SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-05-PR-000241-000

DATE: 20210122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.T.

Defendant

Reid, S. and Khader, A., for the Crown

Greenspan, B. and Biddulph, M., for the Defendant

HEARD: May 13, 14, 15, 16, and 17, 2019, and November 16, 17, 18, 19, 20, and 23, 2020

REasons on dangerous offender application

H. mcarthur J.:

A. Introduction

[1] The Crown is seeking a dangerous offender designation against J.T. and the imposition of an indeterminate sentence.

[2] The offences triggering the application are historical and relate to J.T.’s sexual abuse of his three young stepdaughters over the course of approximately eight years, from 1993 to 2001. During those years, J.T. subjected E.F., M.F. and N.F. to repeated forced vaginal, oral and anal intercourse. J.T. was charged with numerous sexual offences related to this abuse in 2001.

[3] Following a trial, I found J.T. guilty of three counts of sexual assault, three counts of sexual interference and two counts of sexual exploitation. Pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, I am staying the two counts of sexual exploitation in relation to M.F. and E.F. (Counts 3 and 8).[1]

[4] This was J.T.’s third trial. At his first trial in 2005, a jury found J.T. guilty. The Crown then brought a dangerous offender application and J. Wilson J. sentenced J.T. to 18 years’ imprisonment, followed by a 10-year long-term supervision order. J.T. went to the penitentiary. While awaiting his appeal, J.T. took programming aimed at reducing his risk for violent and sexual reoffending. He did fairly well in his programs and was generally a model inmate.

[5] J.T.’s appeal was successful. In the spring of 2012, he was released on bail pending his second trial. He was in the community without incident for about a year and a half, leading up to his second trial. J.T. then absconded during his second trial in October 2013. He spent approximately a year and a half living under an assumed name in British Columbia. His ruse came to light when he was charged with numerous counts of domestic assault, threatening, sexual assault and voyeurism. The charges were stayed, however, when J.T. entered into a peace bond. J.T. was returned to Ontario, where ultimately, he went to trial before me.[2] There is now a deportation order against J.T. and he is at some point to be deported to Peru.

[6] The Crown argues that J.T. poses a future threat to the lives or safety of the public and seeks a designation of dangerousness pursuant to s. 753(1)(a)(i) of the Criminal Code (based on a pattern of repetitive violent conduct) and/or s. 753(1)(b) of the Criminal Code (based on his failure to control his sexual impulses). In the alternative, the Crown seeks a long-term offender designation. If I sentence J.T. to a long-term supervision order, the Crown asks me to stay the deportation order to ensure that J.T. is kept in Canada to be properly treated and supervised.[3]

[7] Given the historical nature of the offences, J.T.’s matter is covered by three different statutory dangerous offender regimes. To simplify the proceeding, the Crown is only seeking a dangerous offender designation in relation to M.F. and N.F., which, given the dates that he abused them, means that just two different dangerous offender regimes would apply. The Crown seeks a determinate fixed sentence of ten years for the offences in relation to E.F.

[8] The defence concedes that the predicate offences disclose a pattern of repetitive behaviour showing J.T.’s failure to restrain his violent behaviour and a failure to control his sexual impulses. The defence argues, however, that evidence of J.T.’s past pattern of behaviour is insufficient to ground a dangerous offender application. Rather, the Crown must show that J.T. poses a future threat to the lives or safety of others. Given that in the over 19 years since the predicate offences J.T. has never been accused of any sexual impropriety against children, the defence asserts that the Crown has failed to establish that there is a high likelihood that J.T. will reoffend and that his criminal behaviour is intractable. Moreover, the defence submits that the Crown has failed to establish that J.T. poses the substantial risk of reoffending required for a long-term offender designation. The defence argues that a sentence of nine to 12 years is appropriate. J.T. has served over 10 years in custody (before any enhanced credit). The defence argues that J.T.’s presentence custody far exceeds what is appropriate and submits that he is in a time-served position.

[9] I will start out by briefly addressing the impact of s. 11(i) of the Canadian Charter of Rights and Freedoms in light of the historical nature of J.T.’s offences. I will then set out the relevant evidence. Next, I will address the applicable legal framework before turning to the legal issues raised.

B. Impact of s. 11(i) of the Charter

[10] Section 11(i) of the Charter provides that if the punishment for an offence has been varied between the time of its commission and the time of sentencing, any person charged with that offence has the benefit of the lesser punishment. As explained recently by the Supreme Court in R. v. K.R.G., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 1, s. 11(i) recognizes the basic tenet of our legal system that “[p]eople’s conduct and the legal consequences that flow from it should be judged on the basis of the law in force at that time.”

[11] Given the historical nature of J.T.’s offences, s. 11(i) comes into play in four ways: 1) J.T.’s legal matter straddles three different dangerous offender regimes; 2) Parliament has increased the maximum sentences for the offences for which J.T. has been convicted and such offences now attract mandatory minimum sentences; 3) Parliament has enacted legislation putting a cap on how much presentence custody can be awarded; and 4) Parliament has expanded the scope of s. 161 prohibition orders.

[12] If the statutory changes were applied to J.T., he would be subject to a greater punishment than if he were sentenced according to the law in existence at the time he offended. Section 11(i) dictates, however, that with respect to each legislative change since his offences, J.T. is constitutionally entitled to the benefit of the lesser punishment.

[13] At this stage, I will only address the impact of s. 11(i) given the evolving dangerous offender regimes. I will consider the impact of s. 11(i) on the other aspects of J.T.’s sentencing later in these reasons.

[14] The first dangerous offender regime was introduced in 1977 and was in place until 1997, when it was amended. The offences relating to E.F. started in 1993 and so fall, in part, under this regime. As I have already noted, in order to simplify this proceeding, the Crown is not seeking a dangerous offender designation in relation to E.F. As a result, this regime is not implicated in the current hearing and I will not discuss it further.

[15] The second dangerous offender regime came into effect in 1997. This was the dangerous offender scheme in place at the time that J.T. sexually abused M.F. and N.F. (and the one that was in place at J.T.’s first dangerous offender hearing).

[16] The dangerous offender regime that governed when J.T. abused M.F. and N.F. was a “one-stage” process. If the preconditions were met, a judge had discretion as to whether to designate an offender as dangerous. But if a designation was made, there was no discretion at the sentencing stage; an indeterminate sentence had to be imposed.

[17] The current regime came into effect in 2008 and, as I will set out in more detail below, is a “two-stage” process. If the preconditions are met, the judge must designate the offender as dangerous, but has discretion at the sentencing stage. Under the new regime, a dangerous offender must be sentenced to an indeterminate sentence unless there is a reasonable expectation that a lesser measure will adequately protect the public: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 20.

[18] At his first dangerous offender hearing before J. Wilson J., J.T.’s matter proceeded under the one-stage process enacted in 1997. At the dangerous offender hearing before me, J.T. had the option to proceed under the 1997 regime or the new scheme put in place in 2008. J.T. chose to proceed under the current regime.

C. Facts

a. Overview of Evidence Adduced at the Dangerous Offender Hearing

[19] The Crown called five witnesses: 1) M.C., the victims’ mother, who testified about abuse she suffered from J.T.; 2) Brad Tamscu, who testified about the programs and treatment available to offenders sentenced to the provincial system; 3) Sherri Rousell, who testified about the treatment and programs available to offenders in the federal system and under long-term supervision orders; 4) Dr. Treena Wilkie, who was qualified as an expert in forensic psychiatry and risk assessment, and who conducted a risk assessment of J.T.; and 5) Dr. Nathan Kolla, who prepared the court-ordered assessment report pursuant to s. 752.1 of the Criminal Code.

[20] The Crown ultimately had some concerns about aspects of Dr. Kolla’s testimony and does not seek to rely on his evidence. The defence does not wish to rely on any aspect of Dr. Kolla’s evidence. Given the position of both parties, I will not consider his report or evidence in my analysis. That said, the s. 752.1 report has been properly filed as required by s. 753.1 of the Criminal Code.[4]

[21] The defence did not adduce any evidence apart from filing letters of support from some of J.T.’s family members and a former employer.

[22] I do not intend to provide a detailed outline of the testimony of the witnesses at the hearing. I will refer to their evidence as necessary in my analysis.

[23] I propose to first outline the facts related to the predicate offences. I will then go over the facts relating to other allegations made against J.T. and J.T.’s other offending behaviour. Next, I will discuss J.T.’s behaviour and treatment while in custody. Finally, I will turn to Dr. Wilkie’s opinion with respect to the risk posed by J.T.

b. Facts Related to the Predicate Offences

The General History

[24] J.T. immigrated to Canada from Peru when he was 20 years old. When he was 23, he met 31-year-old M.C. M.C. had four daughters, R.F., E.F., N.F. and M.F. R.F. was nine years younger than J.T.

[25] J.T. and M.C. started dating in the fall of 1992. By the summer of 1993, J.T. had moved in with the family.

[26] In March 1994, R.F. alleged that J.T. had sexually assaulted her. E.F. and N.F. also alleged that J.T. had physically assaulted them. J.T. was charged with several offences, placed on bail and prohibited from having contact with the family. M.C. then tried to commit suicide. The girls recanted their allegations and all of the charges were withdrawn in December 1994. By early 1995, J.T. was living with the family again.

[27] In May 1999, E.F. told her mother that J.T. had been sexually abusing her. The police were not contacted and J.T. continued to live in the home. J.T., however, stopped sexually abusing E.F.

[28] In May 2001, E.F. and J.T. became involved in a physical altercation. They were both charged with assaulting the other. In July 2001, E.F. and J.T. entered into mutual peace bonds and the charges were withdrawn. Following this, J.T. was still living in the family home.

[29] In August 2001, E.F. became suspicious that J.T. was molesting M.F. She asked M.F. if J.T. had been sexually abusing her. M.F. confirmed that he had been. E.F. told her mother, who then confronted J.T. He left the home, never to return. A few days later, E.F. took M.F. to the Hospital for Sick Children and the police were notified.

[30] The next day, the four sisters talked. R.F. said that J.T. had been having sex with her. The other sisters also confirmed that he had been having sex with them. The police became involved and laid charges against J.T. in September 2001, by which time, he had returned to Peru. J.T. learned of the charges and returned to Canada, but did not turn himself in. He was apprehended on May 16, 2003.

The Allegations by R.F.

[31] R.F. testified at J.T.’s first trial and the jury found beyond a reasonable doubt that he had sexually abused her. The dangerous offender proceeding brought by the Crown after J.T.’s first trial included R.F.’s allegations. However, the Court of Appeal sent J.T.’s matter back for a retrial. R.F. did not testify at J.T.’s third trial before me. I can understand why she made that decision. Coming back for yet another trial, so many years after the offences, was clearly difficult on the other three victims who did testify before me. But, though understandable, the fact that R.F. did not testify means that the allegations in relation to her remain unproven. As a result, I cannot consider the allegations relating to R.F. in determining whether J.T. should be designated as dangerous.

The Offences Against E.F.

[32] For the reasons explained above, the Crown is not seeking a dangerous offender designation in relation to E.F. The offences against E.F., however, have been proven beyond a reasonable doubt. Thus, I can consider J.T.’s sexual abuse of E.F. when determining if the Crown has established that J.T. should be designated as dangerous.

[33] J.T. began to sexually abuse E.F. in the summer of 1993, when she was 12 years old. He continued to abuse her until 1999. Over this time, he forced her to have vaginal, oral and anal sex with him. He had sex with her in the family home and in the home of a friend of his. Sometimes he plied her with alcohol before the abuse. Sometimes he made her watch pornography. On a couple of occasions, he videotaped himself having sex with her.

[34] When E.F. did not comply with J.T.’s sexual demands, he would start arguments with her mother and break things. He smashed vases and slashed the couch and television with a knife. A few times he threatened to commit suicide and blame E.F. or her mother if she did not comply. On the other hand, when E.F. complied with his sexual abuse, J.T. would be affectionate towards her mother and buy her things. E.F. recounted one incident where she submitted to J.T.’s demands to perform fellatio on him so that he would not leave her mother waiting for a ride home after she had worked long hours at the chicken processing plant. J.T. also offered E.F. gifts in exchange for sex, such as a Walkman or shoes for a school dance. As noted previously, the abuse ended in 1999 when E.F. told her mother what J.T. had been doing.

[35] E.F. does not recall making allegations against J.T. in 1994. The synopsis from that time reveals that she told police that J.T. hit her with a television cable. While she does not recall telling this to the police, E.F. does recall that J.T. hit her with a television cable.

The Predicate Offences – The Offences Against M.F.

[36] J.T. began to sexually abuse M.F. sometime in 2000, when she was 14 years old. J.T. initially forced her to submit to anal sex because he could not penetrate her vaginally without significant pain. Eventually, he expanded his sexual abuse to include vaginal and oral sex. J.T. sexually abused M.F. at the family home and at his friend C.O.’s apartment, when C.O. was at work. J.T. would at times bring both M.F. and N.F. to the apartment. M.F. said that J.T. would have sex with her while her little sister waited in the bathroom. Then M.F. would have to wait in the bathroom while J.T. took N.F. into the bedroom. At times J.T. plied her with alcohol before abusing her. At times he showed her pornography. J.T. also videotaped her performing fellatio on him.

