Her Majesty the Queen v. R.D., 2021 ONSC 4158

COURT FILE NO.: 08-5049

DATE: 2021/06/08

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Marie L. Dufort, for the Applicant

Applicant

• and -

R.D.

Lisa Jorgensen and Stephanie Di Giuseppe, for the Respondent

Respondent

Subject to any further Order by a court of competent jurisdiction an Order pursuant to s. 486. 4 of the Criminal Code has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

REASONS FOR JUDGMENT ON A DANGEROUS OFFENDER APPLICATION

Maranger J.

Overview:

1. On October 21, 2009, following an 11-day jury trial R.D. was found guilty of three offences that occurred on August 2, 2008, including: one count of sexual assault causing bodily harm, one count of choking, and one count of unlawful confinement. The jury found R.D. not guilty of threatening, and aggravated sexual assault.

2. Following the findings of guilt, the Crown informed the Court of its intention to bring a dangerous offender application. The hearing was conducted on and off over a period of several years.

3. On January 16, 2013 the court found that R.D. was a dangerous offender and sentenced him to an indeterminate period of custody. No other sentencing option was considered.

4. R.D. appealed both his conviction and designation/sentence. The appeal was heard by the Ontario Court of Appeal on November 13, 2019 and a decision was rendered by the Court on December 4, 2019.

5. The Court of Appeal upheld the convictions but sent the matter back for a new hearing on the Dangerous Offender designation and sentence: R. v. R.D., 2019 ONCA 951. The sentencing was an error as the Code had been amended to allow the court to consider options upon designating someone a dangerous offender besides an indeterminate period of incarceration.

6. R. v. R.D. held that a redetermination was to be made in accordance with the amended provisions under Criminal Code s. 753, and although the test for a Dangerous Offender designation had not changed, they held that both the designation and the appropriate sentence be considered de novo based upon an evidentiary record that was updated since 2011. At paras. 44, 46 and 47 the court indicated as follows:

[44] In R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, the Supreme Court considered several issues regarding the dangerous offender provisions, including their constitutionality. One of the issues before the Court was whether a sentencing judge is entitled to consider evidence of future treatment prospects when deciding whether to designate an offender as opposed to when imposing a sentence. Côté J., writing for the Court, concluded that a sentencing judge could have regard to future treatment prospects when deciding whether to designate an offender.

[46] It is evident from the foregoing that there is significant evidentiary overlap between the two stages of the dangerous offender process. If we accede to the Crown’s submission, the decision on the first stage of the process would be based on evidence that was current as of 2011. The second stage would necessarily require fresh evidence that would update the court on what has happened since the designation.

[47] It is possible that a judge conducting a new sentencing only hearing would be placed in a position where fresh evidence would lead the judge to find that the appellant should not be designated a dangerous offender. Yet, the Crown’s proposal means that the trial judge’s designation, which is based on evidence that may be out of date, would bind the sentencing judge.

7. Thus, I find myself in the unusual position of reconsidering a dangerous offender designation made over 8 years ago based upon what took place since the release of the decision on January 16, 2013. As the Ontario Court of Appeal indicated ‘It is possible that I find myself in a position where the fresh evidence since the original designation leads me to find that the appellant should not be designated a dangerous offender’.

8. In this regard the evidence consists almost entirely of records and testimony of how R.D. has performed in various institutions since being incarcerated.

9. If I find R.D. to be a dangerous offender, then I must consider the issue of whether he is to be given a determinate or indeterminate sentence.

10. R.D. has been incarcerated on the predicate offence in both remand detention centers such as the Ottawa Carleton Detention Centre (OCDC) and Federal Penitentiaries since August 2, 2008.

11. On April 29th, 2021 I gave my decision on these issues in the form of an endorsement. I did so in the interests of expediency, with the understanding that full written reasons would be provided within 60 days. What follows are those reasons.

Law on Dangerous Offender Applications:

12. The statutory provisions dealing with dangerous offender applications are set out in part XXIV of the Criminal Code. The relevant sections are as follow:

Pursuant to s. 752(a) serious personal injury offence means

(a) An indictable offence, other than high treason, treason, first degree murder or second-degree murder, involving

(i) The use or attempted use of violence against another person, or

(ii) Conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more

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

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

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

(ii) A pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or…

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

Section 753(4): If the Court finds an offender to be a dangerous offender, it shall

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

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

(c) Impose a sentence for the offence for which the offender has been convicted

Section 753(4.1): The Court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4) (b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence

Section 753(5): If the Court does not find an offender to be a dangerous offender,

(a) The court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the Court may either find that the offender is a long-term offender or hold another hearing for that purpose, or

(b) The court may impose sentence for the offence for which the offender has been convicted

Section 753.1(1): The Court may on application under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

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

(b) There is a substantial risk that the offender will reoffend, and

(c) There is a reasonable possibility of eventual control of the risk in the community

Section 753.1(2) (b) the court shall be satisfied that there is a substantial risk that the offender will reoffend if…

(b)The offender

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

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

Section 753.1(3) If the court finds an offender to be a long-term offender, it shall

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

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

Section 753.1(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.

13. I have considered the written argument presented by both counsel and find that the following focused legal principles are most applicable to this application.

14. The “protection of the public” is the primary purpose and overriding aim of the Dangerous Offender regime. The regime is designed to protect society from individuals who exhibit a pattern of dangerous behavior, which constitutes an unacceptable risk to public safety: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 at paras. 19, 23 & 29.

15. Section 753(1) of the Criminal Code mandates two statutory criteria be met to declare an individual a Dangerous Offender: 1) that the predicate offence be a serious personal injury offence as that term is defined in s. 752 of the Criminal Code and; 2) that the finding of dangerousness be based on a set criteria.

16. The Applicant and Respondent agree that the predicate offences are serious personal injury offences.

17. The Crown bears the burden of proving that the Respondent meets the criteria of s. 753(1)(a)(i) or (ii) beyond a reasonable doubt:

• R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at para. 25; R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569 at para. 31.

18. There has been an important shift in the way the legislation works when one considers the changes in 1977, 1997 and 2008. The trial judge’s discretion has narrowed in one sense: the judge no longer has discretion to not find a person a dangerous offender who fits the definition. But the discretion has been broadened in that the judge has wider sentencing options for a person who does come within the dangerous offender definition. These changes have an impact on the interpretation of the dangerous offender definition. In particular, the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender, however the possibility of successful treatment is significant in choosing the appropriate disposition: R. v. Szostak, 2014 ONCA 15.

Section 753(1)(a)(i)

i. A pattern of repetitive behavior that shows a likelihood of causing death or injury to other people or inflicting severe psychological damage on other people through a failure to restrain his behavior;

19. The necessary elements for finding a person to be a dangerous offender under s.753(1)(a)(i) are as follow:

a. A pattern of repetitive behaviour;

b. The offender has failed to restrain his behaviour;

c. There is a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour.

see also: R. v. Boutillier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 14.

20. The pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This requirement for similarity ensures that the gravity of the behavior giving rise to the Dangerous Offender is the same, alleviating the concern that the last straw could be a much more minor infraction could result in a dangerous offender designation. However, the offences need not be the same in every detail. That would unduly restrict the application of the section: R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963 at para. 40.

21. In a case where the index offence is a sexual assault, it can form part of a larger repetitive pattern of violence that may include other violent offences that are not sexual in nature where the underlying theme is one of the offender using violence and domination to get what he wants: R. v. J.W., 2016 ONSC 408, [2016] O.J. No. 383 at paras. 107-110.

22. In applying the procedural provisions governing dangerous offender application, courts have tended to require strict compliance by the Crown. In R. v. Neve, 1999 ABCA 206 at para. 182 the Court explained:

The court using it must then determine what future danger the offender presents to society. All the requirements of the dangerous offender legislation are carefully designed to ensure a proper balance between public safety and personal liberty. However, predicting future behaviour based on past conduct is an inexact science. It is precisely because this finding must rest at least in part on predictions of human behaviour - and often conflicting ones at that - that all safeguards of the Code must be adhered to.

