Court File and Parties
COURT FILE NO.: CR-16-260 DATE: 2021-10-12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Carl Hutchinson, Defendant
Counsel: Jennifer Armenise for the Crown Alison Craig, for the Defendant
HEARD: March 29 – 31 & June 25, 2021
REASONS ON DANGEROUS OFFENDER APPLICATION
VALLEE J.
Introduction
1The Crown seeks a dangerous offender designation against Carl Hutchinson and the imposition of an indeterminate sentence. The offences triggering the application are historical and relate to his sexual abuse of three of his children, C, A and B for six years, from 1994 to 2000. In 2019, after trial, I found Mr. Hutchinson guilty of counselling to commit sexual assault, counselling for a sexual purpose, procuring for the purpose and three counts of assault.
2After he committed these offences, he committed further sexual offences against his children. In 2008, Mr. Hutchinson was convicted of five counts of sexual assault, five counts of sexual interference, two counts of invitation for sexual touching and two counts of incest. His children, B and E were the victims of these offences. They occurred from 2003 to 2005.
3Counsel agree that based on s. 11(i) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, the 2008 statutory sentencing regime applies.
4The onus is on the Crown to establish beyond a reasonable doubt that Mr. Hutchinson meets the dangerous offender criteria set out in s. 753(1). (see R. v. Johnson, 2003 SCC 46, [2003] S.C.J. No 45. paras 28-32 and 43-45) If the criteria are met, the court shall declare the offender to be dangerous. (see R. v. Sawyer, 2015 ONCA 602, [2015] O.J. No. 4652, para 32)
Legal Issues to be Determined
- Is Mr. Hutchinson a dangerous offender?
- If he is, what is the proper sentence?
- If Mr. Hutchinson is not a dangerous offender, is he a long-term offender?
- If he is, what is the proper sentence?
Is Mr. Hutchinson a dangerous offender?
5The Crown relies on s. 753(1)(a)(i) and (b). The Crown does not rely on (1)(a)(ii) or (iii). Accordingly, there are two branches of the dangerous offender test that apply here.
a. Does Mr. Hutchinson constitute a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, showing a failure to restrain his 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 behavior? (s. 753(1)(a)(i))
b. If not, has Mr. Hutchinson by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses? (s. 753(1)(b))
Legal Framework for Dangerous Offender Applications
6In R. v. J.T. 2021 ONSC 366, paras 116 – 130, McArthur J. comprehensively explained the legal framework for dangerous offender applications as follows:
The primary purpose of the dangerous offender provisions in the Criminal Code is the protection of the public: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 (S.C.C.), at paras. 26-27; R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229 (S.C.C.), at paras. 124-125; and R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357 (S.C.C.), at paras. 19, 23 and 29.
117 Dangerous offender proceedings involve a two-stage process: 1) the designation stage and 2) the penalty stage. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat: Boutilier, at para. 31.
118 At the designation stage, the court must determine whether the evidence adduced at the hearing satisfies the requirements of s. 753(1) of the Criminal Code for the offender to be designated a dangerous offender: Boutilier, at para. 14.
119 There are four possible routes to a designation of dangerousness. In J.T.’s case, the Crown seeks to obtain a designation of dangerousness pursuant to two of those routes: s. 753(1)(a)(i) and s. 753(1)(b).
120 To obtain a designation of dangerousness pursuant to s. 753(1)(a)(i), the Crown must first establish beyond a reasonable doubt that the offence for which the offender had been convicted - the predicate offence - is a serious personal injury offence as defined in s. 752(a).
121 The Crown must then establish beyond a reasonable doubt that the offender poses a threat to the life, safety or physical or mental well-being of other persons:
based on a pattern of repetitive behaviour by the offender, of which the offence for which they have been convicted forms a part, showing a failure to restrain their behaviour; and
a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain their behaviour.
122 To obtain a designation of dangerousness pursuant to s. 753(1)(b), the Crown must first establish that the predicate offence is a serious personal injury offence as defined in s. 752(b).
123 Next, the Crown must establish beyond a reasonable doubt that, the offender, by their conduct in any sexual matter, including that involved in the commission of the predicate offence:
has shown a failure to control their sexual impulses; and
has shown a likelihood of causing injury, pain or other evil to other persons through failure in the future to control their sexual impulses.