[37] J.T. brought M.F. to his friend R.’s place twice. The second time, J.T. instructed M.F. to wear a skirt without underwear. Once inside, J.T. had M.F. perform oral sex on him while R. watched and masturbated.

[38] M.F. said that J.T. once showed her a video of her sister E.F. having sex with her boyfriend. E.F. testified that she had no idea that J.T. had surreptitiously taped her being intimate with her boyfriend.

[39] M.F. testified that if she gave him a hard time about his demands for sex, J.T. would slap her, pull her hair, twist her ear and swear at her. He would purposely get into arguments with her mother and break things, like vases, the sofa and the television. If M.F. complied, however, he would give her gifts, like a CD player, CDs, clothes and money for food at school. J.T. would often take her to the mall after she had sex with him. The abuse ended in 2001 after E.F. asked M.F. if J.T. was assaulting her.

The Predicate Offences – The Offences Against N.F.

[40] J.T. began to touch N.F. in a sexually inappropriate manner when she was ten years old. He forced her to have vaginal intercourse with him in 1998, when she was 11 years old.

[41] J.T. forced N.F. to engage in both vaginal and oral sex. He attempted anal sex and put the tip of his penis into her anus so hard that she bled. He had sex with N.F. in the family home. When she was 13 years old, he began to bring her to C.O.’s apartment and sexually abuse her there. At times, her sister M.F. was also at the apartment when N.F. was abused. J.T. showed N.F. pornography. He twice videotaped her having sex with him. He showed her a video of her sister E.F. having sex with her boyfriend.

[42] When N.F. complied with his demands, J.T. bought her a CD player, CDs and clothing, and gave her money for school trips and lunches. He also manipulated her into sexual encounters by offering her gifts and money. When N.F. resisted, he would threaten her, pull her hair, slap her face, kick her buttocks, break things like the television and couch and become violent with the family dog.

[43] N.F. recalled making the allegations of assault against J.T. in 1994, when she was about seven. She recalls that J.T. hit her with a cable and hurt her finger. But N.F. said she recanted her allegations, as her mother was devastated and sad.

The Impact on the Victims

[44] E.F., M.F. and N.F. endured horrific abuse for many years. The evidence that each of them gave about the systemic sexual exploitation they suffered at J.T.’s hands was heartbreaking.

[45] In addition to their testimony, I also had the opportunity to watch the s. 715.1(1) video interview of N.F., taped when she was 15 years old, and the s. 715.1(1) video interview of N.F., taped when she was 13 years old. It was clear even then that they were damaged by the abuse inflicted on them by J.T. They were children and they were scared, overwhelmed and embarrassed.

[46] When they testified before me, E.F., M.F. and N.F. were no longer little girls. They were women, testifying for the fourth time about the staggering abuse they had suffered. Each of them showed tremendous resilience. Each of them showed their bravery and strength of character. Each of them showed that, despite all he did, J.T. failed to break them.

[47] Yet, it was also clear that J.T. injured all three sisters in ways that still impact them today. Each of them prepared a Victim Impact Statement that poignantly spoke to the devastating impact J.T.’s abuse had on them.

[48] E.F. wrote that because of the abuse she endured, her “foundation was damaged and cracked.” People often tell her that she is a “very cold and hard person” and it takes time before she can be close to anyone. Her memories of the abuse will “never fade.”

[49] M.F. wrote about the suffering J.T. inflicted on her, and how he put her family “thru hell and back.” There are days where she panics and worries that people can see the pain that she hides inside. She has trust issues and does not let people into her life easily. To this day, she is impacted by J.T.’s abuse – she is often brought back to how she felt as a “powerless, scared child.”

[50] N.F. wrote that when she looks in the mirror, she sees “someone who is full of scars and damaged.” She said that she is permanently affected by the abuse that will “haunt her forever.” She suffers from panic and anxiety attacks, is unable to be in a proper relationship and has trust issues. Things like a simple trip to the mall can be a trigger; every time she sees a child with a man, she is worried for the child’s safety.

[51] It is clear that J.T. caused severe psychological and emotional harm to each victim.

c. Facts Related to Other Allegations and Offences

[52] J.T.’s case is unique in the dangerous offender context in that, apart from the predicate offences, he has little else on his criminal record. Some uncharged allegations were proven beyond a reasonable doubt before me. Other allegations faced by J.T. remain unproven.

Offences Against M.C.

[53] J.T. was never charged with any offences in relation to M.C., the victims’ mother.

[54] However, M.C. testified at the dangerous offender hearing about abuse that she says she suffered at J.T.’s hands. Among other things, she said that J.T. would become violent if she confronted him about lying. She alleged that he repeatedly engaged in non-consensual sex with her and forced her to have anal sex to the point of pain. She told the police in 2007, however, that he would stop having anal sex with her when she told him to stop. She also testified that J.T. sometimes forced her to shave her pubic hair, although at other times this was something that she did on her own.

[55] M.C. clearly has animus against J.T. He sexually abused her daughters and, as she told the police in 2007, she wants him dead for what he did. That said, her evidence was generally consistent and largely unchallenged on cross-examination. Moreover, the evidence of the victims corroborates her testimony about the violence J.T. perpetrated in the home.

[56] Looking at her evidence in the context of the evidence as a whole, I am satisfied beyond a reasonable doubt that J.T. sexually and physically assaulted M.C. These offences can be taken into consideration on this dangerous offender hearing.

1994 Allegations

[57] In 1994, E.F. and N.F. told police that J.T. hit them with a television cable. As noted above, these charges were all withdrawn. However, based on the evidence of E.F. and N.F., I am satisfied beyond a reasonable doubt that J.T. assaulted them as they alleged.

[58] R.F. told police in 1994 that J.T. had fondled her breasts at least four times and that, when she tried to resist, he slapped and punched her, pulled her hair and choked her. One time, he hit her on the head with a beer bottle. R.F. said that J.T. once got into the shower with her and afterwards offered her $20 to let him put his tongue in her vagina. Fearing more physical abuse, R.F. said that she eventually complied with his wishes. R.F. told police that on another occasion, J.T. instructed her to take a shower and got in with her and again wanted to perform oral sex on her. When she refused, he assaulted her until one of her sisters came into the room and told him to stop.

[59] I have no evidence before me, though, with respect to the allegations of sexual assault made by R.F. in 1994. Thus, those allegations remain unproven before me.

2001 Allegations

[60] As noted above, in 2001, J.T. was charged with assaulting E.F. and resolved this matter by way of a s. 810 peace bond. While there were no findings of guilt, in my view, based on the evidence of E.F., the allegations of assault have been proven beyond a reasonable doubt.

2003 Charge

[61] Although it is unclear from the record, it appears that J.T. was charged with obstruction of justice in May 2003, at the same time he was apprehended for the predicate offences. I was not provided with a synopsis for this charge. According to a Referral Decision Sheet for Offender Security Level from August 27, 2010, J.T. said that the obstruction charge was related to his using the name “Christian Torres” when he was arrested. This charge was withdrawn a few months later, in October 2003.

Workplace Allegation

[62] Although it is unclear from the records, in the Referral Decision Sheet for Offender Security Level from August 27, 2010, J.T. said that he had been accused by an employer of stealing a database from their server. It does not appear, however, that any charges were laid. I have no further information about this allegation.

2005 Allegations

[63] In 2005, when J.T. was on bail in relation to the predicate offences, he was charged with domestic assault, threaten death and fail to comply with a recognisance. It was alleged that J.T. pushed his then domestic partner, R.G., in the chest and said, “I’m going to kill you.”

[64] By entering into the peace bond, J.T. admitted that R.G. had reason to fear him. However, there were no admissions or findings of guilt with respect to the allegations of assault or threatening. These offences were not established beyond a reasonable doubt before me.

2015 Allegations

[65] In the spring of 2015, J.T. was charged with domestic assault, threatening and sexual assault against his then domestic partner, J.C. He was also charged with one count of voyeurism. At the time, J.T. was living under a fake name in British Columbia. J.C. knew J.T. as W.G.

[66] As set out in the Domestic Violence Risk Summary provided to the Crown in B.C., J.C. alleged that J.T. wanted to bite her and have anal sex. When she said no, he would force her to have sex with him. She also told police that J.T. once grabbed her with both hands around the neck to force her back into the home when she fled his assault. J.C. also alleged that J.T. contacted her in violation of a s. 515(12) no contact order.

[67] The allegations read in at the peace bond hearing did not include the allegations of sexual assault. Instead, the facts read in were that when J.C. would not give J.T. money, he began shouting at her and hitting her. She ran outside to escape and returned home a short while later. J.T. then ran at her, grabbed her and started kicking her in the back and legs. He slapped her several times in the head and ripped her bathrobe off. J.T. said he wanted to kill her. The police who attended observed that J.C. had a scrape and bruising on her elbow and arm, and she was limping.

[68] While the allegations made by J.C. are disturbing, there were no admissions or findings of guilt with respect to those allegations. And of note, when the Crown read in the allegations, he explained that “there have been some incidents that can’t be conclusively proven as linked to this accused.”

[69] The facts underpinning the voyeurism charge were not set out in any of the materials filed, except for a mention that J.T. was found clutching a USB key when he was arrested. I have no information about what, if anything, was found on that USB key.

2018 Conviction for Failing to Attend Court for Absconding from Second Trial

[70] On April 12, 2018, J.T. was found guilty of failing to attend court in relation to his absconding from his second trial. He has yet to be sentenced on that matter.

d. Facts Related to J.T.’s Time in Custody

Behaviour While in Custody

[71] The Crown filed voluminous institutional records regarding J.T.’s behaviour while in custody. The records show that, with a few exceptions, J.T. did well in the institutional setting. He has been essentially a model and compliant inmate.

[72] One incident was noted on November 5, 2011. The records reveal that there was an altercation between J.T. and another inmate and, as a result, J.T. was moved to segregation. J.T. advised that he was struck in the face three times by the other offender. The records report that J.T. was “not the aggressor” and that he did not fight back during the incident.

[73] Another incident was noted on December 10, 2015, when J.T. was accused of assaulting a correctional officer by pushing him and striking his left cheek area. No criminal charges were laid, nor does there appear to be any institutional misconduct, finding of guilt or other formal disposition with respect to this allegation.

[74] J.T. has one proven instance of misconduct from May 2018, when he was housed at the Toronto East Detention Centre. An inmate advised that he “had a problem” with J.T. When asked if he had been assaulted or if it was just a verbal disagreement, the inmate said that “nothing really happened.” Other inmates were questioned about the incident and advised that J.T. was the aggressor. A review of surveillance video showed that J.T. struck the other inmate. J.T. asked to be placed in segregation. He then pleaded “guilty with an explanation” to a misconduct, claiming that the other inmate had threatened him and it was a “pre-emptive strike.” J.T. was apologetic and received a penalty of a loss of two weeks’ canteen privileges.

[75] J.T. worked in the library for two months and was reported to be a “good worker” who used his “strong computer skills” to help others. He then was employed in various other positions in the institution.

Programs Taken Before J.T. was Sentenced to the Penitentiary

[76] J.T. went into custody after the jury found him guilty in February 2007 and was housed in the provincial system while awaiting completion of the dangerous offender application. According to a letter from an educational instructor at the jail dated April 21, 2008, J.T. had been upgrading his math and English skills. The author noted that J.T. was respectful, always did his homework and participated fully in class. Another letter dated April 24, 2008 from the Salvation Army Chaplain at the jail noted that J.T. was attending chapel service and Bible study.

Programs and Treatment While in the Penitentiary

[77] J.T. was sent to the penitentiary in 2008, after being given a sentence of 18 years and being designated a long-term offender by J. Wilson J. During his time in the federal penitentiary, J.T. denied that he had committed the predicate offences. Given his denial, some treatment options aimed at reducing risk were not open to him. However, he did engage in the treatment and programming that the institution made available to him

[78] J.T. took the Sex Offender Program – Deniers Group. He attended all 15 sessions and successfully completed the program. He was said to be “keen” to do well and reportedly asked “relevant and insightful questions.” On one occasion, J.T. was said to present as angry after being asked to attend the Family Violence Program. However, after he “ruminated” on the feedback he had received, J.T. agreed that he had not handled things well and apologised. His “post-treatment dynamic risk” was assessed as “moderate-low”.

[79] Since J.T. denied the predicate offences, he was not offered any further treatment aimed at reducing his risk of sexual reoffending. J.T. was offered the National Moderate Intensity Family Violence Prevention Program. J.T. attended all the sessions and successfully completed the program. He was described as “quiet and polite”, but “self-identified early on as a group spokesperson.” Group testing suggested that he had a tendency to manipulate answers and that he was deceiving himself and exaggerating. That said, his homework was completed well, and he demonstrated an understanding of the concepts discussed. He also came in for extra-assistance from facilitators. Overall, J.T. was assessed as demonstrating an understanding of the material, but it was reported that he appeared to be “avoiding” the underlying issues surrounding his criminal behaviours and abusive patterns.

[80] J.T. also attended the National Family Violence Maintenance Program. He participated in six sessions that reviewed his relapse/prevention/self-management plan and the skills and concepts introduced during the initial treatment. J.T. was noted to be “motivated”, and he “participated well.” It was reported that he “presented very differently during the maintenance component” and “no longer saw the need to present himself in a favourable light.” He was a “willing participant” and “open to feedback”. It was noted that, “to his credit, he now has a better understanding of how his behaviours were self-defeating and detrimental.” J.T. was reported to have made changes to his self-management plan and to have “explored deeper” into his offence cycle.