See also: R. v. Parkes, 1956 CanLII 19 (SCC), [1956] S.C.R. 768.

s. 753(1)(a)(ii)

ii. A pattern of persistent aggressive behavior showing a substantial degree of indifference to the reasonably foreseeable consequences to other people of his behavior;

23. The necessary elements for finding a person to be a dangerous offender under s. 753(1)(a)(ii) are as follows:

a. A pattern of persistent aggressive behaviour;

b. The predicate offence must form part of that pattern; and

c. That pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his or her behaviour.

Boutilier at para 14.

24. Persistent aggressive behaviour under s.753(a)(ii) can be established in two different ways. The first is where there are similarities in terms of the kind of offences; the second is where the offences themselves are not similar in kind but are similar in result, in terms of the degree of violence or aggression inflicted on the victims. Either will suffice. The fact that an offender commits a variety of crimes does not mean a pattern does not exist. There is no requirement that the past criminal conduct be the same or similar in substance, order or arrangement: Neve at para. 111.

25. In Boutilier, the Supreme Court confirmed that the four criteria for a DO declaration developed in Lyons continue to apply. These are: (i) the offender has been convicted of a “serious personal injury offence;” (ii) the predicate offence is part of a broader pattern of violence; (iii) there is a high likelihood of harmful recidivism; and (iv) the violent conduct in intractable. Justice Côté, for the majority, at paras. 26-27 went on to explain:

The last two of these are future-oriented, and Justice La Forest explained them as follows:

Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-begin of others or, in the case of sexual offences, conduct causing injury, pain or other evil to the person. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable.

The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand "intractable" conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.

S. 753(1) b

…the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

26. The jurisprudence under this section is scant. It seems that expert evidence of an existing psychiatric sexual disorder is likely required before the dangerous offender designation can be made under this section. Furthermore, the condition would have to be intractable: R. v. D.V.B., 2010 ONCA 291, [2010] O.J. No. 1577 at para. 45; R. v. R.F.L., 2011 ONSC 1900, [2011] O.J. No. 3230; R. v. Byers, 2011 ONSC 4159; R. v. Judge, 2013 ONSC 6803, [2013] O.J. 5102.

Predicate offence and RDs history/criminal record and certain findings of fact from the original decision in January 2013:

The predicate offence:

27. The circumstances surrounding the commission of the predicate offences can be summarized as follows:

• On August 2, 2008 C. P., age 21 years, met up with some friends in the City of Ottawa to have some drinks.

• One of her friends, T. R., picked her up in his vehicle at 9:45 PM and drove to R. D.s apartment. They stayed and had a few drinks and then left his apartment afterwards they met up with a group and proceeded to the Byward Market area to a bar called "the Drink".

• Thereafter they went to the "Honest Lawyer" bar where they ordered a pitcher of beer. The complainant had many drinks and felt intoxicated. The group returned to the "the Drink" and stayed until almost closing. The group left and went to a pub called Daniel O'Connell's on Wellington Street until approximately 02:30 AM. The group, approximately 15 people, then returned to R.D.s apartment. Some people were drinking, and some were taking drugs.

• C.P. became quite intoxicated and believes that most of her friends left around 4 AM. She last remembers being in the kitchen with a couple of her friends.

• The next memory she had is waking up on the floor in R.D.’s bedroom. The door was closed, and R.D. was sitting on top of her. She was wearing her bra and leggings. She began to scream for help, hoping someone would hear. He then put his hand on her chest and pushed hard advising her not to scream and "that no one will help her".

• C.P. struggled with R.D. but he put his hands around her neck and started to choke her. She continued to scream. At one-point R. D.s roommate, R. C. opened the bedroom door and looked in. R. D. covered her mouth with his hand making it difficult for her breathe and waved his roommate away.

• He then put his hands around her neck and squeezed so hard she felt the veins pulsating in her neck and extreme pain in her eyes. The victim thought "her eyeballs were going to explode". She was choked so hard that she defecated on herself and all over the floor.

• She recalls that the accused punched her in the face over the right cheek. She continued to struggle with the accused on the floor. The victim believes she blacked out momentarily then woke up and he was straddling her.

• He then dragged her to the bed by pulling her bra strap and skin. At some point he bit her lip.

• She was made to sit on the bed, then R.D. knelt in front of her. He directed her to rub his penis. He then put his penis in her mouth telling "just do it no one can hear you." He then pushed her on to the bed, so she was lying flat on her back. She kept her eyes closed and her legs closed. The accused pried her legs apart and inserted his penis inside of her.

• R.D. then had sexual intercourse with her on four occasions. He had difficulty keeping an erection. He. went from sexual intercourse to having her fondle him, to having her perform fellatio, to having her sit on him and rub back and forth. He ejaculated twice, once inside of her and once when she was rubbing his penis. At some point she remembers that he attempted to sodomize her. She told him that she had to go to the bathroom. She wanted to get out of the room. He told her to urinate on a blanket in the corner. He told her she had no choice.

• He then made her take a shower as she had defecated during the assault and had soiled herself.

• C.P. then took a bus to her residence. R.D. supplied the bus ticket and rode the bus with her. He let her go once she reached her stop.

• Upon arriving home, she immediately told her parents that she had been raped. The police were then contacted and attended at her residence and took her to the hospital.

• The long-term consequences of the attack on the victim and her family were devastating. In C.P.s own words, taken from her victim impact statement she indicates:

I feel saddened and angry. When I look at myself, I no longer see the bright self-sufficient beauty anymore. In her place I see a fearful untrusting insecure half woman. I sleep unpeacefully a lot; eat when I can, maintain sanity by reading or doing crosswords while confining myself to my room.

RD’s Background and findings of fact leading to the original designation:

Family and Educational History

28. R. D. was born in Montréal, Québec, on [...], 1972 he is now 48 years of age. He is an only child. His father was a construction worker in the province of Québec. His parents separated in 1973 and divorced on August 10, 1977.

29. Following the separation, he resided with his maternal grandmother and mother in the city of Montréal. When he was four years old his mother and he moved to the New Waterford, Nova Scotia. They resided in New Waterford until 1990 when they relocated to Ottawa, Ontario.

30. He was, for the most part, raised by his mother, however spent a period of time in the custody of his father. During this time, he did not abide by his father's household rules. His early education and childhood years were spent in New Waterford, Nova Scotia.

31. R.D. attended public school in New Waterford, Nova Scotia. He completed grades one to three. In 1983 he was placed in a special education class due to difficulties with reading.

32. He was diagnosed at an early age as having dyslexia as well as attention deficit disorder.

33. It was reported by Dr. David Jones, a psychologist who authored a psycho-educational assessment on July 27, 1989, which included a conclusion that "upon entering school [R.D.] encountered academic problems from the outset.” The problems got increasingly more severe with time. At 10 years of age he began to exhibit temper tantrums for which he was repeatedly removed from the classroom. He also engaged in "acting out" behavior when asked to read in class. He indicated to Dr. Jones that "it was about this time that he was first charged and convicted of theft for which he was sentenced to four months probation.”

34. At 11 years of age he spent nine months in the McKay unit at the Nova Scotia General Hospital due to behaviour which his mother described as "unmanageable". The last mainstream public-school grade he attended was grade 3 and although he did attend public school for periods of time thereafter, he was enrolled in special-education classes.

35. At age 13 he was sent to Shelburne School for Boys in Nova Scotia for three months. He was then put back in mainstream public school, but as his mother explained in a psychosocial assessment dated January 10, 2010 "[R.D.] and School didn't get along" R. D.'s mother B.C. confirmed that her son stopped attending school when he was roughly 14 years of age.