124 Under either s. 753(1)(a)(i) or s. 753(1)(b), the assessment of the threat posed is prospective and must take into consideration future treatment prospects.
125 A finding of dangerousness requires the Crown to “demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the pattern of conduct.” This prospective approach ensures that only offenders who pose a “tremendous future risk” are designated as dangerous: Boutilier, at para. 46.
126 If the Crown establishes beyond a reasonable doubt that the predicate offence is a serious personal injury offence and that the offender poses a threat to the lives or safety of others based on the above pattern of conduct, or that the offender is likely to cause injury, pain or other evil through a failure in the future to control their sexual impulses, then the offender must be designated a dangerous offender. The court has no discretion. The proceeding then moves to the penalty stage.
127 Section 753(4) of the Criminal Code lists the three sentencing dispositions open to the sentencing judge at the penalty stage:
a) impose a sentence of detention in a penitentiary for an indeterminate period;
b) impose a sentence of a term of imprisonment of at least two years for the predicate offence, followed by a period of long-term supervision of not more than 10 years; or
c) impose a sentence for the predicate offence.
128 Section 753(4.1) provides that the sentencing judge “shall” impose an indeterminate sentence unless “there is a reasonable expectation that a lesser measure” of either a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.”
129 The sentencing judge must first “exhaust” the less coercive sentencing options set out in s. 753(4)(b) and (c) before imposing an indeterminate sentence: R. v. Spilman.
130 Dangerous offender proceedings are sentencing proceedings. The judge in such a proceeding must apply the sentencing principles and mandatory guidelines set out in ss. 718 to 718.2 of the Criminal Code: R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138 (S.C.C.), at para. 40; Boutilier, at para. 53. Although protection of the public is the primary purpose of a dangerous offender proceeding, that does not mean that this objective operates to the exclusion of all others. Rather, preventive detention “represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention are correspondingly increased”: Lyons, at para. 27; see also Boutilier, at para. 55.
7Here, both the Crown and the defence agree that Mr. Hutchinson has been convicted of a serious personal injury offence.
Are the tests set out in s. 753(1)(a)(i) or (b) met?
Forensic Psychiatric Evidence
8Dr. Phillip Klassen was qualified as an expert in forensic psychiatry and forensic sexual behaviours. He is the administrative vice-president at Ontario Shores, has a forensic psychiatric practice and a teaching position at the University of Toronto. Dr. Klassen was the head of the phallometric testing lab at Center for Addiction and Mental Health, known as CAMH, for a number of years, including 2007, the significance of which is set out below. Pursuant to my order, he prepared a s. 752.1 assessment of Mr. Hutchinson dated March 9, 2020.
9Dr. Klassen spent a total of eight and a half hours interviewing Mr. Hutchinson. He also received certain materials including CSC records, MSG records, a copy of Mr. Hutchinson’s criminal record, informations and transcripts regarding Mr. Hutchinson’s offence history, PBC records, transcript of the judgment regarding the predicate offences, a previous s. 752.1 report prepared by Dr. Stephen Hucker in 2008 and, on the consent of Mr. Hutchinson, the results of phallometric testing carried out in 2007. Dr. Klassen also spoke to several people including some of Mr. Hutchinson’s intimate partners. Dr. Klassen’s risk assessment is central to this application. I will review it in detail. The evidence below is from Dr. Klassen’s testimony.
10Mr. Hutchinson faced some adversities in his early years. His parents separated when he was young. There was some conflict between them. His father demonstrated aggressive and criminal behaviour. He died prematurely of an accident.
11Mr. Hutchinson had very little conduct disorder up to age 15. Dr. Klassen explained that people with a life course of persistent criminality have typically engaged in serious misbehaviour starting at school entry. They have juvenile criminal records. This indicates where the offending comes from. Some people are seriously abused and traumatized as children. Their offending comes from the related stress. Others like Mr. Hutchinson are different. There are few indica of stress. The offending flows from a mindset. They choose to live in the moment, in this manner.
12Dr. Klassen stated that Mr. Hutchinson did not disclose to him any childhood sexual abuse. According to Dr. Floyd Wood’s earlier records, Mr. Hutchinson stated that he was sexually abused by an uncle when he was a child. He has good relationships with his siblings. Mr. Hutchinson was quite self-disclosing about a number of things. Dr. Klassen stated that he spoke to others on subjects when he believed that Mr. Hutchinson was less forthcoming, specifically intimate partner violence. Dr. Klassen spoke to Mr. Hutchinson’s mother at length.