[81] J.T. also took ABE-School Level 3 and earned his grade ten education. According to a Program Performance Report, J.T. had excellent attendance, remained on task and worked quietly and efficiently. He was polite, respectful and “exceeded” the program’s expectations. J.T. pursued further educational programming and successfully completed 16 credits by October 2011, including English, math, science, history and geography.

Programs Taken While Waiting for his Current Matter to Finish

[82] J.T. has participated in some limited programming while awaiting the completion of his matter before me. Despite being in custody since 2015, when he was arrested for absconding, he did not really start taking programs until October 2019. In an Inmate Statement Form, J.T. advised that he only learned about “core-programs” being offered in May 2019. He also advised that he ran into obstacles in taking programs and was limited in the programs he could take. I agree with Crown counsel that it is highly unlikely that J.T. was unaware of the programs offered at the institution before May 2019. That said, J.T.’s complaints about the availability of programs at the jail where he has been housed is consistent with issues raised by other offenders over the past several years. Based on my experience sitting in this jurisdiction, I accept that J.T. faced some roadblocks once he finally determined that he wanted to take such programs.

[83] Despite his late start and the limited opportunities available, J.T. did achieve some success. He completed three programs: 1) Anger Management; 2) Thoughts to Action; and 3) Goal Setting. He also completed three programming booklets and received three Certificates of Completion for the following: 1) Use of Leisure Time; 2) Understanding Feelings; and 3) Managing Stress.

e. Psychiatric Evidence

Dr. Wilkie’s Diagnoses

[84] Dr. Wilkie was qualified as an expert in forensic psychiatry and risk assessment. J.T. refused to participate in an assessment with her. As a result, Dr. Wilkie assessed the level of risk posed by J.T. based simply on a file review.

[85] Dr. Wilkie testified that she could not provide any diagnoses based on a file review alone. However, she reviewed the diagnoses provided by Dr. Derek Pallandi, who prepared the s. 752.1 assessment in 2007 for the first dangerous offender hearing brought in J.T.’s matter. Dr. Pallandi diagnosed J.T. with pedophilia, as well as possible sexual sadism disorder and voyeuristic disorder.

[86] Dr. Wilkie agreed with Dr. Pallandi. She explained that, since she did not meet with J.T., she could not provide an “independent diagnostic formulation.” However, she opined that for a hypothetical adult male with the same characteristics and history who met with her but would not consent to an interview, she would make the diagnoses of pedophilic disorder, antisocial personality traits and possible sadism and voyeuristic disorders.

[87] Defence counsel points out that Dr. Wilkie relied on Dr. Pallandi’s diagnoses, yet J.T. also refused to participate in the assessment he conducted. Dr. Wilkie explained that Dr. Pallandi had the opportunity to meet briefly with J.T. to conduct a “mental status examination”, which would then allow him to make a diagnosis based on a file review. Dr. Pallandi, however, made no mention of a mental status examination playing any part in his assessment. Indeed, he specifically noted that his assessment was based on a file review alone.

[88] I find, however, that this does not diminish the weight that I give Dr. Wilkie’s opinion that J.T. is a pedophile. I accept her evidence on this point. J.T. sexually abused three children for many years. Even without psychiatric evidence, it seems to me to be patently obvious that J.T. is a pedophile. It also seems clear that J.T. has antisocial personality traits and possible sadism and voyeurism disorders. The question is, what risk does J.T. pose to others in the future.

[89] Dr. Wilkie used both static actuarial instruments and structured professional judgment tools to assess J.T.’s level of risk. I turn now to consider the various tools she used in conducting J.T.’s risk assessment.

Psychopathy Checklist (Revised) (PCL-R) – 27.1 – Moderately Predictive of Future Risk

[90] Dr. Wilkie scored J.T. on the PCL-R, which is a tool that measures the extent to which an individual resembles the prototypical psychopath. The PCL-R consists of 20 items, each of which may be scored as a 0, 1 or 2, thus rendering scores on a continuum ranging from 0 to 40. Psychopathy is evidenced by a score of 30 or greater. That said, some studies have shown that a significant risk of criminality begins when an individual has a PCL-R score in the mid-20s or above.

[91] J.T.’s prorated score was 27.1. The standard error of measurement range is +/- 3.25 points. J.T.’s score places him in the 71st percentile, which is above average when compared with the prison population. Dr. Wilkie concluded that J.T.’s score on the PCL-R is “moderately predictive of future general and violent recidivism.”

[92] Dr. Wilkie prorated J.T.’s score because she omitted three categories: “Glibness/ Superficial Charm”, “Shallow Affect” and “Early Behavioural Problems”. Dr. Wilkie testified that she did not have enough information on these three factors to assign a score. She also testified that prorating likely has an impact on the overall validity of the test, but that it was permissible.

[93] But prorating the scores worked to J.T.’s disadvantage. And, as pointed out by defence counsel, there was information in the file that might support the conclusion that J.T. did not exhibit these traits. That is, rather than an absence of information about these traits, there was information to suggest an absence of these traits. Arguably then, Dr. Wilkie could have assigned a score of zero rather than omitting these items. If Dr. Wilkie had done so, then J.T.’s score on the PCL-R would be 23. This score would put him in the 50th percentile, compared to the prison population.

[94] Defence counsel carefully took Dr. Wilkie through each of the categories that she scored and highlighted information in the file history that suggested that a lower score might be warranted. While Dr. Wilkie defended the scores that she gave, I accept, as argued by the defence, that some of the factors could have been scored in a manner more favourable to J.T. There is clearly a subjective element to the PCL-R that could lead to inconsistencies between experts in their assessment as to how the various factors should be scored. It would have been open to the defence to call another expert who may have scored the instruments differently. However, while the court always maintains the responsibility to carefully assess and weigh the evidence, it is not my role to step into the place of the expert and score the items myself.

Violence Risk Appraisal Guide (VRAG) – Moderate Risk

[95] Dr. Wilkie also scored J.T. on the VRAG, which is an actuarial instrument for predicting violence among male offenders. J.T.’s score placed him in the 38th percentile compared to the developmental sample of male offenders and in the fourth of nine ascending categories of risk on the instrument. Given the estimated measure of error associated with the VRAG, J.T.’s score would be expected to fall within one risk category above or below on this instrument. Of those in the sample group who received a similar score, 31 percent reoffended within ten years. J.T.’s score places him in a “moderate risk” category.

Sexual Offence Risk Appraisal Guide (SORAG) – Moderate Risk

[96] Dr. Wilkie also scored J.T. using the SORAG, an actuarial instrument for predicting violence among male sex offenders. J.T.’s score placed him in approximately the 41st percentile compared to the developmental sample of male offenders. His score of three placed him in the low end of the fourth of nine ascending categories of risk (the category ranged from a two to a seven). Given the estimated measure of error associated with the SORAG, J.T.’s true score would be expected to fall within one risk category above or below his score. J.T.’s score on the SORAG places him in the “moderate risk” category.

STATIC-99-R – Average Risk

[97] Dr. Wilkie scored J.T. using the STATIC-99-R, which is a screening tool used to identify individuals at risk for future sexual reoffending. Dr. Wilkie acknowledged that at least one study has identified that the STATIC-99-R may over-predict recidivism for Latin American offenders, specifically those in the average risk category like J.T., but cautioned that more research is needed. Dr. Wilkie also noted that this instrument fails to consider some factors known to be related to sexual recidivism, such as psychopathy, and as a result has “more limited reliability and validity.” J.T. scored a two on the STATIC-99-R. Compared to other adult male sexual offenders, J.T.’s score falls just below the 48th percentile. His score places him in an “average risk” category.

Structured Professional Judgment Tools

[98] Dr. Wilkie considered J.T.’s dynamic risk by using the Historical Clinical Risk Management-20, Version 3 (HCR-20 V3). This is a structured professional judgment tool used to assess risk for interpersonal violence based on static and dynamic factors shown in the literature to be empirically related to violence. Its purpose is to identify salient risk factors and inform risk management interventions.

[99] Dr. Wilkie also assessed J.T. using the Structured Assessment of Protective Factors (SAPROF). The SAPROF is a tool for the assessment of protective factors for adult offenders. It is intended to be used in addition to risk-focused, structured professional judgment assessment tools, such as the HCR-20 V3.[5]

[100] Dr. Wilkie opined in her report that the principal criminogenic variables in J.T.’s case were: his history of problems with violence and other antisocial behaviour; his history of problems with violent attitudes; his history of problems with relationships; his history of and recent problems with treatment or supervision response; his recent problems with insight; and his recent problems with instability (affective, behavioural and cognitive functioning).

[101] In cross-examination, defence counsel made Dr. Wilkie aware of the programming that J.T. had taken at the Toronto East Detention Center since 2019. Based on that information, Dr. Wilkie said that she would revise her opinion that J.T. had recent problems with his response to treatment or supervision and delete this factor as a risk variable.

[102] Dr. Wilkie wrote at p. 45 of her report that J.T. has been sexually abusive to multiple female victims over a duration of years. She further noted that he had been involved in relationships with female partners characterized by a controlling and hostile interpersonal style and that most of his offending has been directly connected to his relationships with female partners. Dr. Wilkie said that J.T. had evidenced a lack of insight into the impact of his behaviours and a failure to fully engage in treatment or supervision efforts. Of note, she also expressed her concerns that J.T. had “spent several years incarcerated and has reoffended both in the institution and in the community.”

Ultimate Conclusion Regarding Risk – Substantial Risk

[103] There is some dispute between the parties as to Dr. Wilkie’s final opinion regarding the risk posed by J.T. The Crown argues that Dr. Wilkie found that J.T. poses a substantial risk for reoffending violently or sexually. The defence counters that Dr. Wilkie’s ultimate conclusion, as reflected in her testimony, is that J.T. represents only a moderate risk of violent recidivism.

[104] Looking at the totality of her evidence, it is clear to me that Dr. Wilkie’s ‘bottom-line’ opinion is that J.T. poses a substantial risk.

[105] Dr. Wilkie did use different language when articulating what she believed to be J.T.’s risk level. At p. 48 of her report, she stated, “Overall, I would view [J.T.] as being at moderate risk for general and violent recidivism, and average risk for sexual recidivism from an actuarial and clinical perspective.”

[106] However, Dr. Wilkie went on to opine at p. 49 of her report that “[t]he above-noted risk assessment suggests that [J.T.] presents with a substantial risk of general and violent re-offence.”

[107] Dr. Wilkie repeated this prognosis in her summary at p. 54, where she stated unequivocally that “the above noted risk assessment suggests that [J.T.] presents with a substantial risk of future violence.”

[108] Dr. Wilkie testified that the difference in the language she used arose from the fact that the actuarial instruments, which suggested that J.T. was only a moderate risk, did not take dynamic risk variables into account. Based on the risk variables as identified in the structured professional judgment tools, Dr. Wilkie testified that she considers J.T. to be at substantial risk to reoffend.

[109] Despite articulating several times in her testimony that J.T. poses a substantial risk of violent recidivism, Dr. Wilkie also had the following exchange with Crown counsel at the end of examination in chief:

Q. Dr. Wilkie, from a psychiatric perspective, looking at the file in totality, what does the risk assessment say with respect to the likelihood of [J.T.] failing to restrain his behaviour in the future and causing injury to other people?

A. So taken in totality, its my opinion that he’s at moderate risk for sexual and violent recidivism.

Q. And, I’m going to go on and ask the second question even though it might be incorporated into the answer you just provided. Looking again from a psychiatric perspective, looking at the file in totality, what does the risk assessment say with respect to the likelihood of him, [J.T.], failing to control his sexual impulses in the future, leading to injury, pain or other evil done to other people?

A. Again, I would say from a psychiatric perspective it would be the same answer.

[110] Defence counsel focuses in on this exchange in arguing that Dr. Wilkie’s ultimate opinion is that J.T.’s risk of reoffence is moderate. But this portion of the evidence cannot be viewed in isolation. When Dr. Wilkie’s report and testimony are examined in their totality, it seems obvious that she did not understand the questions posed by Crown counsel.

[111] I find that Dr. Wilkie was saying that the actuarial and clinical tools considered in their entirety suggest that J.T. poses a moderate risk. But, as she made clear at several points in her evidence, having regard to other dynamic factors, she considers J.T.’s risk to be substantial.

[112] In her report, under the heading Assessment of Dangerous Offender Status, Dr. Wilkie set out the following factors that elevated J.T.’s risk level from moderate to substantial: 1) J.T. has engaged in violent offending that has likely caused harm to another; 2) J.T.’s behaviour, in past and current offences; 3) J.T. has offended during periods of time in the community while he was the subject of a warrant after having absconded from his trial; 4) J.T. did not evidence a change in his risk cycle after a period of incarceration; and 5) J.T. has not engaged in fulsome programming that addresses his risk issues in the institution or in the community.

[113] Dr. Wilkie agreed that her reference to current offences referred to the allegations in B.C. Similarly, her comment that J.T. offended in the community after absconding referred to the B.C. charges. In the same way, her view that J.T. failed to show a change in his risk cycle relates to the B.C. allegations.