36. B.C. was described in a Predisposition Report dated October 20, 1987 as "a concerned and committed mother" who indicated that "R.D. s behavior has resulted in contacts with a multitude of community services. She has sought the help of family physicians, social workers, special education teachers, and mental health teams".

37. In the same report B.C. also indicated that "she had little influence over his behaviour.” She reported that she is “unable to cope with her son's erratic behavior in the family home, indicating that R.D. is not one to follow household rules and regulations.”

38. Overall, R.D. appears to have very little education and may in fact be illiterate. B.C. remarried. She and her husband presently reside in Ottawa. She was employed as a social worker working with clients that have been diagnosed with psychiatric illnesses. She continues to support her son.

Medical History/Head Injury

39. R. D. suffered a significant medical event on March 2, 1991. He was hit in the head with a pipe, which resulted in a serious head injury including a depressed fracture of the left frontal temporal region and injury to the brain by bone fragments. He was in intensive care at the Sydney city hospital for two weeks and was discharged on March 14, 1991. While in hospital he developed seizures and was started on various medications including: Phenobarb, and Dilantin and Tranxene to combat seizures.

40. A neurological consultation was completed in May 1991, which indicated that his last CAT scan was "extremely good with only a small amount of blood still left in his brain."

41. In 1993 a neurological consultation was completed by Dr. Friedman who indicated "there are absolutely no signs whatsoever of neurological damage. His motor exam and reflexes were symmetrical, but he does have some degree of speech impediments which may be a result of his dyslexia.”

42. On January 15, 2001 a neurological consultation completed by Dr. C Simard indicated that R.D. suffered from "an organic brain syndrome and a personality disorder".

Criminal History

43. R.D. has been in trouble with the law since his childhood. What began as a repeat youthful offender, graduated to an adult criminal serving a lengthy term in a federal penitentiary. The predicate offences took place three to four years following his release from almost 12 years of incarceration. His record of offences, including the disposition for each can be summarized as follows:

• In 1983 (based upon a social work assessment report dated November 3, 1983) it appears that he was convicted of a theft for having stolen wallet, for which he was sentenced to 13 months’ probation.

• On January 12, 1987 he was convicted of break and enter and was put on probation for 12 months.

• On April 10, 1987 he was convicted for failing to comply with a probation order and was sentenced to 21 days open custody.

• On August 27, 1987 he was sentenced for taking a vehicle without owner's consent for which he was sentenced to six months’ probation and three months open custody.

• On September 24, 1987 was convicted of assault and was sentenced to two months open custody.

• On November 16, 1987 he was convicted of two counts of escape lawful custody and two counts of break and enter and commit an indictable offence for which he received a total of one year and four months secure custody.

• On May 26, 1988 he was convicted of escape lawful custody and received one-month consecutive closed custody.

• On December 18, 1991 he was convicted of escape lawful custody and given one-year probation.

• On January 16, 1992 he was convicted of possession of a prohibited weapon and sentenced to one-month incarceration.

• On March 31, 1992 he was convicted of assault with a weapon, possession of weapon and was given one day time served and two years’ probation.

• On May 21, 1993 he was convicted of sexual assault, break and enter and commit an attempt murder, possession of a weapon, and assault. He was sentenced to a total period of incarceration of 11 years and six months.

• On May 8, 2002 he was convicted of assaulting a peace officer (this took place while incarcerated), and he received a sentence of four months consecutive.

• On October 21, 2009 he was convicted of the predicate offences, namely sexual assault causing bodily harm, unlawful confinement, and choking.

• He was charged with having assaulted a peace officer, on November 30, 2009 and on November 8, 2011 while being held at the Ottawa Carleton Detention Centre. They were caught on video. The attack was vicious and seemingly unprovoked. Once the D.O designation was made these charges were stayed.

44. The offences prior to those committed on July 26, 1992, while numerous and sustained, cannot be categorized as the more serious type of offences seen in the criminal courts. While they are important in terms of determining the depth of R. D.s’ antisocial behavior, providing details for each and every offence is in my view unnecessary. Whether they are considered separately or as a whole is not determinative.

45. The offences committed on July 26, 1992 were the subject matter of a four-week trial in the Ontario Court of Justice. The date of conviction was May 21, 1993. The events that led to these particular convictions warrant closer examination, as they were extremely serious offences that predate the predicate offences.

46. The facts respecting these offences can be summarized from the trial and sentencing decision as follows:

Respecting the sexual assault

• During the early evening of July 25, 1992 R.D. went to "the Legends bar" located in the city of Ottawa. While at this bar he met the complainant, Ms. EG, as well as her uncle and his girlfriend, and her friend Sherry Brown. The group began socializing together.

• Early in the morning of July 26, 1992 they left the bar as a group with the intention of going to E.G.'s apartment for a drink.

• E.G. was having difficulties with her boyfriend Wayne and was under the impression she has found someone better when she met R.D. The complainant had consumed a fair amount of alcohol that evening.

• During the ride home they had consensual physical interaction including kissing and petting.

• They first went to Ms. Brown’s apartment then to E.G.'s apartment.

• Eventually R.D. and E.G. were alone in her apartment.

• They began with consensual kissing and touching, the complainant said she called a taxi for him when she started feeling somewhat uncomfortable with the situation.

• The sexual assault took place when the complainant indicated that at one-point R.D. put his arms around her from behind and kissed in a way which made her uncomfortable. He then attempted to put his hand into her panties at which point she told to stop, which he did.

• They then returned to the living room couch and after a while they started kissing again.

• At this stage the accused then started kissing her so start so hard her lip was crushed against her teeth. He grabbed her breasts harder and she started worming away. She describes herself as being pinned under his weight in a vulnerable position.

• She pleaded with him to slow down. He succeeded in getting her underwear pulled down to mid-thigh. He persisted despite her saying she had a big boyfriend. He penetrated her vagina with his fingers, she felt his penis on her thigh.

• Finally, the complainant heard a car horn. When the cab driver came to the door, she yelled out to the cab driver that the accused would be there in a minute. He placed his hand over her mouth and was reluctant to get off her. The manner with which it ended was by E.G. advising him that if he did not get off her, he she would simply tell the cab driver to come into the apartment.

• The trial judge, in her reasons for sentence, described the sexual assault in the following manner: "the accused attempted to rape the complainant following consensual kissing and touching between the two earlier that morning, but after she made it clear to him that she did not wish to pursue for the sexual touching. The act consists of digital penetration and attempted rape which was only interrupted by the arrival of a taxi driver." She classified it as a "date rape type of situation".

Respecting the break and enter assault and attempted murder.

• R.D. then took a cab to his home. Instead of going home he broke into his neighbour’s house and took a kitchen knife from the kitchen counter. He then proceeded upstairs to the bedroom of Mr. R. J. and Mrs. J. J. The couple were sleeping.

• Mrs. J. heard someone creeping up the stairs slowly. She nudged her husband and told him someone was in the house.

• Mr. J. awakened and shouted hoping that the individual might run off.

• Rather than run off R.D. ran to the bed and began striking Mr. J.

• Mrs. J. indicated that R.D. used one of his knees to pin her husband to the bed as he continued to strike him. She jumped from the bed and ran downstairs.

• Mr. J. stated that R.D. continued to raise his hand to strike him. He did not notice the knife until he raised his left shoulder to block the blows. It was then he realized R.D. had stabbed him with a knife in the left shoulder. He was using both arms to block the blows.

• Mrs. J, who was downstairs at this point, was looking for a cordless phone. She then ran to the front door and was attempting to unlock the door when R.D. appeared beside her. He pushed her with the side of his body away from the door and said, "no you don't".

• He stood in front of her and placed one hand on top of her head and the other hand on her chin to the opposite side, she believed he was going to twist her head and break her neck. She twisted away from him and ran to the kitchen and he followed.

• From there she made it to the living room and towards the patio door.

• He followed once again, and she slipped and fell scraping her leg.

