COURT FILE NO.: 16-SA5112
DATE: 2021/06/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WALTER STARNAMAN
Accused
Robert Thomson, for the Crown
James Foord, for the Accused
HEARD: May 10 and 13, 2021
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COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.
sentencing decision
PHILLIPS j.
[1] For reasons reported at 2021 ONSC 2390, I designated Walter Starnaman a dangerous offender under s.753(1)(a)(ii) of the Criminal Code. These reasons explain why I have decided that he shall now be detained on an indeterminate basis.
The Key Facts
[2] Mr. Starnaman was convicted of one count each of sexual interference and sexual assault committed against C.B., a then 10-year-old girl. The misconduct occurred from roughly January 1, 2015 to May 24, 2016. Throughout the material time, Mr. Starnaman had ingratiated himself into C.B.'s life by befriending her mother with the goal of gaining access to the child as a babysitter. While supervising the girl at his apartment in the absence of her mother, Mr. Starnaman would invite her into his bed and rub her genital area over her clothing. This happened several times.
[3] I found as a fact that Mr Starnaman’s principal interest in the B. family was C.B. and not her mother, F.B. I rejected his trial evidence to the contrary as incapable of belief. The totality of the evidence made it clear that Mr. Starnaman pursued a friendship with F.B. in order to gain access to her daughter. His present position that he was merely trying to kindle a romantic relationship with F.B. and that is how he came to be coincidentally babysitting C.B., is simply untrue.
[4] Before leaving the facts, I should again make clear that I am aware that Mr. Starnaman should not be punished for maintaining his innocence. He is not required to agree with my findings of fact or with my conclusion in respect of his guilt. His present insistence on being wrongfully accused and convicted in this case is by no means an aggravating factor. That said, his position is nonetheless informative about the degree of insight on his part and therefore his likely motivation to follow liberty restrictions necessary to ensure successful treatment.
The Relevant Legal Principles
[5] There are three types of sentences that can now be imposed. Sections 753(4) and (4.1) state:
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.
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.
[6] As this matter has been argued, I am to choose between an indeterminate sentence, or a determinate sentence exceeding 2 years followed by a 10-year LTSO. The question is: can the court have a reasonable expectation that a lesser measure, in the form of a determinate sentence with an LTSO, will adequately protect the public against the commission by the offender of a serious personal injury offence?
[7] The Supreme Court has provided the following framework to guide the court’s analysis under s. 753(4.1) in R. v. Boutilier, 2017 SCC 64, at para. 70:
i. If the court is satisfied that a conventional sentence will adequately protect the public against the commission of murder or serious personal injury offence, then that sentence must be imposed.
ii. If the court is not satisfied that this is the case, then it must proceed to the second assessment and determine whether a conventional sentence of a minimum of two years' imprisonment followed by a long term supervision order for a period that does not exceed ten years will adequately address the public safety issue. If the answer is yes, then that sentence must be imposed.
iii. If the answer is no, then an indeterminate period of incarceration is to be imposed. Indeterminate detention in a penitentiary is to be the last option.
[8] A court should impose an indeterminate sentence unless evidence specific to the offender satisfies the court that the offender can be rehabilitated within a determinate period of time. A hope that treatment will succeed or some optimism that an offender could be rehabilitated is not a sufficient basis to impose a determinate sentence. The court is not entitled to gamble on the safety of the community (see: R. v. Sipos, [1998] O.J. No. 985, at paras. 200-206 (ONSC); R. v. Poutsoungas, 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388).
[9] The authorities suggest that a “reasonable expectation” under the present legislation is a more stringent standard than “reasonable possibility”, the term used in the previous version of the legislation. In R. v. Minott, 2015 ONSC 4307, at paras. 28-29, for example, Nordheimer J. (as he then was) concluded that “reasonable expectation” connoted more than a “mere possibility”:
The use of a different expression in the section, from what previously existed, would suggest that a change was intended. Further, the word “expectation” carries with [it] a connotation of more than just a mere possibility. For example, the Oxford Dictionary of English defines “expectation” as “a strong belief that something will happen or be the case”. I accept therefore that something more than a mere possibility must exist. I note on this point that my colleague, McMahon J., reached the same conclusion in R. v. Yang ….