[114] Thus, Dr. Wilkie’s ultimate conclusion that J.T. poses a substantial risk relies heavily on allegations that did not result in findings or admissions of guilt and have not been proven before me. I will consider the import of Dr. Wilkie’s reliance on unproven allegations when I turn to my analysis of whether the Crown has met the test for finding J.T. to be a dangerous offender.

[115] I turn now to a brief discussion of the legal framework for dangerous offender applications.

D. Legal Framework for Dangerous Offender Applications

[116] The primary purpose of the dangerous offender provisions in the Criminal Code is the protection of the public: R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at paras. 26-27; R. v. Jones, 1994 85 (SCC), [1994] 2 S.C.R. 229, at paras. 124-125; and R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 19, 23 and 29.

[117] Dangerous offender proceedings involve a two-stage process: 1) the designation stage and 2) the penalty stage. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat: Boutilier, at para. 31.

[118] At the designation stage, the court must determine whether the evidence adduced at the hearing satisfies the requirements of s. 753(1) of the Criminal Code for the offender to be designated a dangerous offender: Boutilier, at para. 14.

[119] There are four possible routes to a designation of dangerousness. In J.T.’s case, the Crown seeks to obtain a designation of dangerousness pursuant to two of those routes: s. 753(1)(a)(i) and s. 753(1)(b).

[120] To obtain a designation of dangerousness pursuant to s. 753(1)(a)(i), the Crown must first establish beyond a reasonable doubt that the offence for which the offender had been convicted – the predicate offence – is a serious personal injury offence as defined in s. 752(a).

[121] The Crown must then establish beyond a reasonable doubt that the offender poses a threat to the life, safety or physical or mental well-being of other persons:

1. based on a pattern of repetitive behaviour by the offender, of which the offence for which they have been convicted forms a part, showing a failure to restrain their behaviour; and

2. 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 their behaviour.

[122] To obtain a designation of dangerousness pursuant to s. 753(1)(b), the Crown must first establish that the predicate offence is a serious personal injury offence as defined in s. 752(b).

[123] Next, the Crown must establish beyond a reasonable doubt that, the offender, by their conduct in any sexual matter, including that involved in the commission of the predicate offence:

1. has shown a failure to control their sexual impulses; and

2. has shown a likelihood of causing injury, pain or other evil to other persons through failure in the future to control their sexual impulses.

[124] Under either s. 753(1)(a)(i) or s. 753(1)(b), the assessment of the threat posed is prospective and must take into consideration future treatment prospects.

[125] A finding of dangerousness requires the Crown to “demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the pattern of conduct.” This prospective approach ensures that only offenders who pose a “tremendous future risk” are designated as dangerous: Boutilier, at para. 46.

[126] If the Crown establishes beyond a reasonable doubt that the predicate offence is a serious personal injury offence and that the offender poses a threat to the lives or safety of others based on the above pattern of conduct, or that the offender is likely to cause injury, pain or other evil through a failure in the future to control their sexual impulses, then the offender must be designated a dangerous offender. The court has no discretion. The proceeding then moves to the penalty stage.

[127] Section 753(4) of the Criminal Code lists the three sentencing dispositions open to the sentencing judge at the penalty stage:

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

b) impose a sentence of a term of imprisonment of at least two years for the predicate offence, followed by a period of long-term supervision of not more than 10 years; or

c) impose a sentence for the predicate offence.

[128] Section 753(4.1) provides that the sentencing judge “shall” impose an indeterminate sentence unless “there is a reasonable expectation that a lesser measure” of either a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.”

[129] The sentencing judge must first “exhaust” the less coercive sentencing options set out in s. 753(4)(b) and (c) before imposing an indeterminate sentence: R. v. Spilman, 2018 ONCA 551, at para. 30; Boutilier, at para. 69. That is, the sentencing judge must first consider whether a conventional sentence would adequately protect the public from the risk of dangerous recidivism. If not, the sentencing judge must next consider whether a fixed-term sentence of at least two years followed by a long-term supervision order would address this risk. Finally, if it would not, then the judge must impose an indeterminate sentence. The sentencing judge must impose the “least intrusive sentence” required to achieve the primary purpose of the dangerous offender scheme – the protection of society from the risk presented by violent offenders at risk of reoffending: Boutilier, at para. 60.

[130] Dangerous offender proceedings are sentencing proceedings. The judge in such a proceeding must apply the sentencing principles and mandatory guidelines set out in ss. 718 to 718.2 of the Criminal Code: R. v. Steele, 2014 SCC 61, [2014] 2 S.C.R. 138, at para. 40; Boutilier, at para. 53. Although protection of the public is the primary purpose of a dangerous offender proceeding, that does not mean that this objective operates to the exclusion of all others. Rather, preventive detention “represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention are correspondingly increased”: Lyons, at para. 27; see also Boutilier, at para. 55.

E. Analysis on the Dangerous Offender Application

Issue One: Has the Crown established that J.T. committed serious personal injury offences?

[131] There is no dispute that the offences committed by J.T. are serious personal injury offences.

[132] Section 752(a)(i) of the Criminal Code defines a serious personal injury offence as an indictable offence that involves the “use or attempted use of violence against another person” and is punishable by ten years’ imprisonment or more. The sexual offences committed by J.T. involved violence.

[133] Moreover, it is clear that “any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence”: R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100,, at para. 77. The maximum sentence for sexual interference when the Crown proceeded by way of indictment at the time that J.T. committed his offences was ten years. He clearly committed a serious personal injury offence as defined in this section.

[134] Moreover, pursuant to s. 752(b) of the Criminal Code, sexual assault is specifically enumerated as a serious personal injury offence.

[135] I agree with the position jointly taken by the parties. There is no doubt that J.T. committed serious personal injury offences, a required precondition to a finding of dangerousness under both ss. 753(1)(a)(i) and 753(1)(b) of the Criminal Code.

Issue Two: Has the Crown established that J.T. has engaged in a pattern of repetitive behaviour showing a failure to restrain his behaviour as set out in s. 753(1)(a)(i), and that J.T. has, by his conduct, shown a failure to control his sexual impulses as set out s. 753(1)(b)?

[136] There is no dispute that the first component of s. 753(1)(a)(i) has been met: J.T. has engaged in a pattern of repetitive behaviour, of which the predicate sexual offences form a part, showing a failure to restrain his behaviour.

[137] Similarly, there is no dispute that the first aspect of s. 753(1)(b) has been established: by his conduct in the predicate offences, and in his sexual offending against E.F., J.T. has failed to control his sexual impulses.

[138] Based on all the evidence, I agree with the position jointly taken by the parties. Over the course of almost eight years, J.T. repeatedly sexually abused the victims. The abuse occurred many times each week. He forced each of the victims to submit to oral, vaginal, anal and attempted anal intercourse. J.T. viewed pornography with each of the victims and filmed himself sexually abusing them. He used manipulation, extortion and coercion to achieve his sexual goals. When the girls refused his advances, he would use violence to overcome their resistance. For each of the victims, he exploited his position of trust as their stepfather.

[139] The pattern of abuse continued even after J.T. was charged in 1994. The abuse continued against M.F. and N.F. in 1999, after E.F. told her mother that J.T. had sexually abused her. And J.T. continued his sexual abuse after he entered into a peace bond in 2001; his offending was undeterred. J.T. engaged in a systemic pattern of unrelenting predatory and exploitative sexual abuse of his stepdaughters. But for the fact that the girls finally disclosed his abuse to the police, his sexual assaults would have continued. The required pattern of violent and sexual misconduct by J.T. has clearly been established.

Issue Three: Has the Crown established beyond a reasonable doubt that there is a high likelihood of J.T.’s violent recidivism and that J.T.’s behaviour is intractable?

[140] The second element of s. 753(1)(a)(i) requires the Crown to establish beyond a reasonable doubt that J.T. poses a future threat to others because there is a likelihood that he will cause death or injury to another person, or that he will inflict severe psychological damage to another person through a failure in the future to restrain his behaviour.

[141] The second element of s. 753(1)(b) requires the Crown to establish that there is a likelihood that J.T. will cause injury, pain or other evil to another person through a failure in the future to control his sexual impulses.

[142] The dictionary definition of “likelihood” is probability: Canadian Oxford Dictionary, 2nd. ed. (2004). However, the Crown relied on several decisions where courts have found that a probability standard is too exacting: R. v. Langevin, 1984 1914 (ON CA), [1984] O.J. No. 3159 (C.A), at para. 31; R. v. Payne, 2001 28422 (ON SC), [2001] O.J. No. 146 (S.C.), at para. 107; R. v. Vanderwal, 2010 ONSC 265, at para. 37; and R. v. Tremblay, 2010 ONSC 486, at para. 98. Based on these cases, the Crown argues that the standard should be lower than a probability. Alternatively, the Crown relies on cases that concluded that likelihood in the dangerous offender context should be equated with probability: R. v. J.T.H., 2002 NSCA 138, at paras. 24, 50 and 72; R. v. Neve, 1999 ABCA 206. The Crown submits that on either approach the standard applied should not be overly demanding.

[143] All the above cases, however, predate the Boutilier decision. Thus, in my view they are of limited assistance in determining the meaning of the term likelihood in the dangerous offender context. Similarly, the Crown relied on the decision of R. v. Warren, [2018] O.J. No. 2040 (S.C.), at para. 78, where the court held that the likelihood standard did not amount to probability. However, the court there did not refer to Boutilier in its analysis. Thus, as with the cases that predate Boutilier, in my view Warren is largely unhelpful to the analysis.

[144] Again, Boutilier repeatedly cautioned that to ground a finding of dangerousness, the Crown has to establish beyond a reasonable doubt a high likelihood of harmful recidivism: at paras. 26, 27, 45 and 46.

[145] In my view, Boutilier establishes that the term likelihood in the dangerous offender context is a very high standard that at a minimum should be equated with probability. And there is some support for the proposition that the standard is higher than probability. For example, in R. v. Boalag, 2020 NLCA 33, at para. 13, the Newfoundland Court of Appeal found that it was an error to apply the “less stringent” standard of likelihood.

[146] Boutilier also made clear that the Crown must establish that the offender’s behaviour is “intractable”. Intractable conduct is behaviour that the offender is unable to surmount: Boutilier, at para. 27. 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. As explained in Lyons, at p. 338, the court must be satisfied that the pattern of conduct is “substantially or pathologically intractable.”

[147] The Crown argues that the combination of the “facts and the science” in this case lead inexorably to the conclusion that J.T. will likely commit violent and sexual offences and that his behaviour is intractable.

[148] This is a unique factual situation in the dangerous offender context. The predicate offences date back over 19 years. Since the charges were laid in 2001, J.T. has spent approximately ten years in the community. In the years that J.T. has been out of custody, he has not been found guilty of any violent or sexual offences. Nor have I been presented with evidence upon which I could find beyond a reasonable doubt that he has committed any violent or sexual offences in the time since. Moreover, and of import, in the years since he sexually abused the three sisters, there has not been a single accusation that J.T. has abused any other children.

[149] The Crown argues that J.T. continually enters into predatory relationships where he exercises domination and control over his female partners and is in a position to sexually exploit children. The Crown points to the fact that J.T. became involved in a relationship with R.G. shortly after his relationship with M.C. ended in 2001, when the allegations with respect to the predicate offences came to light. R.G. had a teenaged daughter and son who were with her in Canada when J.T. was living with her. J.T. then caused R.G. to fear him, as evidenced by the peace bond he entered into in 2005. After J.T. was convicted of the predicate offences, he spoke with R.G.’s daughter on the phone from the penitentiary, which showed a lack of insight and understanding of his risk factors. The Crown further points out that J.T. quickly entered into a relationship with J.C. after he fled to B.C. Once again, J.T. caused his domestic partner to fear him, as evidenced by the peace bond he entered into in 2012. The Crown submits that J.T.’s pattern of conduct with these women highlights his risk cycle.

[150] I agree with the Crown that it is concerning that, after abusing M.C. and her daughters over so many years, J.T. quickly started a new relationship with R.G., another single mother with a teenaged daughter. I am suspicious of his motives and intentions in this relationship.

[151] However, there is no suggestion, not even a hint, that J.T. acted in a sexually inappropriate way towards R.G.’s daughter. And once told that he was not to speak with her on the phone in the penitentiary, there is no evidence that J.T. did anything but fully comply with that direction. Further, J.T. did not admit to the allegations of physical violence made by R.G., nor have those accusations of violence been established before me.

[152] As it relates to the relationship that J.T. had with J.C., it does not appear that she had any children. Thus, the Crown’s argument that J.T. started relationships with vulnerable women in order to exploit their children is not borne out by this relationship. And while J.C. alleged that J.T. sexually and physically abused her, there have been no admissions or findings of guilt. Once again, J.T. admitted that his partner had cause to fear, but nothing more.

[153] There is no doubt that J.T.’s conduct in the predicate offences was horrific. I agree with the Crown that during the years he abused the sisters, his behaviour was intractable. He was not deterred after he was charged in 1994; his sexual misconduct only intensified. In the same vein, he continued to sexually exploit the two younger sisters even after E.F. told her mother that J.T. had been sexually abusing her. He engaged in a predatory and exploitative pattern of sexual misconduct. He committed innumerable sexual assaults against three vulnerable girls. And I agree with the proposition that often past behaviour is the best predictor of future conduct.