• He once again grabbed Mrs. J. by the head using both his hands on the side and stated to her "just don't". She then saw him place his hand towards a cabinet or where there were knives. She believed R.D. was going to take a knife and kill her with it. She ran away and he followed through the front door.

• At this point Mr. J. came downstairs and started fighting with R.D. Mrs. J managed to escape. R.D. continued to strike Mr. J. as he held him against the counter. They fell to the floor and R.D. ended up on top of Mr. J. He kept holding R.D.'s shirt. At this point there was a conversation between the two in which R.D. stated, "you let me go and I will leave." Mr. J. released his grasp. R.D. got up and exited the residence by the front door.

• As described above, R.D. was in fact stabbing Mr. J. with a knife when he was in the bedroom. The knife broke following the very first blow; consequently, the injuries caused by the object were less severe. As the trial judge said in her reasons for sentence "it is nothing short of a miracle that Mr. J. survived this attack. Had the blade still been attached to the knife, and given the number times the number of areas where Mr. J. was struck in the chest area, it is likely, in my view, that he would not have survived the stabbing".: Nicholas J. reasons for sentence:

47. R.D. was sentenced to a total term of incarceration of 11 years and six months for these offences. While incarcerated he was sentenced to four months consecutive for assaulting a prison guard.

Behavioral History While Incarcerated

48. Apart from his childhood, R.D. has spent much of his life institutionalized by reason of his criminal behavior. Since he was 15 years of age, he has for the majority of time, been incarcerated in either a youth facility, a federal penitentiary, or in the case of the last three years at the OCDC.

49. His behavior while institutionalized, save and except for very brief periods, has been abysmal. This has been especially so while incarcerated in the federal penitentiary system. The recounting of his time in prison is replete with episodes of misconduct, violence, and segregation. While federally institutionalized for 11 years ten months he spent the better part of that time in maximum-security, with several periods of time in super maximum also known as the special handling unit located in Port Cartier, Québec. He was released from federal custody only after the warrant of committal had completely expired, attesting to the severity of his conduct.

50. At the time of the designation made in January 2013, I summarized R. D. behavioral history while incarcerated based upon the records filed, and the evidence heard during the course of the first hearing as devoid of any evidence to support the proposition that he is interested in programming or rehabilitation. He spent much of his time in isolation or segregation. He has participated in virtually no programs. He has not to this day accepted responsibility for the severity of his crimes. He seems to have defined himself while incarcerated through intimidation and violence.

51. In the first decision, I concluded at paragraph 64 as follows:

I come to the conclusion that RD is a dangerous offender and that the risk he poses in society cannot be managed by any type of supervision order. The evidence presented over the course of this hearing has satisfied me in no uncertain terms that the only available order is that he be declared a dangerous offender and he be sentenced indeterminately. My conclusion is founded upon the following:

• The predicate offense of sexual assault causing bodily harm is a serious personal injury offense. See section 752 (b) Criminal Code.

• The Crown has proven beyond a reasonable doubt that RD is a dangerous offender. The evidence presented at the hearing is overwhelming in this regard. The court could make this finding under either section 753 (1) (a) (i) or section 753 (1) (a) (ii) of the Criminal Code.

• Section 753(1)(a) (i) requires the court to find that there is “a pattern of repetitive behaviour by the offender, of which the offense for which he has been convicted forms part, showing a failure to restrain his behaviour and likelihood of causing death or injury to other persons or inflicting severe psychological damage on other persons through failure in the future to restrain his behaviour”. The facts and circumstances surrounding the predicate offense as well as the prior attempted murder conviction, together with the historic acts including but not limited to some of the uncontrolled and explosive violence displayed by R.D. while incarcerated support a finding of dangerousness under this specific section.

• Section 753 (1) (a) (ii) requires a finding that there is “a pattern of persistent aggressive behaviour by the offender, of which the offense for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour”. The predicate offense, some of the prior convictions, his actions while incarcerated, amply support a finding that R.D. is beyond a reasonable doubt a dangerous offender.

• In this particular case the more difficult issue is whether the risks posed by R.D. could be reduced to an acceptable level using the long-term offender/determinate sentencing provisions contained in the criminal code. In other words, can I be satisfied that there is a reasonable possibly ability of control of the risk he poses to the safety of society. Would a long-term supervision order be sufficient to alleviate the risks?

January 2013 to the present, has the Crown proven RD is still a DO:

52. As of April 2021, as I draft this decision, RD is 48 years of age and has spent more than half his life in correctional institutions with a great deal of his adult periods of incarceration in segregation.

53. At this hearing the court heard from the following witnesses on the specific subject matters identified:

• Tracey Gunton: is a 26-year veteran with the Ministry of the Solicitor General of Ontario who testified about programming in provincial institutions and referenced a 22-page document filed as Exhibit 1 entitled “overview of institutional services and community services for dangerous offenders/long-term offender” hearings.

• James Pearson: is employed with the Ministry of the Solicitor General of Ontario; he testified concerning transition from a custodial facility into community supervision and detailed some of the programs available through community supervision.

• Scott Munro: is the security manager at the Ottawa Carleton Detention Centre (OCDC) and is an employee of the Ministry of the Solicitor General. He explained some of the programming at the OCDC and how that institution generally operates. He also introduced into evidence inmate incident reports involving R.D. from the OCDC that occurred in March, April and October of 2020.

• Lindsay Maahs: is a supervisor of parole officers with the Ottawa area parole office. She is employed by Correction Services Canada (CSC) she testified about community supervision programs offered by CSC in the context of long-term supervision orders. She described the degree of supervision that such an order might entail as well as the process involved. She also described the intake process for persons who enter the federal penitentiary system. Including the assignment of a parole officer once in the penitentiary and once released.

• Emily Sarasas: is a correctional program officer with CSC. Through her the court received a 59-page document entitled “Correctional Service Canada reintegration program”. She gave detailed testimony concerning the nature and mechanics of the reintegration programs administered by CSC.

• Karen Thompson: is currently The Regional Manager of Conditional Release Programs. Through this witness a document was filed entitled “information package parole Board of Canada Ontario/Nunavut”. She testified about the Parole Board of Canada and how it operates, including details concerning composition, what evidence they can consider in making decisions and the types of decisions they can make including the conditions that can be imposed once someone is paroled.

• Patrick Barnes, Oluwacosin Oshilaja, Antonio Bernardo, Connor Kehoe, Ikechukwu Nebedum, and Cory Winters are all employed as correctional officers with various ranks at the Ottawa Carleton Detention Centre. They testified about specific incidents involving R.D. and described video evidence of the incidents that was played for the court.

• Emmanuel Rutsimbo: is employed by CSC. He gave testimony concerning the integration of programs that are provided within institutions. He described the new integration model that began in the year 2010 and was put into place and fully implemented in all institutions across Canada in 2017. He described that there are four streams including the sex offender stream. He testified concerning the mechanics of entry and completion into the high intensity sex offender program.

• Carmen Doyle: is an acting parole officer who works at the Atlantic Institution, a Federal Penitentiary located in Renous, New Brunswick. She described the role and responsibility it of a parole officer working within an institution. She was RDs parole officer from July 2017 to April 2018, and that again from February 2019 until RD left that institution.

• Dr. Derek Pallandi: is a forensic psychiatrist who testified and prepared a risk assessment report for the court with respect to R.D.

• Dr. Julian Gojer: is a forensic psychiatrist to testified and prepared a risk assessment report engaged by counsel for R.D.

• Dr. Klar: is a medical doctor employed at the Ottawa Carleton detention Centre.

• B. C: is R.D.s mother and testified in support of her son.

• A. C: is R.D.s first cousin and testified in support of him.

Analysis:

54. The court also received voluminous CSC records from 2013 to 2019. These came from Federal institutions including Dorchester, the Atlantic Institution, and Bath Institution. The records consisted of correctional plan progress reports, Parole Board decisions, and psychological assessments; as well as records from the OCDC including misconduct reports, use of force occurrence reports, and medical information. Video evidence of incidents involving R.D. and correctional staff at the OCDC also formed part of the evidence at this application.