13Mr. Hutchinson was generally not interested in school. He left school when he was 15 because his girlfriend, DS, who was about the same age, became pregnant. Notably, he completed grade 12 when he was incarcerated. He was described as a very good student and obtained good grades. Dr. Klassen stated that Mr. Hutchinson has at least average intelligence.
14Mr. Hutchinson said he had a wide variety of positions but none for very long. Dr. Klassen stated that this could be because he was re-incarcerated frequently. His mother, his former partner, who I will refer to by the letter A, and some institutions where he has been incarcerated described him as a good worker. When he was 23, he began collecting welfare and supported himself through criminal activity selling drugs from which made a lot of money. He continued as a drug dealer until 2012. Dr. Klassen stated that Mr. Hutchinson was straightforward about his criminal activities. He enjoyed a hedonistic lifestyle and lived outside the law for significant periods of time. He told Dr. Klassen that he had a legitimate renovation business prior to his last incarceration. Dr. Klassen stated that Mr. Hutchinson lives by the inmate code of behaviour which includes not speaking to police. Mr. Hutchinson has many values and attitudes that are typical of people in custody.
15Mr. Hutchinson has had four significant partners. He has a relationship with only one of his children, M, who was not involved in the sexual assaults. According to the partners to whom Dr. Klassen spoke, CH had serious problems with alcohol. He did not take responsibility for the ending of those relationships but now acknowledges that alcohol was part of it. Dr. Klassen stated that clearly, Mr. Hutchinson has an alcohol use disorder. Alcohol makes him more impulsive; however, most of his criminal behaviour is personality based and perhaps paraphilia based, not purely substance based. Dr. Klassen noted that Mr. Hutchinson had been violent with his domestic partners.
16Mr. Hutchinson told Dr. Klassen that he spent time participating in an indigenous program. He identifies as an indigenous person or has a background, to an extent. He took a violence prevention programme but when asked what he learned, he could not identify much. Dr. Klassen stated that he did not get a sense that Mr. Hutchinson learned about managing high risk situations. This is not a surprise because he has engaged in violent behaviour after the program. He endorses aggressive behaviour.
17Importantly, Dr. Klassen stated that Mr. Hutchinson cannot be considered to be a treated offender. Just because someone has had treatment does not mean, from a psychiatric perspective, he is treated. If offenders learn skills and do not keep them up, they look more like untreated offenders. Mr. Hutchinson declined sex offender programs that were offered in 2011 and 2012 while he was in custody. He said he wanted a program through an aboriginal Elder to learn how to make better decisions. He stated that he was comfortable with more anger treatment but had done a lot on his own, although he did not say what he had done on his own.
18Mr. Hutchinson has a lengthy criminal record. Between 1990 and 2019, Mr. Hutchinson was convicted of 64 criminal offences. Dr. Klassen reviewed the offences with Mr. Hutchinson. He stated that Mr. Hutchinson minimized his role in his offending history. I will refer to a few of them.
19In 1992, Mr. Hutchinson was convicted of assault and uttering threats. He told Dr. Klassen that he punched his sister Helen and threatened his mother. He described it as a “little scruff” and said he shoved her a bit.
20In 1996 he was convicted of assault. He told Dr. Klassen that he punched someone while under the influence of alcohol.
21Of particular note are his convictions in 2008 for sexual assault, five counts of sexual interference, two counts of invitation to sexual touching and two counts of incest. His children B and her half-sister E were the victims of these offences which occurred between 2002 and 2004. In the trial before me, B stated that Mr. Hutchinson started raping her when she was four years old. Dr. Klassen stated that Mr. Hutchinson said these events never happened.
22In 2015, Mr. Hutchinson was convicted of assault, possession of a prohibited or restricted firearm with ammunition, possession of this firearm contrary to a prohibition order, assault and fail to comply with probation order. This involved an act of violence against a former tenant. Mr. Hutchinson told Dr. Klassen that the tenant attacked him after he tried to evict him. Mr. Hutchinson said he was acting in self-defence. Dr. Klassen stated that he was sentenced to three years and 212 days and has not been out of custody since then.