[154] But at the end of the day, when J.T. was in the community before his first conviction there were no allegations of impropriety towards a child and no findings of guilt with respect to any physical or sexual violence. J.T. was subsequently convicted and went to the penitentiary, where he received some treatment and did fairly well in the programs he took. He then spent approximately three years in the community without any allegations of sexual or other misconduct against a child. And while he was clearly breaking the law after he absconded, since he was ‘on the lam’, living under an assumed name, I have no admissible evidence to say that J.T. committed violent or sexual crimes during this time.

[155] I have no evidence that J.T. has been alleged to have committed any sexual crimes against children since his release from the penitentiary, and there have been no findings of guilt with respect to any violent or sexual offences against anyone. One inference could be that J.T., since receiving treatment in the penitentiary, has gained skills and tools to help him avoid reoffending.

[156] Further, one of the sentencing objectives set out in the Criminal Code is specific deterrence. That is, sentences imposed should drive the message home to the offender that if they reoffend, there will be significant consequences. The theory of specific deterrence can be, but is not exclusively, linked to the other sentencing objective of rehabilitation. While a treated offender is more likely to be rehabilitated and thus less likely to reoffend, specific deterrence does not rely solely on treatment to deter offenders, but also on the spectre of increasingly harsh sentences.

[157] I do not have evidence from J.T. and he chose not to participate in an assessment. But our system expects (or at least hopes) that jail sentences can deter offenders, even if they are tempted to reoffend, because they are afraid of going back to jail. J.T. spent 481 real days in presentence custody after his first conviction on the predicate offences, followed by 1,384 days in the penitentiary before his appeal was allowed. Thus, another inference potentially open to me is that J.T. did not offend because he was specifically deterred by his incarceration.

[158] Of course, another inference is that J.T. has committed crimes, evaded detection and simply gotten away with it. Dr. Wilkie seemed to draw this inference in reaching her conclusion regarding J.T.’s risk. But it would be improper for me as the sentencing judge to draw such an inference; it would be based on suspicion and speculation and would be contrary to the presumption of innocence.

[159] I am suspicious that J.T. assaulted his domestic partner in Ontario, R.G., as alleged; but there was no finding or admissions of guilt and I heard no evidence about this incident. I am also highly suspicious that J.T. physically and sexually assaulted J.C., his domestic partner in B.C. Her allegations with respect to forced anal sex are similar to those advanced by M.C. And it seems to be a beyond remarkable coincidence that J.T. happened to be charged with voyeurism in B.C. when I have found that he surreptitiously taped E.F. being intimate with her boyfriend.

[160] Allegations of criminality have swirled around J.T. for many of the years that he has been out of custody. It may be tempting to reason that where there is smoke, there is fire. But allegations and accusations are not evidence. Innuendo cannot support findings of fact. And suspicion is a far cry from proof beyond a reasonable doubt.

[161] Thus, in my view, the facts alone do not support a finding that there is a high likelihood of violent recidivism. I turn now to evaluate whether considering the science along with the facts establishes the very high standard required in the dangerous offender context.

[162] The actuarial tools used by Dr. Wilkie suggest that J.T. is a moderate or average risk of reoffending. On these tools, he is no more likely to reoffend than the average offender.

[163] Dr. Wilkie’s opinion that despite his moderate scores on the actuarial tools, J.T. nonetheless poses a substantial risk of recidivism relies heavily on unproven allegations. She testified that it is an accepted practice to rely on charges, even when those charges have not resulted in a finding of guilt. That may well be. But psychiatrists tasked with assessing risk have a different role than courts tasked with assessing whether to impose the most draconian sentence available in our system of justice.

[164] I agree with the reservations expressed by Pomerance J. in R. v. McLaughlin, 2014 ONSC 6537, at paras. 147-149, that for courts, relying on unproven charges in actuarial instruments runs contrary to the presumption of innocence, which is a central precept of our system. It is “wrong to penalize an offender with a higher recidivism score merely because he or she was charged, perhaps wrongly, by the police.”

[165] As noted in R. v. Pike, 2010 BCCA 401, 260 C.C.C (3d) 68, at para. 63, if the court is not independently satisfied as to the truth of facts relied upon by the expert in reaching their conclusion, then the value of the ultimate opinion is diminished: see also R. v. P.G., 2013 ONSC 589, at paras. 22-24; and R. v. M.J., 2013 ONSC 6803, at para. 334.

[166] In some instances, an expert’s reliance on unproven allegations might not make much, if any, difference to the weight given to their opinion. For instance, the proven offences may be such that the addition of unproven allegations could not realistically change the analysis. Each case must be assessed on its own facts

[167] In J.T.’s case, Dr. Wilkie relied on some unproven allegations that do not affect the weight that I give her opinion. For example, Dr. Wilkie relied on the allegations made by R.F. in 1994 that J.T. sexually assaulted her. These are unproven; however, during the timeframe that R.F. says J.T. abused her, there is no doubt that he was engaged in a systemic pattern of sexual abuse against three other young girls, R.F.’s sisters. He was also abusing their mother during the same period. But the issue in this hearing is not J.T.’s past pattern of failure to restrain his violent behaviour or sexual impulses. It is, rather, whether the Crown has proven that in the future there is a high likelihood of violent recidivism. In my view, Dr. Wilkie’s consideration of R.F.’s historical allegations, which occurred at the same time as the predicate offences, in forming her opinion does not meaningfully impact on the future threat assessment.

[168] However, Dr. Wilkie relied on other unproven allegations that I view as more problematic. In particular, Dr. Wilkie placed significant reliance on the B.C. allegations. To refresh, J.C. made disturbing allegations that J.T. bit her, physically abused her and forced her to have anal sex against her will. Dr. Wilkie relied heavily on these unproven allegations. In her report, she said it was “of note” that J.T. had reoffended violently after having participated in programming aimed at addressing risk issues, suggesting his ability to utilize the skills taught in those programs had not assisted in reducing his risk of reoffending. Dr. Wilkie used unproven allegations to elevate her risk assessment from moderate to substantial. To the extent that she did so, I find the weight that I give to her opinion regarding J.T.’s level of risk is significantly diminished.

[169] Further, Dr. Wilkie commented on and seemed to place weight on the fact that J.T. had reoffended after treatment while in the institution, referring to the November 5, 2011 incident recounted above. However, she failed to note the details set out in the incident report, which made it clear that J.T. had been hit several times by another inmate and was not the aggressor.

[170] A review of J.T.’s institutional record shows that he had one misconduct from the Toronto East Detention Center in 2018. This did not lead to any criminal charges. I agree with defence counsel that one misconduct in over five years in pretrial detention – a harsh and difficult place to be, especially for an alleged child sex offender – does not support the conclusion that he is a high risk to reoffend or intractable.

[171] Dr. Wilkie commented that “[J.T.] appears better able to exhibit behavioural control while incarcerated, which may indicate that he is more likely to attempt to control, manipulate and exhibit behavioral dyscontrol toward female partners or children, or others whom he views as less dominate, in a less structured/controlled environment.” The Crown points to this comment in arguing that it is likely that J.T. will reoffend. But J.T.’s good behaviour in custody cannot be turned on its head to somehow support a finding of serious risk. The finding that J.T. may be more likely to offend against children in the community than he is to offend against adults while in custody, is not the same as a conclusion that he is likely, let alone highly likely, to reoffend against children.

[172] Dr. Wilkie expressed concern about J.T.’s level of risk because he continues to deny that he committed the predicate offences. I note that denial or a perceived lack of remorse cannot, on its own, support an inference of future dangerousness: R. v. Levert (2001), 2001 8606 (ON CA), 150 O.A.C. 208 (C.A.), at paras. 40-41; R. v. Gibson, 2013 ONSC 589, at para. 45.

[173] J.T.’s continued denial of the predicate offences can be taken into consideration, as it may be a barrier to his participation in some treatment programs. That said, J.T. took the treatment offered to him as a denier when he was serving his sentence in the penitentiary. And during his approximately three years in the community following treatment, there were no allegations that he reoffended in any way against a child, physically or sexually. While his domestic partner in B.C. alleged that he physically and sexually assaulted her, there were no admissions or findings of guilt.

[174] Dr. Wilkie also expressed concern about J.T.’s risk because he is a pedophile with anti-social personality traits. She explained that pedophilia is a lifelong condition that can be managed, but not cured. But the analysis must focus on the intractability of conduct, not on the intractability of a diagnosed psychiatric disorder. And here, apart from the predicate offences, there have been no allegations that J.T. has engaged in sexual misconduct with a child. Thus, despite this psychiatric diagnosis, there is no evidence that J.T. is unable to surmount his issues; rather, the evidence suggests the opposite.

[175] Dr. Wilkie agreed in cross-examination that while in the penitentiary, J.T. engaged in programming and took it seriously. Further, Dr. Wilkie opined that, “[J.T.’s] prognosis for successful treatment (and a reduction in his risk for future violent reoffending) is average compared with other offenders when one considers his diagnosis.” I agree with the defence that an average prognosis for successful treatment is inconsistent with a finding of intractability.

[176] Overall, looking at both the facts and the science on the record before me, I cannot find beyond a reasonable doubt that there is a high likelihood that J.T. will reoffend violently or sexually. Nor can I find that his behaviour is intractable. Based on the admissible evidence – rather than the speculation and suspicion naturally arising from the unproven charges – the Crown has failed to establish that J.T. poses the “tremendous risk” required before the draconian designation of dangerousness must be imposed.

[177] Thus, the application to have J.T. designated as a dangerous offender is dismissed. I turn now to the issue of whether J.T. should be designated as a long-term offender.

F. Analysis Regarding the Long-Term Offender Application

[178] If the court does not find an offender to be a dangerous offender, then pursuant to s. 753(5)(a) of the Criminal Code, the court may treat the dangerous offender application as a long-term offender application.

[179] Pursuant to s. 753.1(1), a court may impose a long-term offender designation where the Crown establishes three things beyond a reasonable doubt:

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

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

c) there is a reasonable possibility of eventual control of the risk in the community.[6]

[180] In Boutilier, the Supreme Court explained that the long-term offender designation criteria are less onerous than those for a dangerous offender designation. The court noted that, while for a dangerous offender designation, 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", for a long-term offender designation under s. 753.1, the sentencing judge must merely be satisfied that "there is a substantial risk that the offender will reoffend": at para 75.

[181] There has been little judicial interpretation of the long-term offender statutory regime post-Boutilier. That said, while the court in Boutilier only referenced reoffending, it seems clear that what must be proven is not substantial risk of reoffending generally; rather, the Crown must prove that there is a substantial risk of violent reoffending in a manner that causes serious harm.

[182] Section 753.1(2)(a) of the Criminal Code provides that the court shall be satisfied that there is a substantial risk that the offender will reoffend if the offender has been convicted of one of several enumerated sexual offences, including the two at issue in this hearing (sexual interference and sexual assault), and the offender has shown one of two patterns of conduct as set out in either ss. 753.1(2)(b)(i) or (ii). I will address each in turn.

[183] First, s. 753.1(2)(b)(i) provides that the court shall be satisfied that there is a substantial risk of reoffence if the offender:

i) has shown a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons.

[184] There is scarce assistance in the caselaw as to how to interpret and apply this section. It is similar in many respects to s. 753(1)(a)(i) in the dangerous offender regime. That section also references a “pattern of repetitive behaviour” and a “likelihood” of causing harm to others. However, the dangerous offender section also requires that the evidence specifically show that the offender will cause harm in the “future” because of a failure to restrain their behaviour.

[185] In contrast, s. 753.1(2)(b)(i) does not explicitly express that the analysis should be prospective. That said, it seems clear that the assessment must focus on the offender’s future behaviour, not a retrospective analysis of their past criminal behaviour.

[186] I say that because, as with dangerous offender designations, a long-term supervision order is an exceptional sentence reserved for “individuals who pose an ongoing threat to the public and accordingly merit enhanced sentence on preventive grounds.”: Steele, at para. 1 (emphasis added); see also L.M., at para. 39. If the assessment of substantial risk focused only on past behaviour, the net would be cast so broadly that the provision would be constitutionally suspect.

[187] As it relates to the meaning of likelihood in this section, I find that it should be given its normal dictionary definition, which is probability. I cannot agree that a lesser standard should apply. Parliament specified that a likelihood was required. In my view, it did so because of the significant consequences to an offender who is given a long-term offender supervision order. A robust standard is required to ensure that the provision is constitutionally compliant.

[188] On the other hand, I cannot agree that the term likelihood in the long-term offender context requires the same high degree of likelihood as in the dangerous offender context. The lesser standard of a likelihood or probability is sufficient. This approach reflects the fact that the dangerous offender regime targets those who pose a “tremendous risk”, whereas the long-term offender scheme seeks to identify and manage those offenders who pose a “substantial risk”.

[189] There is no doubt that J.T. has shown a pattern of repetitive behaviour of which the predicate offences play a part. But based on the admissible evidence before me, I am not satisfied that there is a likelihood or probability that J.T. will reoffend and cause the type of harm contemplated by the long-term offender regime. J.T. has spent years in the community since the predicate offences without being found guilty of any other violent offences. While, in entering into peace bonds, J.T. admitted that two domestic partners had reason to fear him, he has never been found guilty of any assaults or threats towards those domestic partners, nor was any evidence adduced before me with respect to those allegations. The actuarial risk assessment suggests that J.T. is a moderate risk. The factors that led Dr. Wilkie to elevate her assessment to substantial risk are based on unproven charges.