55. Counsel for the Crown and for the R.D. presented written argument on the issue of the designation and potential appropriate sentence. The Crown submitted that a dangerous offender designation had been proven beyond a reasonable doubt and that an indeterminate sentence was appropriate. Counsel for R.D. submitted that a Long-term offender designation was appropriate with time served followed by a 10-year long term supervision order.

56. While it is fair to say that since the initial decision of January 2013, R.D. has shown a certain level of improvement, I nonetheless find that the Crown has established beyond a reasonable doubt that R.D. should be designated a dangerous offender. I am of the view that that finding can be made under either s. 753(1)(a)(i) or (ii) of the Criminal Code. I would not make the finding under s. 753(1)(b).

57. I come to this conclusion based upon the analysis and findings of fact that follow.

58. To begin with, I rely upon my original decision as it pertains to the current Dangerous Offender designation, and the factual findings contained therein including: the description of the predicate offence, R.D.’s family, personal, educational, and criminal history, his behavior while previously incarcerated and the conclusion reached to that point remain valid and relevant when considering this application.

59. My reliance upon the first decision was taken in light of the Court of Appeals decision in R.D. and any changes in the governing jurisprudence, including the Supreme Court of Canada’s decision in. Boutilier. Bearing that jurisprudence in mind, the original decision remains valid.

60. I have considered the fresh evidence presented at this hearing, which I would put into four categories: a) R.D.’s programming, risk assessments and behavior while incarcerated under Correctional Services Canada; b) R.D.’s behavior while in provincial remand institutions, and in particular the OCDC; c) Forensic Psychiatric Evidence/risk assessment and risk management evidence and; d) Family support.

R.D. while incarcerated under Correctional Services Canada:

61. Since January 16, 2013 R.D. has been incarcerated almost exclusively in maximum-security institutions primarily in Dorchester, and the Atlantic Institution. It was only in the late Summer of 2019 that he was transferred to the medium security Bath Institution.

62. What stands out the most from the records taken from these institutions is the failure of R.D. to have participated in any meaningful programming after more than 6 years.

63. The evidence isn’t clear as to exactly where the blame lies for this failure. It has been suggested that there was no programming available and he was on waiting lists and of low priority because of the indeterminate sentence. It has also been proposed that R.D. avoided any programming pending the result of the Appeal of the October 2009 jury verdict of (heard in 2019): Dr. Michelle Manuel’s June 29, 2015 Psychological assessment, p. 14. He didn’t avail himself of sex offender programming until October 24, 2019, when he completed the intake primer sex offender program at the Bath Institution.

64. Regardless of the reason why, the bottom line is RD requires intense comprehensive programming before he can be safely released into society and that simply has not taken place.

65. This, it seems to me, goes to the issue of intractability. It is difficult to conceive of how R.D. can control/surmount his future behavior without first dealing with his past.

66. Several Correctional Plan Updates taken from various institutions were filed. The updates show modest progress on the part of R.D. with respect to the following stated categories: Personal Emotional, Attitude, Substance Abuse, Education/Employment, Community Functioning, Marital/Family, Associates.

67. Some of the positive evidence of improvement from his time in Federal Institutions included: R.D. having no formal institutional misconducts for several years, his having served well as a range manager, and his being a good worker as an Administrative Cleaner while at the Atlantic institution: Risk assessment update, May 29, 2019. The Risk Assessment update recommended R.D. be re-classified to medium security leading to the transfer to the Bath Institution.

R.D.’s behavior while in provincial remand institutions, and in particular the OCDC:

68. The Crown presented evidence and relied on three incidents involving RD and correctional officers at the OCDC that took place on March 11, 2020 March 12, 2020 and October 13, 2020. The incidents dated March 12 and October 13, 2020 were captured on video and were, in some measure, described by the correctional officers involved.

69. Counsel for each side have spun these incidents at opposite ends of a spectrum. The Crown has argued that each incident is further evidence of assaultive behaviour on the part of R.D. that can be used in the determination of a pattern of behaviour under section 753. Counsel for the respondent R.D. argues that if anything the incidents demonstrate a measure of restraint and self-control on the part of R.D. and that the events “properly understood militate against a finding of intractability.”

70. My view of what took place on those dates, and what could be made of it in deciding this application is not in sync with either of Counsel’s interpretation. I accord only a modest amount of weight to these incidents in terms of the overall issue of the designation. At their highest they show a lack of compliance and a degree on aggressivity on the part of R.D. at the OCDC in particular.

71. The March 11, 2020 incident can be summarized as follows:

• The incident occurred at the Ottawa General Hospital, it was not captured on video. Correctional services officers Kehoe and Nebedum acted as escorts in returning R.D. after he was being discharged from the hospital. The entire incident was described by Officer Nebedum in the following language:

“My partner was actually the one putting the hand restraints on him. I was standing just in front of the inmate by the side, a little by the side, but in front, while my partner was putting the hand restraints. And the next thing I saw was, he just-the hand restraint was arty on his hands, and then he just, you know, lunged at me. Actually, it was, he was coming for my face, and then as I dodged it, he hit me, you know, on my shoulder, and I went down. So I went down and, you know rolled and then came up again and then I saw my partner holding him against the wall you know I didn’t do anything else my partner had already calmed the situation.”

• R.D. was referred to the hospital on the date in question by Dr. Klar, the staff physician, at the OCDC for a psychiatric assessment because of strange behavior.

• Dr. Klar testified and went through R.D.’s health records from the OCDC and explained some of the possible difficulties R.D. had been having in terms of mental health, the medication he was on, and why he was referred for a psychiatric assessment.

• The context of what transpired in my view rendered what was already a relatively minor incident to one that I afforded very little weight in the overall analysis of my finding R.D. a Dangerous Offender.

72. The March 12, 2020 incident was captured on video and testified to by a several Ottawa Carleton detention Centre correctional officers. It can be summarized as follows:

• R.D. was returning from court; his attendance on that specific date was caused by an error in the system.

• Capt. Patrick Barnes explained the process that an inmate at the OCDC is supposed go through when returning from the courthouse. They are subject to a pat-down, they are scanned for contraband, they are strip-searched, they then have the option of taking a shower and then they are placed into institutional clothing and brought to their living unit.

• On the date in question R.D. in a clear state of agitation refused to comply with orders from the correctional staff to go into a changeroom put on inmate clothing after returning from the court.

• At one point in the video he stands, seems to be engaged in an argument with the staff, and then he is seen lunging towards one of the correctional officers. He is then pepper sprayed, brought down to the ground, handcuffed from behind, and from my perspective struck several times by one of the correctional officer’s knees. There were as many as six correctional officers involved in subduing R.D.

• He is then carried by several officers, while his hands and legs are restrained from the back, throughout various locations of the OCDC Centre. At some points he is put down, and in the process of lifting and carrying him continues until he reaches the cell.

• Several of the officers engaged in the incident testified that R.D. refused to walk to the pod, and one officer testified that when he was stomach to the floor with several officers restraining him, he was trying to assault them. That does not seem to be the case based on the video evidence.

• Having watched the video a few times, I would not convict R.D. of any criminal offense such as an assault based on the evidence and video of the incident. The evidence supports the proposition that the only one injured as a result was RD.

• At its highest and for the purposes of this application, I consider it evidence of RD being frustrated, stressed, and disobedient on that specific occasion. He does act out aggressively and decides not to cooperate with correctional staff on that specific occasion. I would not categorize it as evidence of self-control and restraint.

73. The October 13, 2020 incident can be summarized as follows:

• RD is in a holding cell at the OCDC. He had just been told he was going to be relocated to another unit, he was not happy about this and he refused to go.

• Sgt. Corey Winters, a correctional officer, approached R.D. to discuss having to move him to another unit.

