The length of the custodial sentence imposed under s. 753.1(3)(b) is subject to three constraints: (i) the custodial sentence imposed cannot exceed the maximum term of imprisonment for the predicate offence; (ii) the sentencing objectives, principles, and factors in ss. 718-718.2; and (iii) the length of the sentence imposed must be responsive to evidence adduced at the hearing.⁶⁶

Determinate Sentence – Application of the Legal Principles

180The offences on C.S. and K.H. were very serious with aggravating factors. The sexual assault on C.S. consisted of digital penetration. She was pregnant at the time and R.M.P. knew that to be the case. The sexual assault on K.H. – a vulnerable person with developmental disabilities – involved vaginal intercourse without a condom. Both victims were immobilized at the time of sexual assaults. R.M.P. caused psychological harm to C.S. and K.H.

181R.M.P. has a very lengthy criminal record. He has one prior conviction for sexual assault.

182R.M.P. maintains his innocence with respect to the predicate offences. He has a right to do so. This is a neutral factor in my assessment.

183R.M.P.’s personal circumstances are also relevant to the assessment of the appropriate determinate sentence. There is no question that R.M.P.’s childhood and youth were tragic. His parents divorced when he was young and he lived for a brief period of time in a foster home. He was sexually abused at the age of 11 and then spent a year and a half in a psychiatric hospital. His diagnosis of schizophrenia is long-standing. He began to abuse alcohol and drugs at a young age. I refer to R.M.P.’s background and his mental health not to excuse his criminal behaviour but to emphasize the importance of R.M.P. receiving the appropriate treatment and programming he needs before he is released.

184The ICPM, available in the federal correctional system, delivers integrated programming designed to address the criminal risks of the offender. It is designed to help offenders understand the risk factors linked to their criminal behaviour and to teach offenders how to use the skills learned in the program in challenging situations following their release. Critically, the programming available in a federal institution will take into consideration R.M.P.’s mental health issues and his substance abuse. There is a need to ensure that R.M.P. has access to the appropriate treatment, programs and supports while he is in custody, before he is released back into the community. Based on the evidence adduced at the hearing, I find that enhanced credit for the time R.M.P. spent in pre-sentence custody would unduly interfere with the length of custodial sentence I find necessary to adequately protect the public from the substantial risk of R.M.P.’s recidivism.

185Balancing all of the relevant factors, including the enhanced focus on public safety and the programming available to offenders in the federal correctional system, I conclude that for the sexual assault on K.H., a sentence of five years is the appropriate sentence to be imposed and for the sexual assault on C.S., a sentence of four years is the appropriate sentence. This leaves a period of two and a half years to be served after a credit of two and a half years for pre-sentence custody.

Disposition

186I find R.M.P. to be a long-term offender pursuant to s. 753.1 of the Criminal Code.

187On the offence of sexual assault on K.H., I sentence R.M.P. to a term of imprisonment of two and a half years. On the offence of sexual assault on C.S., I sentence R.M.P. to a term of imprisonment of one and a half years. These sentences accord R.M.P. a credit of two and a half years for the time spent in pre-sentence custody for total effective sentences of five years and four years, respectively. These sentences are to be served concurrently.

188This sentence is to be followed by an order that R.M.P. is to be supervised in the community for a period of ten years in accordance with the provisions of the Criminal Code and the Corrections and Conditional Release Act.⁶⁷

189I make the following ancillary orders:

(a) a lifetime mandatory weapons prohibition order under s. 109 of the Criminal Code;

(b) an order requiring R.M.P. to provide a DNA sample pursuant to s. 487.051(1) of the Criminal Code;

(c) an order prohibiting R.M.P. from communicating, directly or indirectly, with C.M., K.H., and C.S. during the custodial portion of the sentence; and

(d) an order requiring R.M.P. to comply with the Sex Offender Information Registration Act⁶⁸ for life.

190Pursuant to s. 760 of the Criminal Code, I order that a copy of all reports and testimony given by Drs. Gray and Pallandi, together with a copy of these reasons and the transcript of the trial of R.M.P., be forwarded to Correctional Service of Canada for information.

Justice R. Ryan Bell

Released: November 20, 2020

APPENDIX

On November 20, 2020, the following subparagraph was amended:

189(d) an order requiring R.M.P. to comply with the Sex Offender Information Registration Act for 20 years has been replaced with an order requiring R.M.P. to comply with the Sex Offender Information Registration Act for life.