23As noted above, in 2019, after trial before me, Mr. Hutchinson was convicted of the predicate offences being counselling to commit sexual assault, counselling for a sexual purpose, procuring for the purpose and three counts of assault. His children C, A and B were the victims of these offences. Mr. Hutchinson told Dr. Klassen that none of this sexually abusive behavior happened. He stated that the witnesses were lying. Dr. Klassen stated that he had the sense that Mr. Hutchinson felt he was being victimized for things he had not done or that he had done, such as punishing the children.
24Dr. Klassen reviewed Mr. Hutchinson’s institutional records. He stated that he was looking for patterns and responses. He noted that Mr. Hutchinson had been in the PARS program in 2004. His performance was relatively weak. It was offered to him two other times but he did not take it. Dr. Klassen stated that if a person is not interested in self change, external controls are necessary for management.
25Dr. Klassen explained that paraphilias are underlying problematic/deviant sexual preferences. In 2007, the court ordered a s.752.1 assessment. Dr. Stephen Hucker, who prepared the report, requested phallometric testing. At that time, Dr. Klassen was the head of the phallometric testing lab at CAMH. He explained that phallometric testing is done to determine a person’s underlying sexual preferences. This information is meaningful for planning and risk assessment. Dr. Klassen interpreted the results from the testing done on Mr. Hutchinson. They showed that he had a preference for pre-pubescent and pubescent females, which is known as pedohebephilia. He had repeated encounters with minors. Dr. Klassen stated that there are a significant number of people who are sexually abused but who do not become abusers. Mr. Hutchinson’s underlying sexual disorder, as disclosed by the phallometric testing, is not related to his being sexually abused.
26Dr. Klassen explained that for the purposes of the current assessment, he did not order this testing again because pedohebephilia is a trait, not a variable state.
27Mr. Hutchinson denied any history of aggression towards children. He stated his most aggressive act was in the context of selling drugs. Dr. Klassen noted that Mr. Hutchinson’s account of violence against an intimate partner was completely different from what the partner had said. He stated that he had no sexual problems or anomalies.
28Dr. Klassen stated that one of the criteria for an antisocial personality disorder is problems experienced in childhood. Mr. Hutchinson’s adult problems suggest that he has an antisocial personality disorder; however, Dr. Klassen stated that he could not make this diagnosis because Mr. Hutchinson had no significant problems in his childhood. Dr. Klassen’s diagnosis was “personality disorder not otherwise specified with antisocial personality traits”. He stated that alcohol has caused him social problems. He further stated that Mr. Hutchinson’s repeated encounters with minors and his phallometric testing is consistent with paraphilic disorder.
29Dr. Klassen stated that Mr. Hutchinson was self-satisfied and did not see any benefit to long-term supervision. Dr. Klassen stated that having a framework in which to deal with Mr. Hutchinson would be very important. He cannot be counted upon to make the necessary changes himself.
30Dr. Klassen stated that scientific research has consistently shown that certain actuarial tests are the most accurate in providing probabilistic estimates of risk which indicate the percentage of people with the same score on the same risk assessment tool who would be expected to reoffend within a defined period of opportunity. They are used for long-term risk assessment. They are based on answers to questions. Information is also obtained from other sources in addition to the offender. The questions are based on things that psychiatrists know are related to sex offenders. In this matter, they describe the recidivism of people in a group who have Mr. Hutchinson’s percentage scores. The tests do not assist in predicting the severity of offending.
31Dr. Klassen explained that psychopathy is the personality dimension felt to be the most related to offending behaviour. The gold standard for measurement of psychopathy is the Psychopathy Checklist-Revised (PCL-R) test. It measures antisociality. It is helpful to predict compliance with treatment and community supervision. Mr. Hutchinson’s score was 31/40, which Dr. Klassen described as a high score, and placed him in the 88th percentile. Dr. Klassen stated that he prefers to not use the term “psychopath” because it is inflammatory; however, Mr. Hutchinson meets the criteria for it. Nevertheless, as noted above, Mr. Hutchinson cannot be diagnosed as having an antisocial personality disorder. Dr. Klassen stated that similar scoring individuals would be expected to present with significant difficulties as regards both community supervision and treatment responsiveness.
32The Static 99-R test is based an offender’s convictions. Mr. Hutchinson’s Static 99-R score placed him in the 66% percentile which Dr. Klassen described as not terribly high. The scoring means that of 100 randomly selected sexual offenders, 66% would be at a lower risk of re-offending in comparison to Mr. Hutchinson. Similar scoring individuals recidivated violently or sexually at a rate of 36% over 10 years of opportunity in the community.