• R.D. is seated on a bench in the cell and Sgt Winters and he appear to be speaking. The exchange gets a little heated. R.D. stands and Sgt. Winters backs away.

• Sgt. Winters put his hand on R.D.’s chest to deflect him back. Then within a split second another corrections Officer peppers sprays R.D. in the face. R.D. then raises his hand and is sprayed a second time.

• Sgt. Winters testified that his perception was that after the first spray R.D. still was not compliant, raised his hand and was again pepper sprayed.

• I would not convict R.D. of an assault based on this incident. Again, for the purposes of this application RD was upset and stressed about having to change his living unit, he didn’t comply and in my view the reaction of the Corrections officers was arguably excessive.

74. With respect to these incidents, I view and interpret them considering two other factors: 1) R.D. has been housed at the OCDC on and off for far too long, his stress level and inability to comply with their rules should be measured in light of this fact; 2) R.D. was convicted of assaulting OCDC staff in the past, and the November 2009 and 2011 incidents, likely play a role in how the correctional officers deal with him.

Forensic Psychiatric Evidence/risk assessment and risk management evidence:

75. Dr. Derek Pallandi testified and prepared a s. 752(1) report dated September 11, 2020 pursuant to the Court’s order of June 17, 2020. Dr. Pallandi also prepared a report dated July 2010 and testified at the original hearing.

76. His evidence can be summarized as follows:

• He testified in his capacity as a forensic psychiatrist. The purposes of this testimony and report was to provide an assessment in “order to quantify [R.D.’s] ongoing level of risk and manageability”.

• His testimony and report from the first hearing were described in the following manner:

He diagnosed Mr. RD as suffering from an anti-personality disorder of the severe variant coupled with a diagnosis of psychopathy. He described the respondent as glib, superficially charming, unencumbered by guilt or anxiety, remorseless, callous towards his past victims, largely irresponsible and reckless in his attitudes. He scored Mr. RD at 32/40 on the (psychopath the checklist revised) which was described as above the cut off for psychopath he. He placed Mr. RD at the 95th percentile on the violent risk appraisal guide. He scored them at the high normal score in the static 99 instrument which provides a screening tool to identify individuals at risk for future sexual offending. He concluded that based on the actuarial and clinical risk assessments that the respondent was a high risk to reoffend for violent and/or sexual offenses. His recommendations were Mr. RD’s prognosis is frankly poor for being free of recidivism. He is at a high risk for violent and/or sexual recidivism and has low or no motivation for treatment… They could be no empirical or realistic realistically based optimism that Mr. RD’s risk can be safely or appropriately managed in the community and any near point in the future… For these reasons, there appears to be little rational recommendation to be other than to protect the public from Mr. RD via his incarceration in a controlled environment.

• The current report was a blend of the present assessment including observations from a three-hour interview with R.D. as well as an update on the findings from the July 2010 report and his prior testimony.

• With respect to evidence of positive change, the forensic psychiatrist noted the following in his report:

• Mr. RD’s notably problematic institutional conduct since being federally incarcerated appears to have abated with respect to its diversity frequency and severity. A notable exception was his 2011 assault upon a correctional officer.…He was a range representative for a period of 2 ½ years and a range cleaner until his transfer out of the federal system.

• He also described R.D.’s semi-acceptance of responsibility for the predicate offence. He noted the following excerpts from his interview with R.D. in the report: “when asked about his views of the original convictions and his unsuccessful appeal, Mr. RD stated “it is what it is”. “I’m not saying” then halted and stated “I was out of line that night” then he added “there are two sides to every story… I wasn’t guilty of no aggravated assault. I need a wakeup call… To get out of that lifestyle… The party lifestyle” he agreed he had been using street drugs and drinking. He stated, “a lot of thinking that I was entitled to do what I want” he then added “I was wrong for doing what I did to her.” When asked specifically how close to the truth the judgment was, Mr. R.D. struggled observably to answer the question. He explained that both he and the complainant were using drugs and alcohol and that “[s]ome things are true and some aren’t I should never have been in that situation”

• It was also noted in the report that “concerning sex offender specific programming, for the majority of his sentence, Mr. RD declined attendance citing his counsel’s advice not to pending his appeal. In 2019 he attended 10 sessions of the sexual fender primer program. Mr. RD’s participation was described favourably. Mr. RD himself described it as “pretty good” and that he “learned about empathy, being a bully in relationships… The drugs and alcohol are not my friend.”

• With regard to the actuarial assessment of risk Dr. Pallandi noted:

concerning the issue of psychopathy and Mr. RD’s PCL-R score, while there is evidence of some attenuation of some factors (aggressivity, impulsivity), I would hesitate to amend the score given the important fact of his incarcerated status and the tempering effect that this has upon these variables. I would not amend my VRAG score.

• Concerning the static 99 actuarial assessment of risk, the overarching consideration for deciding whether the original score remains an accurate estimate or not is that Mr. R.D.’s has remained in custody for the entire theoretical “at risk” period of 10 years that is reflected in the population data for the development sample. That he has not committed an offence while incarcerated is entirely expected.

• When contemplating his risk going forward, the only factor suggesting a downward estimate of risk is R.D.’s age. Both in the static 99 and 99R age over 50 does confer a lower long-term risk of re-offense. This is borne out in correctional service Canada research that has demonstrated a reduction in all forms of recidivism (including violent and sexual) after the age of 50.

• When it comes to managing identified risk, the following is noted in this evidence and in his report:

One would’ve hoped and expected that with the passage of 10 years Mr. RD would’ve engage much more vigorously in treatment and change as to suggest a more optimistic prognosis. Clinically his risk appears to remain high and unaddressed.… The continued recommendation [as before] remains for attendance at high intensity multifactorial treatment programs. He should be encouraged to engage in educational and vocational upgrading and training. Mr. RD’s potential for community reintegration remains entirely untested and he himself is at a loss to explain how this might progress in a realistic fashion.

• Dr. Pallandi also conducted 30-minute telephone interviews with R.D.’s mother, B.C., and his first cousin, A.C. He indicated the following with respect to his interview with B.C.:

She indicated that she had a lot of contact with her son by telephone and in-person visits over the years; but had not seen him since he returned Ottawa. Overall, her estimation of RD is that he had matured a great deal that he has a lot more insight into himself. Furthermore, that while incarcerated he did some programming that he said to her was very very helpful. She believed his risk had diminished at least one occasion she indicated that he was turning into an old man. That he was not the same person as eight years ago. When asked about potential support she said “I will always there be there for my son… If he needs anything including being able to reside with her and her husband should Mr. RD not be allowed to remain with A.C..

• He indicated the following concerning the interview with A.C.:

RD was like a big brother that they maintain contact their entire lives. She indicated that the bath institution was an amazing place for him a place where he began to address a number of issues and where he became involved. She and she indicated to Dr. Landy that she had no reservations about her having her family that involved with Mr. with R.D. upon his release that he would reside with her and her family in her four-bedroom home. She also agreed to provide consent for any contact between her and any person might be involved in R.D.s treatment or oversight. And that she would unhesitatingly report any breaches

77. Dr. Julian Gojer is a forensic psychologist. He testified and prepared a report. I would summarize his evidence as follows:

• He authored an assessment at the request of counsel representing R.D. and prepared a report dated November 4, 2020.

• Following a thorough description of R.D.’s personal, criminal, medical and institutional history and citing at length from Dr. Pallandi’s report. He offered the following highlights in his report:

• His description of the interview indicated:

Mr. RD frequently put his head down when narrating the account of the offenses. I got a sense that he wanted to tell me more but felt constrained. Notwithstanding his denials and minimizations with Dr. P he was more open and willing to entertain the possibility that more could’ve happened than what he either recalls or is willing to share with me.

• He described Mr. R.D. as being institutionalized and that this impacts his risk and the degree that his behavior is managed and is therefore relevant.