[10] The question is not one of proof of cure but proof of management. As Karakatsanis J. (as she then was) in R. v. Tremblay, [2010] O.J. No. 3450 (S.C.J.) wrote at para. 155:
The determination of whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including whether the offender can be treated, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public: R. v. G.L. (2007), 2007 ONCA 548, 225 C.C.C. (3d) 20, at para. 42 (Ont. C.A.) [emphasis added].
[11] Finally, I note the words of the Supreme Court of Canada in Boutilier, supra, at paras. 54, 61, and 69-70, to the effect that in order for the dangerous offender sentencing regime to maintain its constitutional integrity, it is critical that the court consider all the principles of sentencing and arrive at a fair and proportionate sentence given the individual circumstances of the offence and offender. While deterrence and denunciation will remain paramount considerations, the court must consider the principle of restraint and rehabilitation and impose the least restrictive measure that will adequately protect the public. To this end, it is critical that the offender's prospects for treatment are given full consideration in assessing whether there is reasonable expectation that the lesser measure of penitentiary sentence and 10-year LTSO can adequately protect the public.
The LTSO Option
[12] Expert opinion evidence is highly relevant at the penalty stage. Molloy J. in R. v. R.M.,
[2005] O.J. 4977, summarized the role of psychiatric evidence in dangerous offender applications:
In determining the likelihood of risk of reoffence and the possibility of controlling that risk in the community, it is relevant for the judge to take into account the expert opinion evidence of psychiatrists: R. v. Lyons at paras. 97-100. That is not to say that the trial judge is bound to accept the opinion of one psychiatrist or the other, but rather that the expert evidence is relevant to the judge's inquiry, with determinations as to the weight and reliability of that evidence left to the judge: R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 …
[13] Dr. Philip Klassen testified that there is a reasonable possibility of eventual control of Mr. Starnaman’s risk in the community. He testified that all that would really be required was for Mr. Starnaman to take Lupron to reduce his sex-drive that is at the root of his offending behaviour. Nevertheless, Dr. Klassen also testified that the proposed treatment plan, even without Lupron, would still provide a reasonable possibility of control in the community.
[14] Dr. Klassen recommends a return to the treatment and management regime that was in place between 2008 to 2012. This plan was in place for the first part of a 6.5-year period that Mr. Starnaman lived in the community without reoffending. Dr. Klassen recommended the following terms:
- Mr. Starnaman should return to the Sex Offender Treatment Program;
- He should return to the care of Dr. Federoff, at the Royal Ottawa Hospital;
- He should remain in treatment with leuprolide acetate (Lupron);
- He should return to his involvement with CoSA;
- He should refrain from alcohol and drugs;
- He should reside in structured housing;
- He should not be permitted to be alone unsupervised with a minor;
- He should report all intimate relationships to his supervisor; and
- He should “live a more structured daytime experience”.
[15] Further, as part of CoSA's commitment to Mr. Starnaman's rehabilitation, they are prepared to provide structure to Mr. Starnaman's time with practical assistance and pro-social leisure activities.
Analysis
[16] Since 2008, Mr. Starnaman has demonstrated periods of time where he has not committed an offence. He has demonstrated periods of time where he has taken Lupron. He has demonstrated periods of time where he has attended treatment. However, as the case at bar shows, that motivation could not be sustained, and Mr. Starnaman sought out and victimized a child multiple times.
[17] Mr. Starnaman has refused treatment, failed to take advantage of treatment, refused medication, or unilaterally discontinued pharmacological treatment on numerous occasions. The following entries from the evidence at the dangerous offender hearing tell a distressing tale:
- September 24, 1980: Dr. Heasman recommended Mr. Starnaman take Provera. Mr. Starnaman declined.
- December 11, 1981: Mr. Starnaman has been on Provera since November 30th. “He wishes to continue on Provera but he hopes not to take it for long.”
- May 12, 1983: “Mr. Starnaman stated that he has been taking Provera “off and on” since December, 1981, and that he believed that psychiatric treatment would be more effective for me. He added that he feels he can control his sexual impulses without drugs.” “He added that he has been seeing a Dr. Mech in Bampton, and that he has discontinued taking Provera... He appeared to be well aware of his problem, but he seemed convinced that talking about his impulses would stop him from assaulting children.”
- June 24, 1983: “He was receiving Provera after leaving Brampton but discontinued this, stating that he and his wife wanted to have children.”
- July 11, 1991: Mr. Starnaman told Dr. Barsky the only counselling that he has had for this problem involves some limited group sessions that occurred in jail. “When he was out on probation after one of the charges two years ago, he was ordered to seek psychiatric counselling. He ended up back in prison before he could do so.” Mr. Starnaman was not on any medication at that time (and therefore not on Provera).