33The Sex Offender Risk Appraisal Guide, known as SORAG, is a test used to determine risk for sexual violence. Dr. Klassen explained that unlike the Static 99-R test, SORAG uses convictions and charges. This is why the scores can be quite different between the two tests. Mr. Hutchinson’s SORAG score placed him in the 91st percentile. Similar scoring individuals recidivated violently or sexually at a rate of 80% over 10 years of opportunity in the community. Dr. Klassen also noted that base rates of recidivism have declined. Adjusting for the passage of time, Dr. Klassen estimates that similar scoring individuals might be expected to recidivate violently or sexually at rates of approximately 60% over 10 years of opportunity in the community.
34The Violence Risk Appraisal Guide, known as VRAG, is a test used to determine risk of general violent recidivism. Mr. Hutchinson’s VRAG score placed him in the 87th percentile. With the same correction as with the SORAG, similar scoring individuals recidivate violently at the rate of 64% over 10 years opportunity in the community.
35Dr. Klassen also applied the HCR-20 V3 test to Mr. Hutchinson. His score was 29/40 which shows a moderate risk. Percentile scores are not available for this test; however, Dr. Klassen stated that he would expect the probability of similar scoring individuals engaging in violent recidivism would be similar to that of the VRAG, 64%.
36Dr. Klassen used the Domestic Violence Risk Appraisal Guide, known as DVRAG, to assess the risk of intimate partner violence. Mr. Hutchinson’s score placed him greater than the 97th percentile. Dr. Klassen noted that this is a very high score. Similar scoring individuals recidivate violently, generally against an intimate partner a rate of 100%.
37Given these scores, Dr. Klassen stated that Mr. Hutchinson is at a moderate risk of future sexual recidivism. He is at a moderately high risk of violent recidivism in any form. He is at a very high risk of intimate partner violence. Dr. Klassen noted that Mr. Hutchinson has very few offence-free intervals. He has engaged in intimate partner violence in all of his long-standing relationships. His most severe offending was with his daughters. This offending is now somewhat distant.
38Dr. Klassen stated that with respect to risk, there are three factors to consider. Mr. Hutchinson’s most serious criminal behaviour is the molestation of his children. That behaviour is now remote. He has not recidivated for quite some time but that could be explained by the fact that he has been in custody. He is not inclined to participate in risk management solutions. He has pedohebephilia which can continue. The biggest challenge is the intimate partner violence.
39Dr. Klassen stated that in his opinion, Mr. Hutchinson’s risk of sexual offending appears to be substantial but the risk assessment tests do not identify that he presents with the probability of future sexual misbehaviour. Dr. Klassen explained that the age of an offender is a significant variable. People offend less as they age. After age 60, there is a significant reduction in crime. He stated that child molestation is most slowly impacted by age. The slope is more shallow. It involves the least physical vigour and is more of a manipulation. Mr. Hutchinson’s offences were against his own children who were subject to his authority. He likely will not have available to him the same circumstances and be in a position where he would re-offend.
40Dr. Klassen stated that he was not aware that Mr. Hutchinson had completed the National Moderate Intensity Sex Offender Program in 2013. Although the records indicate that he was an active member of the group and supported other members, Dr. Klassen questioned how Mr. Hutchinson could have completed the program successfully because he did not acknowledge the offences. He would have been a spectator helping the others. In response to the question of whether he would recommend further sex offender treatment, Dr. Klassen stated that having effective treatment would be difficult because Mr. Hutchinson has not acknowledged the underlying sexual problems. The risk would have to be managed externally.
41Dr. Klassen stated that assessing Mr. Hutchinson’s risk after age 60 is difficult because he has not been in the community very much for 17 years. He has not had much of an opportunity to re-offend. Dr. Klassen stated that he would be less anxious about Mr. Hutchinson’s risk if, hypothetically, Mr. Hutchinson were to be released when he is 64.
The Crown’s Position
42The Crown states that the primary purpose of the dangerous offender provisions is to protect the public, focusing on a particular group of offenders for whom preventative detention is necessary because they have exhibited a pattern of behaviour demonstrating a likelihood to commit further offences that could cause death, injury or inflict severe psychological damage.