[190] Overall, looking at the admissible evidence, rather than speculation and suspicion arising from unproven allegations, I am not satisfied that there is a likelihood that J.T. will reoffend and cause harm as set out in s. 753.1(2)(b)(i). As a result, the Crown has not proven that J.T. is a substantial risk through this statutory avenue.

[191] Second, pursuant to s. 753.1(2)(b)(ii) of the Criminal Code, the court shall be satisfied that there is a substantial risk of reoffence if the offender:

ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

[192] Again, there is no doubt that J.T.’s past sexual conduct caused significant harm. There is also no doubt that if J.T. reoffended in a similar way, he would cause injury, pain or evil. But the issue is whether the admissible evidence establishes that J.T. poses a threat in the future. J.T. has spent approximately ten years in the community since the predicate offences and has never been accused of impropriety towards a child. And while he was accused of sexual assault by his domestic partner in B.C., those allegations remain unproven. Further, based on the actuarial tools, J.T. poses an average risk of reoffence. As already articulated, to the extent that Dr. Wilkie nonetheless found him to be a substantial risk, I give little weight to that opinion because it is largely based on unproven conduct.

[193] Based on the admissible evidence, I find that the Crown has also failed to establish that J.T. is a substantial risk through this statutory route.

[194] It is unclear whether ss. 753.1(2)(b)(i) and (ii) are the exclusive avenues through which to prove substantial risk, or if it is open to the Crown to try to establish substantial risk in other ways. I will proceed on the basis that the Crown can seek to establish that an offender is a substantial risk without recourse to these statutory provisions. But, in undertaking this assessment, I agree with the comments of Nordheimer J., as he then was, that the long-term offender provision should be narrowly drawn: R. v. P.H., [2005] O.J. No. 5698 (S.C.), at para. 22; see also R. v. Riccardi, 2019 ONSC 6607, at paras. 72 and 86.

[195] Here, I am certainly satisfied that J.T. poses some risk. He is a pedophile. He has anti-social personality traits. While he has taken some programs, he has not undergone in-depth treatment. J.T., like many offenders, may reoffend. But based on the years that he spent in the community without being accused of harming a child or being convicted of any physical or sexual violence, I cannot find that it is probable that he will reoffend violently. Nor can I find that it is likely or probable that he will reoffend when also considering the psychiatric evidence. The actuarial tools suggest that J.T. is at moderate or average risk to reoffend. When the assessment focuses on the evidence that I am permitted to consider, J.T. poses no greater risk than many offenders.

[196] The public would be safer if offenders who pose a moderate or average risk of reoffence were subject to in-depth supervision as provided for in the long-term offender regime. Subjecting all repeat domestic abusers (as J.T. is alleged to be) to long-term supervision orders would help to stop cycles of violence. And there is no doubt that imposing long-term supervision orders on all pedophiles would protect vulnerable children. But casting the net so widely as to allow for the imposition of an intrusive supervision order against an offender whenever it may advance the goal of public safety would be contrary to the clear admonition from the Supreme Court that a long-term offender designation should be exceptional, not routine.

[197] Based on the admissible evidence before me, J.T. presents as a moderate risk to offend. He has been in the community for approximately ten years after the predicate offences without being accused of reoffending against a child. He has been in the community without being found guilty of other violent or sexual offences. Based on the actuarial tools, he is no more or less likely to reoffend than the average offender. There is certainly a risk that J.T. will reoffend. Risk itself, however, is an insufficient basis on which to impose a long-term offender designation.

[198] The Crown has not established that J.T. poses a substantial risk of violent or sexual reoffence. As a result, the application to have J.T. declared a long-term offender is dismissed.

[199] I turn now to an assessment of what a fit and proportionate sentence would be in this case.

G. Analysis Regarding a Fit and Proportionate Sentence for J.T.

[200] I propose to first briefly address the relevant sentencing principles and objectives. I will then consider the statutory sentences that applied at the time J.T. committed his offences and the applicable range, before turning to my analysis of what I believe to be an appropriate sentence in this matter. I will next consider what presentence credit should be granted to J.T. Finally, I will address the requested s. 161 prohibition orders and other ancillary orders.

[201] As noted earlier in these reasons, when determining what a fit and proportionate sentence would be for J.T., I must keep in mind the impact of s. 11(i) of the Charter, which arises when assessing the applicable statutory sentences and range, when evaluating the credit to be given for presentence custody and when imposing any s. 161 prohibition orders.

Sentencing Principles and Objectives

[202] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general or specific deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims or to the community and promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community.

[203] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. As noted in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58, “The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”

[204] The fixing of a fit sentence must always take into account the combined effects of the circumstances of the offence with the unique attributes of the specific offender: R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.), at para. 87. This is reflected in the proportionality requirement, described in s. 718.1 of the Criminal Code as the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[205] In addition to proportionality, the Criminal Code lists a number of other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b) and provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Given the highly individualized sentencing process, however, sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, para. 17; Lacasse, at para. 58.

[206] The totality principle is addressed in s. 718.2(c) of the Criminal Code. A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unjust. The cumulative sentence imposed must not exceed the overall culpability of the offender: R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 42.

[207] The restraint principle is reflected in both ss. 718.2(d) and (e) of the Criminal Code. As the Ontario Court of Appeal confirmed in Hamilton, at para. 96, the principle of restraint requires the sentencing judge to seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction: see also R. v. Sharma, 2019 ONCA 274, at para. 23.

[208] Pursuant to s. 718.2(a) of the Criminal Code, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[209] I will not address the aggravating factors at this stage, and instead will consider them then when assessing the gravamen of the entirety of J.T.’s offending.

[210] At this point, I will simply note that while J.T. continues to deny the offences, this cannot be considered as an aggravating factor. That said, J.T.’s denial of responsibility means that he is not entitled to the mitigation in sentence that he might have been if he had acknowledged his offending and showed some remorse for his actions. I turn now to the factors that are mitigating in J.T.’s case.

Mitigating Circumstances

[211] J.T. is a first offender for the purposes of this sentencing. He is now 50 years old and, apart from the offences at issue in this sentencing, his only other finding of guilt is a fail to appear related to his absconding from his second trial on this matter.

[212] J.T. has a fairly solid employment history. I agree with Crown counsel that it seems J.T. was not entirely forthright when he testified before me about his past employment. I also accept that he engaged in some ‘puffery’, exaggeration and perhaps outright deception in his resume. That said, there is no dispute that J.T. has worked in a variety of jobs related to computers. He has shown that he has the capacity to be prosocial through his work.

[213] J.T. also has skills and training that will assist him to obtain employment in the future. I accept, as noted by Dr. Wilkie, that because J.T. has been incarcerated without access to programs to keep current and upgrade his computer skills, he will face some challenges in finding immediate work in his chosen field. That said, a former employer wrote that J.T. worked with him for more than a year and was one of his best computer programmers. He also said that J.T. possessed computer skills that are in “great demand”.

[214] Further, based on the file information I have reviewed, it seems that J.T. is motivated to obtain further education and training. He has thought through what educational opportunities will be available for him when he is deported back to Peru. That bodes well for his ability to reintegrate into society upon release.

[215] J.T. has taken some treatment while in custody and did relatively well. When he is under supervision, he is generally compliant with all direction and requirements. This is a positive factor for J.T.’s rehabilitative potential.

[216] J.T. will be deported to Peru, a place where he has not lived since he was a young man. Being sent back to a country where he has little to no connection will no doubt be hard on him. I take this collateral consequence into consideration.

[217] J.T. appears to have strong family support. His mother wrote that he is “well loved” by his family and friends. His father wrote that he supports his son 100 percent. J.T.’s sister, G.T., wrote that he has been an excellent brother and a good uncle to her two children, and she supports him fully. J.T.’s brother, H.T., wrote that he was an “excellent” big brother. He noted that they were a “big family” and that J.T. helped out financially and took “good care” of them. J.T.’s other sister, P.T., wrote that her “big brother” always took care of the family and that she supports him totally. J.T.’s youngest brother, P.T., wrote that J.T. is “an invaluable part of our family” whom they look forward to being reunited with soon. This unwavering family support will be of assistance to J.T. as he attempts to move forward in a prosocial way and reintegrate into society.

The Applicable Maximum Sentences

[218] The maximum penalties set out in the Criminal Code are intended to give rough guidance regarding Parliament’s view of the gravity of the offence: Clayton C. Ruby, Sentencing, 10th ed., (LexisNexis Canada, 2020), at § 2.19 (QL).

[219] At the time that J.T. committed his offences, the maximum sentence for both sexual interference and sexual assault when the Crown proceeded by indictment was ten years. There were no applicable mandatory minimums.

[220] The penalties for both offences have since increased.[7] Now, when the Crown proceeds by indictment, the current maximum sentence for both sexual assault on a person under the age of 16 and for sexual interference is 14 years. A mandatory maximum sentence of one year applies to both offences.

[221] There is no doubt that the changes in the legislation since J.T. committed the predicate offences reflect society’s increasing awareness of the profound harm caused to children by sexual offenders and the need for such offences to be properly denounced and deterred: R. v. Stuckless, 2019 ONCA 504, at para. 112; Friesen, at para. 95.

[222] Despite this, pursuant to s. 11(i) of the Charter, J.T. is entitled to the benefit of the lesser punishment. Thus, the applicable maximum sentence of ten years applies for each offence for which J.T. is to be sentenced.

The Applicable Range

[223] In Friesen, at para. 99, the court explained that the successive increases in maximum sentences for these offences indicate “Parliament’s determination that sexual offences against children are to be treated as more grave than they ha[ve] been in the past.” Thus, at para. 100, the court explained that “to respect Parliament’s decision to increase the maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.”

[224] The defence argues that if the increase in the maximum sentence signals that an elevated sentencing range applies to offences committed after the legislative change, then the converse must also be true. That is, the defence argues that for offences committed prior to the legislative change, the increased sentencing range does not apply.

[225] In my view, the defence position is not strictly supported by a review of Friesen. At para. 74, the court in Friesen specifically cites Pepall J.A. in Stuckless (2019). At para. 112 of that decision, Pepall J.A. wrote that, although the increased maximum sentences did not apply to historical offences and the amendments were not a “standalone justification for imposing a higher sentence”, the legislative amendments “indicate a significant societal recognition of the gravity of sexual offences against children.” She further explained that:

This recognition is not an alteration of weight to be assigned to a factor, or justification for imposing a higher sentence than is fit in the circumstances. Understanding the gravity of the offences in a general sense is an important aspect of imposing a proportionate sentence. It serves to contextualize the seriousness of the offences and recognizes that sentencing should not be divorced from a contemporary understanding of the harm occasioned by the offences.

[226] In my view, it is clear from Friesen and Stuckless (2019) that when considering what would be a just and proportionate sentence in a historical case, the court cannot be oblivious to the developing understanding of the harm caused by sexual offending against children. That modern knowledge must necessarily infuse the analysis with respect to the gravity of the offence and a determination of a proportionate sentence.

[227] That said, J.T.’s offending continued until 2001. By then, society was acutely aware of the harm caused by the sexual abuse of children. As expressed by Moldaver J.A. (as he then was) in R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061, at para. 34:

In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

[228] D.D. represents the best articulation of the range at the time that J.T. offended. At para. 44, Moldaver J.A. stated:

I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[229] In the very recent Friesen decision, the court commended D.D. as an example of appropriate appellate guidance on the correct range in child sex assault cases (with the caveat that, at the time D.D. was released, the statutory amendments elevating the maximum sentences were not yet in effect). In urging lower courts to follow the example of D.D., the court explained that it was striving to drive home a “message” that “upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional cases”: at para. 113. Further, the court made clear that while the range set out by Moldaver J.A. provides useful guidance, it was not meant to be and should not act as a cap on sentences: Friesen, at para. 114; see also Stuckless (2019), at para. 62, per. G. Huscroft J.A. Each case must be assessed on its own facts, and, in some cases, a more severe sentence than the range suggested in D.D. may be called for.

The Correct Approach to Sentencing on Multiple Counts

[230] In Stuckless (2019), the court directed that when sentencing on multiple counts with multiple victims, the correct approach requires the sentencing judge at the outset to identify the gravamen of the entirety of the offending behaviour and the total sentence to be imposed, before considering the appropriate sentence for each offence within the confines of that total: see also R. v. Jewell, 1995 1897 (ON CA), [1995] O.J. No. 2213 (C.A.).

[231] Thus, I must consider what the appropriate global sentence is for J.T.’s overall offending before apportioning specific sentences to each offence with respect to E.F., N.F. and M.F.

Analysis Regarding the Gravamen of the Entirety of J.T.’s Offending

[232] There are numerous aggravating features in this case that demonstrate the grave nature of the entirety of J.T.’s offending and his significant moral blameworthiness.

[233] J.T. stood in a position of trust to all three victims. He was their stepfather. Yet, rather than providing love and support, he used each girl as a sexual object to satisfy his perverse whims.

[234] N.F. was only 10 when J.T. first started being sexually inappropriate with her, and he had vaginal intercourse with her when she was only 11. J.T. began having sex with M.F. when she was just 14. E.F. was only 12 when he had vaginal intercourse with her.