- July 31, 1991: Dr. Collins responded to the letter from Dr. Barsky. Indicating that Mr. Starnaman had not been forthcoming to Dr. Barsky, and in fact Mr. Starnaman had been offered a four-month in-patient treatment spot at the institute (in 1991), but that Mr. Starnaman refused stating he wished to work instead. Mr. Starnaman also indicated to Dr. Collins that he did not wish to consider sex-drive reducing medication as an adjunct to any outpatient therapy.
- January 24, 1992: Justice Cole noted, “Although during the past year the Subject has been referred to three psychiatrists and has seen two, he has not as yet been involved in any treatment. The Subject has, in his own words, “procrastinated” regarding the treatment condition.”
- April 1, 1993: Dr. Dickey noted, “From a clinical perspective however, the risk of further illegal and sexual behaviour in the community appears high. Unfortunately, he eschews biological treatments to control his pedophilic behaviour.”
- February – March 1994: Mr. Starnaman did not want to initiate assessment or treatment at the Mental Health Centre Penetanguishene. He stated that “he had been given the name and telephone number of a person at the Clarke Institute of Psychiatry whom he can contact to initiate treatment when he reaches the community.”
- November 10, 1995: Dr. Klassen noted, “he stated that while he took this medication, he had no sexual contact with children. He stated that he discontinued use of this medication when he wanted to have sexual contact with children.”
- August 7, 2001: Mr. Starnaman attended Arousal Management Group. His participation was intermittent. Mr. Starnaman was to do follow-up work independently afterwards and reconnect with the program coordinator. Mr. Starnaman did not.
- June 20, 2005: Mr. Starnaman attended Cognitive Therapy Group for Sex Offenders. He attended late on numerous occasions. He indicated that he did not believe that he was at risk if he stayed in treatment. However, when confronted by group members about his behaviour in the group, Mr. Starnaman stated “kick me out.” He stated that “he had other important things to do.”
- July 8, 2009: Mr. Starnaman, now out in the community, begins to make excuses for why he may not be able to take Lupron. “He will receive his next injection of Lupron in one week. He claims that he will not be able to afford Lupron after this (because he is making too much money). … I think the main problem is that he is in an apartment he cannot afford.”
- May 17, 2010: Mr. Starnaman declined to resume treatment with anti-androgen medication.
- November 15, 2010: Mr. Starnaman discontinued Lupron. “He is aware of the risks and benefits.” “He would like to stop Lupron in order to restore his interest in children.”
- January 16, 2013: “Psychology closing notes – Chart not available. Mr. Starnaman stopped by unexpectedly today. He said he was doing well and no longer needed to come to therapy…”.
It was after unilaterally ending this treatment that Mr. Starnaman engineered a situation where he could have regular private access to a child.
[18] Despite the tortured history outlined above, it does not appear that Mr. Starnaman is presently all that motivated and genuinely committed to treatment. Mr. Starnaman told Dr. Klassen, in the assessment for this sentencing hearing, that “he does not feel that Lupron is needed now but stated he would use it if he needed to.” I interpret that statement as meaning that Mr. Starnaman does not want to take Lupron, and he will only take it if required by some future development or order. I find this astounding. Walter Starnaman has lived most of his adult life in and out of the penal and mental health systems, receiving punishments and quasi-punishments as a result of his problematic sexual orientation. One would expect in his current circumstances that he would be almost begging for Lupron and anything else on offer.
[19] In fact, Mr. Starnaman took the position with Dr. Klassen that children no longer arouse him. To his credit, this was a position that Dr. Klassen did not accept stating, “I would not support Mr. Starnaman’s current assertion that he no longer has sexual fantasies regarding children”.