43The Crown states that Mr. Hutchinson is 53 years old. According to Dr. Klassen, he is reaching an age where the risk for aggressive behaviour will show a significant age-related decline. The risk for offending against a minor should also show a decline but at a slower rate. His greatest risk is in the area of intimate partner violence and general violence. His risk of sexually offending against a minor is less of a concern.
44Dr. Klassen’s evidence and the actuarial test results provide insight into his risk of re-offending. Mr. Hutchinson is at a moderate risk of sex offence recidivism and a moderately high risk of violent recidivism. The court ought to be concerned about a moderate to high risk of re-offending.
45Dr. Klassen stated that Mr. Hutchinson has never taken any meaningful treatment for sex offender therapy. His position has been that because he did not commit offences, he does not need it. He told Dr. Klassen that he did not see the benefits of long-term supervision. Dr. Klassen stated that we cannot know if Mr. Hutchinson can be counted upon to make the necessary changes in himself. He is not amenable to treatment or the kind of work that needs to be done for his risk to be lowered in the community. We cannot rely on his claims that he will not commit these types offences in the future.
46Dr. Klassen noted that Mr. Hutchinson’s consumption of alcohol factored in his violent behaviour. Although he has abstained, the court should not take much comfort from this because he has been in custody for 9.5 of the last 11 years. Dr. Klassen described Mr. Hutchinson as self-satisfied. The only program in which he was willing to participate going forward is anger management treatment. He has not demonstrated that he can be controlled in the community. There is no treatment for pedohebephilia. There is only very limited evidence of his not acting on sexual impulses. He requires psychological and behavioural treatment prior to release. The treatment must continue upon release. He must be motivated to engage in the treatment. The court ought to be greatly concerned that Mr. Hutchinson fails to acknowledge any issue regarding his sexual preferences, he has never taken any significant sexual offending treatment and he states that he will never do it.
47The Crown states that the court should not take comfort from Mr. Hutchinson’s age and the possibility that he will have reduced access to young children. The court cannot rely upon his future personal circumstances as the nexus for protection of the public, given his previous offences and the absence of sex offender treatment. It is completely speculative. Mr. Hutchinson poses a substantial danger to public safety. There is no reasonable expectation that the risk of this danger could eventually be controlled in the community. Hope for rehabilitation is not enough.
48Based on Dr. Klassen’s evidence, the court ought to be satisfied that the tests set out in section 753(1)(a)(i) and (b) are met; therefore, Mr. Hutchinson ought to be designated a dangerous offender.
The Defendant’s Position
49The defence states that Mr. Hutchinson does not meet the dangerous offender criteria. He cannot be designated as a dangerous offender unless the court is satisfied that he presents a future threat and that he is intractable.
50With respect to threat, the court must consider treatment and manageability. There is no evidence that Mr. Hutchinson is intractable. In fact, Dr. Klassen stated that his risk of re-offending will decline once he reaches 60. The sexual offences occurred in a very limited context and are extremely dated. He can be safely managed in the community and there is hope for rehabilitation. Mr. Hutchinson has made significant progress. Dr. Hucker’s 2007 report states that Mr. Hutchinson denied having an alcohol problem. According to Dr. Klassen, he now finally has insight into the fact that alcohol causes him to engage in criminal and violent behaviour. It is a major risk factor in his life challenges. He abstained when he was in the community. While he was on parole, his urinalysis tests were negative. The fact that after his arrest in 2015, Mr. Hutchinson earned his high school diploma shows that he has attempted to better himself. He has taken various other programs.
51There is no suggestion of any sexual impropriety since 2004. While he has spent much of the time in custody, he has been out. He has had opportunities to re-offend but has not done so. According to Dr. Klassen, any risk that he poses is related only to a very specific group of people, being children in his care. This can be managed. Correction Services Canada can control where he lives and who he lives with. Therefore, his risk in the community can be managed.
52Mr. Hutchinson has participated in voluntary programs such as anger management, substance abuse and healthy relationships. He did complete the National Moderate Intensity Sex Offender Program in 2013. He self-identifies as indigenous and has participated in culturally specific programming, which he describes positively. He has sought one on one therapy with an elder. He has disclosed that when he was a child, he was sexually abused.