• With respect to risk assessment, Dr. Gojer indicated that multiple issues are at play when it comes to Mr. R.D.’s offending. Including developmental issues, psychological trauma, brain injury, drugs and alcohol use, emergence of psychiatric illnesses, personality disorder and ongoing problems with brain malfunction.

• On the actuarial risk assessments, the following were the doctor’s findings: R.D. had a PCL R score of 28 which is high score and suggest that R.D. has prominent psychopathic traits. On the sex offender risk appraisal guide and the risk of a sexual violence protocol and static-99, R.D. scored in the high risk to reoffend violently and sexually category: Report p. 27.

• The most important finding in my estimation in the report is the following:

Mr. RD has not engaged in therapy in the past. He will need therapy for his childhood trauma, help to identify his risk factors, improve the quality of his ability to rate relate to women, manage aggression and temper, and to reverse the institutionalization that he find himself caught in. He will need sex offender programming also all these treatments have their own problems. To date, Mr. RD has had exposure to only a basic sex offender treatment program. He will need the high intensity program, the maintenance program and couple this with healthy relationships and socialization programs. Furthermore, due to his reading and writing limitations he will need one on one counselling to supplement any group therapy he receives.

On paper his high risk and daunting tasks at managing his risk could see one relegating Mr. RD to the back of the pack for any treatment programs. A certain degree of investment by a therapy team is needed to see them benefit from these programs and implement them from a trauma informed perspective. The only location I can see him receive all these programs might while managing public safety is in a penitentiary. He is likely to need between 2 to 3 years at least organize and implement such programs. The implementing of these programs can be dovetailed with diminishing risk as he ages and by the time he is six years old it is an expectation that his risk will be significantly lowered reoffend sexually. Whether all the above factors can be integrated into a plan for release into the community will depend upon an additional time to avail of programming while in custody and then managing him on a very tight leash upon release.

78. These two highly qualified and very experienced forensic psychiatrists were in many respects in agreement on most of the key issues. The main difference is Dr. Gojer suggested at least a 2 to 3 year in custody window to complete the required programming prior to reentry or reintegration into society. Dr. Pallandi on the other hand sees community reintegration as nothing but “a speculative possibility of managing his risk”.

79. The forensic psychiatric evidence buttresses a dangerous offender designation.

Family support:

80. B.C. is R.D.’s mother. She testified and offered to support and assist her son in any way she could were he to be released under a long-term supervision order. It should be noted that Mrs. B.C. testified at the first hearing, where she offered a detailed history of R.D.’s upbringing. A summary of that testimony is in the first decision and forms part of the basis for this decision. Her testimony at this hearing can be summarized as follows:

• She has kept in close communication with R.D. throughout his incarceration. She currently lives in Constance Bay just outside of Ottawa. She was just about to have in-person visits with R.D. at the Bath Institution when he got transferred out. She explained that she hasn’t visited him while he’s at the OCDC because of her health difficulties, but she nonetheless spoke to him every day on the phone.

• She described what she perceived as the mistreatment of her son at the OCDC. And how he’s been deteriorating ever since he has been there. She juxtaposed the positive compared conversations she had with him when he was in the penitentiary as compared to OCDC.

• She spoke of R.D. in a positive light, particularly in regard to how things had been going in the last year while at the Bath Institution. She felt there had been positive change.

• She described that he does not want to return to the Ottawa area if he’s released on a long-term supervision order, but that if the plans ever changed, she would support him coming to live with her. She would also support him if he were released into a community correctional center or halfway house.

• She described the abuse that R.D. suffered at the Shelburne Youth Centre. From her perspective R.D. currently has more insight into his past difficulties and his problems with alcohol. As she put it, “I think it’s made him a little bit more open-minded to his own problems at this point. Just by talking to him, I mean, like 15 years ago he wouldn’t of spoken the way speaks now”.

• In cross-examination Mrs. C. was asked about:

o her knowledge and acceptance respecting R.D.’s problems with alcohol and the timing of when his alcohol abuse became an issue; on any sexual assault programming taken by R.D.

o the fact that she never talked to R.D. about the specifics of his version of the predicate offense. When asked specifically she acknowledged that R.D. sexually assaulted C.P.

o her knowledge about any programming or lack of programming R.D. undertook while incarcerated. It is to be noted that she wasn’t aware of the of it to any great extent.

o that at every parole hearing in 2015, 2017 and 2019 she had little to no involvement in the hearings, including the preparation of any kind of release plan into the community.

o what kind of risk RD poses to society. Her response that was that she was hoping that he gets programs so all these issues can be dealt with. And when asked what issues she saw her answer was that “the aggression the sexual violence you know I mean alcoholism”.

• In re-examination she was asked about the change in her attitude over the last seven years and she indicated that she now believes he’s guilty and that she’s just hoping that he doesn’t have to spend the rest of his life in jail.

81. A.C. testified, and I would summarize her testimony as follows:

• She is R.D.’s first cousin and described their relationship as a “surrogate brother sister type relationship”. She is 43 years old and has been employed with Parks Canada for 17 years. She has two children: a daughter, 23 and a son, 18.

• She described growing up spending summers in Nova Scotia and residing with R.D. and his family. She lived in Ottawa at the same time as R.D. when she was 16 and he was 19.

• She described maintaining contact with him when he was first sentenced to a federal penitentiary.

• She described her participation in the first trial and dangerous offender hearings dating back between 2009 and 2013.

• She testified that her children know R.D. They speak to him on the phone quite frequently and visited him when he was at the Central East Correctional Centre. She views the relationship he has with them as positive. She described that her daughter and R.D. have bonded over their respective religious faiths.

• She also testified about R.D. and his difficulties at the OCDC. She highlighted how things were very positive at the Bath Institution and negative at the OCDC.

• She described that she lives in a four-bedroom home where she lives upstairs and her sister and baby and partner live in an in-law suite downstairs. That there is a fourth bedroom where R.D. could stay if he was released to her via any kind of supervision order.

• She believes he is guilty of the offenses for which he was convicted. She sees alcohol as a significant contributing factor as well as the trauma he is suffered through his life, however qualified her opinion by saying that she’s not a psychologist. She testified that there’s no alcohol in her house.

• In cross-examination she acknowledged that she really only grew up with R.D. until about the age 11, and then saw him sporadically. She would’ve been 16 when R.D. was first convicted of the serious offense in 1993, and as such only had vague knowledge of the offense. She was cross-examined about her living arrangements. She testified about the extent of her relationship with R.D. after he was released from his first major penitentiary sentence to his arrest for the predicate offense in 2008. The level of her knowledge about the predicate offense and the crimes committed by R.D. She was cross-examined on how having R.D. living with her and her family could impact on such matters as her clearance certificate at work, the potential of CAS getting involved from child protection concerns etc.

82. While I have no doubt that B.C. and A.C. are well-meaning, in my opinion the insight they have into the level of risk R.D. currently poses was somewhat problematic.

Analysis regarding the dangerous offender designation:

83. I find that the Crown has established beyond a reasonable doubt that R.D. should be designated a Dangerous Offender. The finding can be made under either s. 753(1)(a)(i) or s.753(1)(a)(ii).

84. I arrive at this conclusion based upon the following analysis:

Regarding s. 753(1)(a)(i) and (ii):

• The designation and findings made in the of January 16, 2013 decision in terms of R.D.’s entire criminal history, level of risk from a psychiatric perspective and failure to accept responsibility for his actions, remain to a certain extent unaltered with the passage of time.

• While there has been some improvement in RD’s conduct and a degree of maturation while incarcerated from 2013 to today, his lack of any meaningful programming to deal with his level of risk and the current forensic psychiatric evidence reinforces a continued finding that he is a dangerous offender.