[20] The circumstances of the index offence militate against the idea that treatment would have reasonable prospect of success. The offence against C.B. should not be looked at like a lapse that can now be dealt with like a medical issue with a renewal or re-calibration of medication and a marshalling of supports. Walter Starnaman’s conduct underlying this most recent conviction shows a very significant underlying problem of character. To elaborate on this point, I will simply quote what I wrote in my decision of the dangerous offender application:
13 Mr. Starnaman did not simply have a lapse. He went to considerable lengths to engineer a situation where he would have access to a young female child, and then took advantage of that situation multiple times. Mr. Starnaman has longstanding first-hand experience with the penal and mental health care systems and the various consequences he has received for failing to manage his sexual interests appropriately would have brought home the wrongfulness of his interest in the prepubescent as forcefully as can be imagined. Yet he persisted. This was not a flare up, or an unforeseeable one-off scenario that just came by and overwhelmed the man's defences. This was misconduct that occurred as a result of significant planning and deliberation. He spent a lot of effort trying to get himself a child to babysit. As Dr. Klassen noted, not only did Mr. Starnaman form a relationship with F.B., a single mother, Mr. Starnaman also formed a relationship with at least one other single mother, (K.). Dr. Klassen commented, “latterly this gentleman has seemingly shown an interest in connecting with single mothers, likely for access to their children.”
14 At the very least, Walter Starnaman knowingly set himself up for failure. In doing so, he showed a substantial degree of indifference about what he knew would almost surely happen. He would have known that he would likely be unable to exercise self-control when alone with C.B. because he had learned that fact about himself from similar circumstances time and time again. The conduct vis-a-vis C.B. is part of a pattern of persistent aggressive conduct. Mr. Starnaman well knew the risk presented by the situation he engineered, yet he continued. I can only conclude that he did so because his drive to have access to a child outweighed any concern about future imprisonment or the like, never mind any appreciation of the harm it would cause C.B.
15 The core problem is Walter Starnaman's inability or unwillingness to do what is basically required. He will not take even the elementary precautions necessary to adequately minimize the risk of reoffence. In fact, he will expend considerable effort toward elevating reoffence from a prospect to a certainty. As such, the problem is not just Walter Starnaman's sex-drive, but his character.
[21] Walter Starnaman simply cannot be trusted to do what is necessary to manage his inappropriate sexual desires. It is for that reason that I respectfully decline to go along with the LTSO proposal advanced by Dr. Klassen and his optimism in regard to it. There is a saying that everyone knows to the effect that you can lead a horse to water but you cannot make him drink. The LTSO proposals are fine as far as they go, but, in my judgment, Walter Starnaman cannot be relied upon to adequately take advantage of and follow them.
[22] I cannot expect Mr. Starnaman’s proclivities to significantly decline in the future. His history suggests otherwise. While Dr. Klassen did present evidence that sex offenders show significant declines in re-offending as they age, that actuarial data does not address the unique aspects of Mr. Starnaman. Mr. Starnaman has already re-offended during an age bracket (56-57 years old) where the empirical evidence demonstrates a much smaller group of sexual offenders offend. He re-offended multiple times as recently as 2015-2016. He re-offended in a situation where he had engineered things to be alone with a child despite the repeated warnings he had received over the course of his life to avoid those situations. Walter Starnaman is an anomaly. He is very untrustworthy and unreliable and is possessed of little sincere insight or genuine motivation to really address his deviant sexuality and to wholeheartedly do the work necessary to keep it under control.
Conclusion
[23] My role here is to protect society from Walter Starnaman sexually victimizing any more women or girls.
[24] An indeterminate sentence does not mean Mr. Starnaman will not ever have an opportunity to live in the community. It means that state can appropriately supervise him for the rest of his life to ensure he does not victimize any other children. Only the coercive power inherent in parole could possibly keep Mr. Starnaman motivated to take Lupron or follow similar restrictions on his liberty. His track record and present attitude lead to no other conclusion.
[25] In all the circumstances, I am satisfied that an indeterminate sentence is called for. In light of Mr. Starnaman’s history and his present absence of real insight there can be no reasonable expectation that anything less will adequately protect the public against the commission of further serious personal injury offences.
[26] In addition to the foregoing, I make the following ancillary orders. Pursuant to section 760 of the Code, a copy of all reports and testimony given by psychiatrists and other experts and any observations of the court with respect to the reasons for any findings, together with a transcript of the trial of the offender, shall be forwarded to the Correctional Service of Canada. There will be a DNA order as well as a SOIRA order for life. Also, in accordance with s.743.21 of the Code, it is ordered that Walter Starnaman have no communication with C.B. or F.B.
[27] Finally, the conviction for an offence under s. 151 of the Code is stayed in accordance with the rule against double convictions as outlined in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
Justice Kevin B. Phillips
Released: June 25, 2021
COURT FILE NO.: 16-SA5112
DATE: 2021/06/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
WALTER STARNAMAN
Accused
SENTENCING DECISION
K. PHILLIPS J.
Released: June 25, 2021