[235] The sexual abuse included vaginal, oral, anal and attempted anal intercourse. The abuse was pervasive and invasive.

[236] The abuse was also frequent and enduring. J.T. sexually abused E.F., M.F. and N.F. for many years. He treated the girls like sexual objects that he could use whenever and however he wanted. The abuse took place multiple times a week. J.T. committed sexual assault many hundreds of times.

[237] The sexual abuse took place in the victim’s home. A place where they should have felt safe and secure instead turned into a place of torment.

[238] J.T. also took advantage of the fact that their mother worked long hours to earn money to support the family in order to abuse the victims.

[239] J.T. also used the victim’s love of their mother as a cudgel to force them to comply with his sexual whims. If they complied with his demands, he was nice to their mother; if they refused, he was cruel, violent and caused chaos in their home. They submitted to J.T.’s sexual demands so that their mother would not suffer.

[240] J.T. used other violence, coercion and extortion to force the victims to submit to his sexual demands.

[241] J.T. also used bribery and manipulation to get the victims to comply with his demands. If the girls needed money for school lunches or events, or if they wanted things like clothes or CDs, they had to have sex with J.T. He exploited their vulnerabilities as children who wanted to have the same material things as their peers.

[242] J.T. showed pornography to each victim. Even though they were children, he plied them with alcohol to facilitate his abuse.

[243] J.T. taped himself sexually abusing the victims. Creating a permanent visual record of the victims’ sexual degradation exacerbated the harm he caused. J.T. also engaged in voyeurism by secretly taping E.F. being intimate with her boyfriend. He then showed the tape to the other victims as a prop when he was abusing them.

[244] J.T. abused both M.F. and N.F. in rapid succession at his friend C.O.’s apartment. The girls had to wait in a bathroom, knowing that their turn was next. This added to the humiliation and degradation of both victims.

[245] J.T. also forced M.F. to perform fellatio on him while his friend watched. This encounter particularly undermined M.F.’s dignity.

[246] Despite being charged with sexual assault in 1994, J.T. continued his abuse. Despite E.F. telling her mother about the abuse in 1999, J.T. continued to assault M.F. and N.F. He continued the sexual abuse after entering into a peace bond in relation to E.F. in the spring of 2001. J.T.’s sexual abuse was undeterred and unrelenting. But for the fact that the police finally became involved in 2001, J.T. would have continued his sexual exploitation of the victims.

[247] J.T. caused incalculable harm to each victim individually. Moreover, by abusing three sisters, J.T. caused harm not just to each victim alone, but to their relationship as sisters and to the entire family unit. The shame, embarrassment and humiliation that each victim endured is something that they find difficult to discuss with each other, but which haunts them. The victims also wrestle with their feelings towards their mother, whom they love, yet blame for not stopping the abuse. M.C. herself, as was apparent when she testified before me, is wracked with guilt. The family will always be scarred by J.T.’s predatory sexual abuse of the three sisters.

[248] The totality of the circumstances in J.T.’s case clearly demands an exemplary sentence.

[249] At the time that J.T. committed his offences, there was no statutory presumption, as there is now in s. 718.2(a)(ii.1), that abuse against a person under the age of 18 is an aggravating factor. Nor did the Criminal Code provide, as it does now in s. 718.01, that in offences involving the abuse of children under the age of 18 years the court shall give primary consideration to the objectives of denunciation and deterrence. But even without such pronouncements from Parliament, it was obvious at the time of J.T.’s offending that these sentencing objectives had to be paramount.

[250] Moldaver J. made clear in D.D., at para. 34, that then, as now, denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing for offenders who abuse children: see also R. v. Woodward, 2011 ONCA 610, at para. 39.

[251] In J.T.’s case, the overall gravity of his offending is extremely serious, and his moral blameworthiness is significant. In my view, the appropriate global sentence is 16 years. While this is in the mid-double digits, rather than the low-double digits contemplated in D.D., the aggravating factors in J.T.’s case warrant such a sentence. Again, the range in D.D. was not meant to act as a cap.

[252] In J.T.’s case, given the numerous aggravating factors, a heavy sentence is required to give voice to the paramount sentencing principles of denunciation and deterrence. It must be said in no uncertain terms that J.T.’s conduct was abhorrent. Others who may be inclined to abuse children must get the message that there will be significant consequences if they do. Further, a message must be sent to J.T. himself that if he reoffends against a child, the penalty will be severe.

[253] Moreover, although this is an odd situation, given J.T.’s significant pre-sentence custody, a 16-year sentence gives consideration to the objective of separating the offender from society. I reasoned in the dangerous offender application and the long-term offender application that the Crown had failed to establish that J.T. posed the tremendous risk or substantial risk required for either of those designations. In the absence of those risks being established, the sentencing objective of separating offenders from society must be weighed with the other sentencing objectives and principles.

[254] And here, any sentence must recognize that J.T. is a first offender with the potential to live a prosocial life. As a result, the objective of rehabilitation and the principle of restraint must also be given consideration.

[255] I conclude that a global sentence of 16 years properly balances the relevant sentencing principles and objectives and is a fit and proportionate global sentence.

Sentences to be Imposed on the Individual Counts Considering the Principle of Totality

[256] Each victim suffered significant individual harm as a result of J.T.’s abuse. And as made clear in Woodward, at paras. 37-39, the principles in D.D. apply with “equal force” when the offending conduct involves one victim. When considering individual counts, however, as explained in Stuckless (2019), at para. 80, the imposition of consecutive sentences should not lengthen the sentence beyond what is appropriate. In this case, if I were to order that each sentence imposed run consecutively, the total sentence would exceed what would be just and proportionate. As a result, as set out below, I have determined that some sentences should be served concurrently.

[257] I have already outlined the abuse that the victims endured in my analysis with respect to the appropriate global sentence. There is a risk, however, when determining the global sentence first, that the specific harm suffered by each victim will be lost in the summary of overall guilty conduct. Thus, while repetitive, the abuse perpetrated by J.T. against each victim must be addressed and specifically acknowledged.

[258] J.T. abused M.F. from sometime in 2000, when she was 14 years old, until the summer of 2001. While the abuse he subjected M.F. to did not occur for as prolonged a period as with E.F. and N.F., and while she was older when the abuse began, she still endured his sexual attacks several times a week for years. As she testified at trial, M.F. felt that she was J.T.’s sexual “servant”. J.T. frequently subjected M.F. to forced vaginal, oral and anal intercourse. He used violence, threats and extortion to achieve his sexual goals. He at times plied M.F. with alcohol to facilitate his abuse. He taped her as he sexually abused her. He forced her to watch pornography. M.F. also suffered from the shame and pain associated with being sexually abused while N.F. waited for her turn, and the guilt from feeling like she should have done more to protect her youngers sister from J.T.’s vile abuse. J.T. forced M.F. to perform fellatio on him while his friend watched and masturbated.

[259] In my view, considering all of the factors, a sentence of seven years on the sexual assault (Count 1) against M.F. is fit and proportionate. This sentence gives primary consideration to the objectives of denunciation and deterrence. It also gives some weight to the sentencing principle of restraint and the objective of rehabilitation, which cannot be ignored given that J.T. is a first offender and in light of the other mitigating factors in this case. This sentence will be consecutive to Count 6.

[260] Similarly, I find that a sentence of seven years for the offence of sexual interference (Count 2) against M.F. is appropriate. Having regard to the principle of totality, I have determined that this will be concurrent to Count 1.

[261] J.T. sexually abused E.F. over the course of six years, from 1993 to 1999. She was only 12 years old when he had vaginal intercourse with her. He subjected her to vaginal, oral and anal intercourse several times a week. J.T.’s sexual abuse of E.F. was prolonged and frequent. He used violence, coercion, extortion and manipulation to further his sexual abuse. He taped E.F. being intimate with her boyfriend without her knowledge and then shared that video with her sisters. He gave her alcohol and showed her pornography. He taped himself sexually abusing her. J.T. robbed E.F. of her innocence and a normal childhood.

[262] In my view, a sentence of nine years for the offence of sexual assault (Count 6) against E.F. is warranted. Again, this sentence gives primary consideration to the objectives of denunciation and deterrence, while still recognizing the importance of the sentencing principle of restraint and the objective of rehabilitation, given that J.T. is a first offender. For the offence of sexual interference (Count 7) regarding E.F., I find that a nine-year sentence is fit and proportionate. Having regard to the principle of totality, this will be concurrent to Count 6.

[263] J.T. began touching N.F. in a sexually inappropriate manner when she was only 10 years old and subjected her to forced vaginal intercourse when she was only 11. He sexually abused her for three to four years. While the abuse did not occur over as lengthy time as with E.F., J.T. subjected N.F. to frequent sexual abuse, including vaginal, oral and attempted anal sex. J.T. used violence, threats, extortion and bribery to further his sexual offending against N.F. Sometimes he would become violent with the family dog if N.F. did not agree to his sexual demands. He also taped himself having sex with her, showed her pornography and showed her a video of her sister E.F. having sex.

[264] Having regard to N.F.’s young age when J.T. began abusing her and the prolonged, frequent and invasive nature of his abuse, in my view a sentence of eight years for the sexual assault (Count 4) is warranted. Similarly, I find that eight years is a fit and proportionate sentence for the offence of sexual interference (Count 5) against N.F. However, having regard to the principle of totality, both counts will be concurrent to Count 6. Ordering that the sentences in relation to N.F. are to run concurrently is not to meant to minimize or diminish the harm caused by J.T. to N.F. but is necessary to ensure that the total sentence is fit and proportional.

[265] Thus, the global sentence, before taking into consideration any presentence custody, is 16 years. The sentence should be structured as follows:

• Count 1: sexual assault (M.F.): seven years (consecutive to Count 6);

• Count 2: sexual interference (M.F.): seven years (concurrent to Count 1);

• Count 4: sexual assault (N.F.): eight years (concurrent to Count 6);

• Count 5: sexual interference (N.F.): eight years (concurrent to Count 6);

• Count 6: sexual assault (E.F.): nine years;

• Count 7: sexual interference (E.F.): nine years (concurrent to Count 6).

[266] I turn now to the issue of how much presentence custody should be credited to J.T.

H. Analysis Regarding Presentence Custody

[267] J.T. has spent a significant amount of time in custody on this matter. As of today’s date, he has been in custody for 3,905 real days, which works out to approximately 10 years and eight months.

[268] When J.T. committed the predicate offences, s. 719(3) of the Criminal Code provided that in “determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.” Under this provision, sentencing judges had broad discretion to award credit for presentence custody. There were “no restrictions on the reasons for giving credit, nor the rate at which credit was granted”: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 20.

[269] The Supreme Court approved credit of two days for every day in custody, although noted that there was no “rigid formula”; different ratios could be applied depending on the conditions of the offender's presentence detention: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 45.

[270] As a matter of principle, it fell to the offender seeking to invoke the discretion conferred by s. 719(3) to demonstrate that credit for presentence custody should be awarded. That said, in reality there was little controversy in most cases that credit should be assigned: R. v. Evans, 2019 ONCA 715, 377 C.C.C. (3d) 231, at para. 286. Deviation from the standard 2:1 credit usually required some identifiable and articulated reasons: R. v. Gibbs, 2007 BCCA 241, 221 C.C.C. (3d) 271, at para. 22; R. v. Sparham, 2007 MBCA 84, at para. 7.

[271] In February 2010, the Truth in Sentencing Act, S.C. 2009, c. 29 (TISA), came into effect and changed the way that courts approach presentence custody. The TISA amended s. 719 of the Criminal Code to impose an upper limit, a so-called “hard cap”, on the ratio at which credit for presentence custody could be granted. The maximum ratio is now 1.5:1. Section 5 of the TISA however, stipulates that ss. 719(3)-(3.4) of the Criminal Code only apply to individuals charged after the date that the subsections came into force. J.T., of course, both offended and was charged before the date that the subsections came into force.

[272] The Crown and defence largely agree with respect to how most of J.T.’s custody should be credited.

[273] First, the Crown and defence agree that J.T. is entitled to a 2:1 credit for the 496 days he spent in presentence custody prior to the TISA coming into force in 2010. That amounts to the equivalent of 992 days.

[274] Second, the Crown and defence agree that J.T. should be credited on a 1:1 basis for the time he spent serving sentence in the penitentiary before his matter was sent back for a new trial. That amounts to 1,384 days.

[275] Third, the Crown and defence agree that J.T. is entitled to an additional seven months (214 days) credit to account for particularly harsh conditions related to lockdowns in the provincial institution and the COVID-19 pandemic.

[276] Finally, the Crown and defence agree that J.T. is entitled to presentence credit of at least 1.5:1 for the 2,025 days that he has spent in presentence custody since 2010, when the TISA was enacted. That is the equivalent of 3,038 days.

[277] Thus, both sides agree that, at a minimum, J.T. is entitled to presentence custody in the amount of 5,628 days, or approximately 15 years and five months.

[278] The defence, however, urges me to impose the higher presentence credit rate of 2:1 for the 2,025 days that J.T. has spent in custody since the TISA came into effect. That is the equivalent of 4,050 days and would result in a total credit of 6,640 days, or 18 years and two months.

[279] In R. v. R.S., 2015 ONCA 291, the court made clear that offenders such as J.T., who were charged before the TISA came into effect, are constitutionally entitled to be sentenced under the old regime, subject to arguments that the credit should be limited.