• While I don’t necessarily categorize the events at the OCDC in March and October 2020 in the same way as Crown counsel, they nonetheless show R.D.’s lack of control even in a very controlled setting. In each instance he initiates the incident with his words and his actions. The OCDC staff may have arguably overreacted, but they were simply asking an inmate to follow the rules and R.D. refused to do so and gestured towards them in threatening manner.

• R.D. has a very long history of a pattern of violent behaviour from his youth through to being an adult in his forties. To this day he lacks insight into or meaningful acceptance for what he has done. “I never seriously hurt anybody in my life” were his words to Dr. Gojer in 2020.

• I find that R.D. is intractable in the sense that when the totality of the evidence is considered it is difficult to envisage a plan of treatment that would eliminate or substantially reduce his violent propensities.

• I believe they can be managed but not eliminated or cured.

S. 753(1)(b)

• I agree with R.D.’s Counsel’s analysis. The evidence at its highest is that the respondent poses a high risk to re-offend sexually. However this finding does not equate with an intractable sexual proclivity linked to a sexual disorder. For this section of the Code to be practically distinguishable from s.753.1(2)(b)(ii) something more than simply a high risk to re-offend would be needed to be captured by s. 753(1)(b).

• The testing carried out on R.D. showed no such disorder.

85. The evidence concerning R.D.’s conduct since 2013 has shown some amelioration, especially when juxtaposed to his earlier behavior while incarcerated, however when all things are considered I am satisfied beyond a reasonable doubt the R.D. is still a dangerous offender.

Indeterminate or Determinate Sentence

86. Once a Dangerous Offender designation is made the available sentencing options are set out in ss. 753(4) and (4.1) which stipulate:

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

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

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

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

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

87. In my estimation a determinate sentence is appropriate in R.D’s case. While I believe it to be unlikely R.D. will ever be cured of his propensity towards violence, I do believe based upon the totality of the evidence, and in particular the evidence of how R.D. has in some measure improved, that there exists reasonable expectation that the risk he poses can be appropriately managed in the community in the future.

88. The following evidence and findings of fact support a finding that there is a reasonable expectation that the risk he poses can be managed in the community in the future:

• The risk assessment and findings of Dr. Gojer, in particular his report, which stated,

[t]here are several factors that are changeable in Mr. D. These include potential treatment for his attentional deficits, medication for impulsivity, and treatment for drug and alcohol abuse. He has, while in custody over the last 12 years shown a distinct change in use of drugs and alcohol. I feel that there is some softening in his stance with respect responsibility for the offending. He needs assistance in working on future plans and is willing to take direction. Lastly, we need to understand the impact of age on offending. It is known that offending drops after the fourth decade of life. More specifically sex offending drops as one gets older at the age of 60 years there is research to suggest that sex offending against adult females is very low.

• The reclassification of R.D. from a maximum security to medium security facility and the risk assessment dated May 29, 2019, which suggests that the level of improvement in this offender allows for the inference that with appropriate programming the risk he poses will likely and expectedly be manageable in the future.

• The evidence that supports the proposition that R.D. is more self- aware than he ever has been.

• His acceptance that he no longer wishes to drink, his understanding of the role that may have played in his criminal behavior, and his position that we he will go so far as to take Antabuse to ensure his sobriety.

• His having completed the sexual offender primer program at the Bath Institution and medium security facility, and the evidence from family members that suggested he was doing very well during the short time he was housed at that institution.

• The very strong and unequivocal support he has from members of his family. I was impressed by the evidence of A.C. and B.C. and their commitment to R.D. in the immediate and long-term future. They will no doubt play a role in managing his risk in the community and I find based on their evidence that they will do their level best to assist in attenuating that risk.

89. Therefore, I find that a determinate sentence is appropriate in all circumstances of this case.

Appropriate Sentence

90. The Crown’s position in terms of the appropriate sentence was that the Court should sentence Mr. R.D. to 25 years imprisonment and credit him for 12.5 years of time served on a one to one basis, leaving a further sentence of 12.5 years, followed by a 10 year long-term supervision order, as well as several other ancillary orders.

91. Counsel representing R.D. submitted that the maximum sentence the court should consider would be credit for time served with an additional two years, followed by a 10-year long-term supervision order.

92. Counsel representing R.D. calculated that if one were to apply 1 to 1.5 credit for time served in this case, he has served in excess of 18 years for the predicate offenses. There is some merit to this submission. R.D. has spent more than 12 1/2 years in prison, a reasonably significant portion of that time has been spent in remand facilities and in segregation.

93. That said, the sentencing here is in the context of a dangerous offender proceeding. The Court of Appeal has recently stipulated that a sentence in the context of a dangerous offender can exceed the appropriate range of sentence developed in cases involving non-dangerous offenders. However, the sentence must not exceed the maximum turn term of imprisonment available for the predicate offence. Furthermore, the court is entitled to take into consideration the time reasonably necessary for the dangerous offender to complete available rehabilitative programs as part of the custodial component of the sentence: R v. Spilman, 2018 ONCA 551, [2018] O.J. No. 3297 (C.A.) at paras. 39-45.

94. R.D. has been in custody on the predicate offences for in excess of 12 1/2 years. A significant portion of that time has been spent in remand facilities. In my view R.D. requires a further three years of incarceration in order to complete the high intensity sex offender program and any other suitable programs to accommodate his reintegration from incarceration to long-term supervision.

95. I would impose a determinate sentence in this case of 15 years and nine months. I would credit RD with 12 years and nine months of time served, leaving three years to be served on the warrant of committal.

96. The sentence imposed on each of the predicate offenses would be as follows:

a) 12 years 9 months for the sexual assault causing bodily harm (credit for this time served).

b) Three years imprisonment for the choking offense (the warrant of committal to indicate three years).

c) Three years for the unlawful confinement to be served concurrently.

97. With respect to this sentence I make the following strong recommendations to Correction Services Canada:

a) That the sentence be served at the medium security facility Bath Institution, where R.D completed the sex offender primer program.

b) That R.D. be immediately enrolled in the high intensity sex offender program, and any other suitable programs that can assist his reintegration from being incarcerated to being subject to a long-term supervision order.

c) That specific consideration be given to the recommendations of Dr. Gojer at pages 28 and 29 of his report dated November 4, 2020

98. This term of imprisonment is to be followed by a 10-year long-term supervision order. I recommend that the supervision order contain the following conditions:

a) That there be gradual and stepwise return to more independent living, commencing with CSC housing at the start of the long-term supervision order.

b) That there be random sampling of breath, urine and blood to screen for substance misuse.

c) Full and reciprocal consent for exchange of information between all treatment providers/supervising officers and any person involved in his personal life (family, potential relationship partners).

d) A non-association condition vis-à-vis any criminal peers.

e) That he attends further treatment for trauma, substance abuse and sex offending available in the community upon being released.

f) That his living accommodations be approved by a supervising officer.

g) That the offender be prohibited from communicating directly or indirectly with the victim or her family.

99. The sentence will include the following ancillary orders:

a) That R.D. is prohibited from communicating with the victim or her family while incarcerated, pursuant to section 743.21 of the Code.

b) That R.D. provide a sample of his DNA pursuant to the provisions of the Code.

c) That R.D. is subject to lifetime weapons prohibition pursuant to s. 109 of the Code.

d) That R.D. is subject to a lifetime SOIRA order pursuant to section 490.012 of the Code.

100. There will also be an order pursuant to s.760 of the Criminal Code ordering that this decision, the transcripts of the evidence of both forensic psychiatrists, as well as their reports will be forwarded to CSC.

101. Finally, this matter was conducted over several days during the Covid-19 pandemic. I wish to thank all counsel involved in this hearing; the case was conducted with the utmost of professionalism. Their patience, flexibility and cooperation with the court and each other was commendable.

Released: June 8, 2021

COURT FILE NO.: 08-5049

DATE: 2021/06/08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

RD

Respondent

DANGEROUS OFFENDER APPLICATION

Maranger J.

Released: June 8, 2021