[280] I agree that J.T. should be awarded credit on a 2:1 basis for the time he spent in custody after the TISA came into effect and before he absconded. That amounts to 47 real days, which is the equivalent of 94 days. However, in my view, a different analysis applies to the timeframe after he fled his trial. There are three factors that militate towards a finding that J.T. is not entitled to a 2:1 presentence custody credit.

[281] First, J.T. absconded from his second trial. But for his own actions in fleeing, J.T. would not have wound up in custody awaiting his third trial. In my view, J.T. should not reap a ‘dead time’ windfall because of his own criminal misconduct in fleeing.

[282] Second, J.T. delayed his case by changing lawyers several times. He was entitled to change counsel, but the numerous delays caused by his actions should be taken into consideration when determining the appropriate presentence custody credit.

[283] Third, J.T. failed to even try to access any programs for several years while at the Toronto East Detention Centre. Given that, his argument for enhanced credit because of lack of programming must be viewed with some scepticism.

[284] Looking at these factors, in my view J.T. should not be awarded with credit on a 2:1 basis for much of the time that he spent in custody after he was apprehended in BC. That said, when calculating credit, I must be cognizant that some delays in this matter were not caused by J.T.: R. v. Rezaie, (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713 (C.A.).

[285] Looking at all of the circumstances, I find that J.T.’s presentence custody from the date he was returned to custody in Ontario after absconding should be calculated on a 1.6:1 basis. He has been in custody for 1,978 real days since that time. On a 1.6:1 basis, that is the equivalent of 3,165 days.

[286] The 1.6:1 calculation does not take into consideration the additional enhanced credit of 214 days that J.T. is being given as a result of lockdowns and COVID-19.

[287] Thus, the total credit that J.T. is entitled to amounts to 5,849 days, or approximately 16 years. This chart that follows sets out the actual days in custody and the credit given for each discrete period.

Period

Reason

Real Days

Credit

Total

May 16 to May 30, 2003

From arrest to release on bail

15 days

2:1

30 days

February 12, 2007 to June 6, 2008

From conviction at first trial to sentencing before J. Wilson J.

481 days

2:1

962 days

June 7, 2008 to March 21, 2012

Penitentiary sentence

1,384 days

1:1

1,384 days

March 22, 2012 to May 7, 2012

From order for new trial to release on bail

47 days

2:1

94 days

August 25, 2015 to January 22, 2021

From being returned to Ontario after absconding to end of dangerous offender hearing

1,978 days

1.6:1

3,165 days

Enhanced credit because of lockdowns and COVID-19

7 Months

(214 days)

214 days

Total real days

3,905

Total credit

5,849

[288] The presentence custody should be allocated as follows. On Count 1, seven-years’ presentence custody should be noted, and J.T. will receive an additional sentence of one day.

[289] On Count 6, nine-years’ presentence custody should be noted, and J.T. will receive an additional sentence of one day.

I. Terms of Probation

[290] Following his sentence, I am placing J.T. on probation for three years, with the following terms:

• You must keep the peace and be of good behaviour.

• You must appear before the court when required to do so.

• You must notify the court or probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change in employment or occupation.

• You must report as directed to a probation officer within two (2) working days of your release from custody and, after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

• You must cooperate with the probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to the probation officer on request.

• Your reporting requirement ends if and when you are deported from Canada.

• You must live at a place approved of by the probation officer and not change that address unless you are deported or without obtaining the consent of the probation officer in advance.

• You must advise the Canada Border Services Agency (CBSA) of your address within 48 hours of your release from custody and advise the CBSA of any change of address within 24 hours of any change of address.

• You must report as directed by the CBSA.

• You must remain in Ontario unless you have prior written permission from the court or probation officer to leave the province, or if you have been deported.

• You must not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with E.F., N.F., M.F. or M.C.

• You must not be in the company of, or communicate directly or indirectly, by any physical, electronic or other means, with persons under the age of 18 years, unless in the presence of another person(s) approved of in writing and in advance by the probation officer.

• You must not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

• You must attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for anger management, pedophilia and sexual offending.

• You must sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

• You must provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

J. Ancillary Orders

Section 161 Orders

[291] The Crown is seeking prohibition orders pursuant to s. 161 of the Criminal Code. As flagged above, this issue is complicated given the historical nature of J.T.’s sexual offending. At the time J.T. committed his offences, s. 161(1) of the Criminal Code provided as follows:

161. (1) When an offender is convicted ... of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender ... in addition to any other punishment that may be imposed for that offence ... shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; or

(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.

[292] In 2012, this provision was amended by the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 16(1), (SSCA). Subsections 161(1)(a) and (b) remained unchanged, but the SSCA modified s. 161(1)(c) to include prohibiting all contact with young persons, no matter the means. The SSCA also introduced a new internet prohibition pursuant to s. 161(1)(d), which gave sentencing judges authority to prohibit offenders from using the internet or other digital network for any purpose, not just for contacting children, unless the offender does so in accordance with conditions set by the court.

[293] Given s. 11(i) of the Charter, the Supreme Court found in R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, that the modified s. 161(1)(c) did not apply retrospectively to offenders who committed their offences prior to the coming into force of the 2012 amendments. However, the court took a different position with respect to s. 161(1)(d). While the retrospective application of this subsection violated s. 11(i) of the Charter, it was saved by s. 1 as a reasonable compromise. Therefore, s. 161(1)(d) applies to offenders who committed their offences before the SSCA came into force.

[294] Another provision, s. 161(1)(a.1), was added to the Criminal Code on September 19, 2014 by An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders), S.C. 2014, c. 21, s. 1. This subsection allows the court to order that the offender be prohibited from being within two kilometres or any other distance specified from any dwelling-house where the victim identified in the order ordinarily resides, or of any other place specified in the order. The court did not consider s. 161(1)(a.1) in K.R.J. Moreover, it does not appear that any courts have considered whether a prospective application of this subsection is consistent with s. 11(i) of the Charter. In my view, considering the reasoning in K.R.J., this section should apply retrospectively.

[295] As a result, the potential prohibition orders available to be imposed against J.T. are ss. 161(1)(a),(b) and (c) as they were at the time J.T. offended, s. 161(1)(a.1) and the current s. 161(1)(d).

[296] The court in K.R.J. explained that s. 161 orders are not available as a matter of course. Such orders should only be imposed when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the court is satisfied that the specific terms of the order are a reasonable attempt to minimize that risk. Further, the content of the order must carefully respond to an offender’s specific circumstances.

[297] In my view, there is no evidentiary foundation to impose a s. 161(1)(a) prohibition order in this case. J.T.’s offending did not take place in any public place, such as a park or swimming area. There is no suggestion that he has ever attempted to sexually abuse a child in such a context.

[298] On the other hand, I find that it is appropriate, pursuant to s. 161(1)(a.1), to impose a lifetime order prohibiting J.T. from being within 500 metres of any place he knows E.F., N.F. or M.F. to reside, or any place he knows them to be. The victims deserve to be protected from J.T.

[299] Further, it is appropriate to impose a s. 161(1)(b) order prohibiting J.T. from seeking, obtaining or continuing any employment, whether or not it is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years, for life. J.T. exploited his position of trust as a stepfather to abuse three young girls. Given that J.T. is a pedophile with limited treatment, in my view this order is reasonable and necessary.

[300] I also find that it is appropriate to make an order pursuant to both ss. 161(1)(c) and (d) prohibiting J.T. from using a computer to communicate with a person who is under the age of 16 unless supervised by an adult aware of his criminal convictions, for life. While there is no suggestion that J.T. used a computer in his sexual offending, he did use the video technology available in 2001 to facilitate his abuse.

[301] Since the time J.T. committed the predicate offences, the sexual exploitation of children via the internet has increased dramatically and technology has “enabled new forms of sexual violence against children”: Friesen, at para. 47. J.T. is an untreated pedophile. His sexual exploitation of the sisters was frequent, long-term, escalating and varied. While I could not find that J.T. poses the substantial risk of reoffending required for a long-term offender designation, based on the facts and the science before me he certainly poses a risk. And while the risk that J.T. might seek to sexually exploit a child using a computer may be low, there would be profound adverse consequences if that risk materialized. Thus, in my view, prohibiting J.T. from communicating with a person under the age of 16 over the computer unless supervised by an adult aware of his criminal convictions is reasonable, necessary and minimally intrusive.

[302] Therefore, pursuant to s. 161(c), J.T. is prohibited for life from using a computer system for the purpose of communicating with a person under the age of 16, unless supervised by an adult aware of his criminal convictions.

[303] Pursuant to s. 161(d), J.T. is prohibited for life from using the Internet or other digital network to communicate with a child under the age of 16, unless supervised by an adult aware of his criminal convictions. Other legal use of the Internet and digital networks is permitted by this order.

DNA Order

[304] Sexual assault and sexual interference are primary designated offences. Pursuant to s. 487.051(1) of the Criminal Code, I order that J.T. provide samples of his bodily substances for forensic DNA analysis.

Weapons Prohibition Order

[305] A mandatory weapons prohibition under s. 109 of the Criminal Code also applies. Pursuant to s. 109(2), J.T. is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Further, pursuant to s. 109(3), he is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life.

Sex Offender Information Registration Act Order[i]

[306] Pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, J.T. is required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.

Justice Heather McArthur

Released: January 22, 2021

Addendum: The initial reasons have been amended so that the concurrent sentences better reflect the intended global 16-year sentence.

COURT FILE NO.: CR-05-PR-000241-000

DATE: 20210122

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.T.

REASONS ON DANGEROUS OFFENDER APPLICATioN

Justice Heather McArthur

Released: January 22, 2021

[1] Both sides originally agreed that, pursuant to Kienapple, the three sexual assault charges should be stayed. However, in J.T.’s case, staying all the sexual assault charges would lead to the unintended effect of precluding the Crown from seeking a dangerous offender designation pursuant to s. 753(1)(b) based on J.T.’s pattern of failing to control his sexual impulses. As a result, I determined that I would stay the two charges of sexual exploitation in relation to M.F. and E.F., which, at the time that J.T. committed his offences, had the lowest maximum penalty of five years. To be consistent, I am not staying any charges in relation to N.F., as J.T. did not face a count of sexual exploitation in relation to her. As a result, the two offences upon which J.T. will be sentenced are the same for each victim: sexual assault and sexual interference.

[2] The reasons for the delay in getting to trial are set out in my decision dismissing a s. 11(b) application: R. v. J.T., 2021 ONSC 365.

[3] Counsel for the Department of Justice, on behalf of the Minister of Public Safety and Emergency Preparedness, appeared before me to argue that I lacked jurisdiction to make the order sought by the Crown. Given my ultimate conclusion in this matter, I do not need to weigh into this issue. That said, I am inclined to agree that I do not have jurisdiction to stay the deportation order.

[4] The circumstances surrounding the Crown’s decision to forgo its reliance on Dr. Kolla and instead call Dr. Wilkie as a witness is set out in my reasons on the defence abuse of process motion: R. v. J.T., 2021 ONSC 364.

[5] The Spousal Assault Risk Assessment Guide (SARA) is a structured professional judgment tool that includes risk factors that are empirically related to future intimate partner or family violence, which is defined as the actual, attempted or threatened physical harm of a current or former intimate partner. Dr. Wilkie said that she could not fully score the SARA because of a lack of information about J.T.’s current attitudes.

[6] In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, the court said that where a long-term offender application is made, the sentencing judge should first determine the appropriate sentence. However, in J.T.’s case, there is no suggestion that it would be appropriate to impose a sentence (before taking into account presentence custody) of less than two years for the predicate offences. Thus, in my view, it is appropriate to first consider the long-term offender application before considering what the appropriate fixed sentence might be.

[7] In 2005, Parliament enacted Bill C-2: An Act to amend the Criminal Code (protection of children and other vulnerable persons), S.C. 2005, c. 32. This Act added mandatory minimum sentences for certain sexual offences against children, including sexual interference, one of the offences at issue in this case. Following Bill C-2, sexual interference was subject to a 45-day mandatory minimum sentence if the Crown proceeded by indictment. Bill C-2 also amended the Purpose and Principles of Sentencing portion of the Criminal Code by making abuse of a person under the age of 18 an aggravating factor, and directing courts to give primary consideration to the objectives of denunciation and deterrence in sentencing for offences involving abuse of a person under the age of 18:Criminal Code, ss. 718.01 and 718.2(a)(ii.1).

In 2012, Parliament increased the mandatory minimum sentences for sexual offences involving children introduced by Bill C-2 through Bill C-10, known as the Safe Streets and Communities Act, S.C. 2012, c. 1. The mandatory minimum penalty for sexual interference was increased from 45 days to one year if the Crown proceeded by way of indictment. For sexual assault where the Crown proceeded by indictment and the victim was under the age of 16, the maximum sentence was increased to 14 years and a mandatory minimum sentence of one year applied.

In 2015, Parliament increased the maximum sentence for sexual interference to 14 years through Bill C-26, known as the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23. Bill C-26 also introduced s. 718.3(7) of the Criminal Code, which requires the court, subject to the principle of totality, to impose a consecutive sentence where an offender is sentenced at the same time for sexual offences committed against more than one child: s. 718.3(7) and s. 718.2(c).