53There is no basis for concluding that Mr. Hutchinson is a dangerous offender and should be given an indeterminate sentence. Dr. Klassen concluded that there was a reasonable possibility of eventual control of risk in the community. External controls would be required until he is 60. Dr. Klassen stated that the risk of re-offending declines significantly after 60 years of age. This is not speculative. Rather, it is based on science. Mr. Hutchinson is manageable if not treatable. There is no suggestion of sexual impropriety since 2004.
Analysis
54Pursuant to s. 753(1)(a)(i), I must consider whether Mr. Hutchinson constitutes a threat to the life, safety, physical or mental well-being of other persons on the basis of certain evidence. Is there evidence of a pattern of repetitive behaviour, including the offences of which he has been convicted, that shows a failure to restrain his behaviour and the 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? Pursuant to s. 753(1)(b), I must consider whether Mr. Hutchinson, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his or her sexual impulses. Has the past failure established a likelihood that he will exhibit a similar failure in the future? Is the future failure likely to cause injury, pain or other evil to other persons? (see R. v. Sullivan, 1987 CanLII 6853 (ON CA), [1987] O.J. No. 2162 (C.A.) paras 32, 34 and 35)
55The most important issue is the level of risk that Mr. Hutchinson will re-offend in the future. Is there a likelihood that he will cause harm in the future by failure to restrain his behaviour or control his sexual impulses? According to R. v. Boutilier, 2017 SCC 64, [2017] S.C.J. No. 64, I must be satisfied that Mr. Hutchinson “poses a high likelihood of harmful recidivism and that his conduct is intractable”. The court defined “intractable” as “behaviour that the offender is unable to surmount”.
56According to Dr. Klassen, the risk that Mr. Hutchinson will be violent toward an intimate partner is quite significant. It is the highest concern. Dr. Klassen came to this conclusion after interviewing Mr. Hutchinson’s domestic partners. Nevertheless, Mr. Hutchinson has never been convicted of domestic assault. There is no evidence before me of domestic assault. Accordingly, I cannot give much weight to concerns about the probability of Mr. Hutchinson’s committing domestic violence.
Is there a pattern of repetitive behaviour?
57As noted above, in 2019, Mr. Hutchinson was convicted of offences involving sexual abuse of three of his children, C, A and B for six years, from 1994 to 2000. In 2008, Mr. Hutchinson was convicted of offences involving the sexual abuse of B and another child, E. They occurred for two years from 2002 to 2004. Six years of sexual offending in this manner plus two more constitutes a pattern of repetitive behaviour.
Does the pattern show a failure to restrain his behaviour?
58The fact that Mr. Hutchinson committed sexual offences against his children from 1994 to 2000 and then again from 2002 to 2004 shows that he failed to restrain his behaviour for eight years.
Is there a likelihood that he will cause death or injury to other persons or inflict severe psychological damage to other persons through failure in the future to restrain his behaviour? (s. 753(1)(a)(i))
59This test is not limited to sexual offences.
60The difficulty in this matter is that Mr. Hutchinson committed serious offences against his children over a long period of time, ending 17 years ago when B was 13.
61Section 753(1)(a)(i) requires me to consider what Mr. Hutchinson is likely to do in the future. Dr. Klassen’s evidence was that Mr. Hutchinson’s risk of sexual offending appears to be substantial but the risk assessment tests do not identify that he presents with the probability of future sexual misbehaviour. Dr. Klassen acknowledged the paradox. Based on this evidence, I cannot say that Mr. Hutchinson constitutes a threat with a probability or likelihood of causing injury or death to other persons through failure in the future to restrain his behaviour.
Is there a likelihood that he will cause injury, pain or other evil to other persons through failure in the future to control his sexual impulses? (s. 753(1)(b))
62This test focuses on failure to control sexual impulses in the future. As noted above, because Mr. Hutchinson does not present with a probability of future sexual misbehaviour, I cannot say that that there is a likelihood that in the future he will fail to control his sexual impulses.
63Regarding treatment and manageability, Dr. Klassen stated that having effective treatment would be difficult because Mr. Hutchinson has not acknowledged the underlying sexual problems. The risk would have to be managed externally. Dr. Klassen also stated that assessing Mr. Hutchinson’s risk after age 60 is difficult because he has been in the community for only limited intervals. He has not had much of an opportunity to re-offend. There would be reduced residual risk between 60 and 70. Those years would not call strongly for an extended period of supervision.
64Based on Dr. Klassen’s evidence, I cannot say that Mr. Hutchinson poses a high likelihood of harmful recidivism and that his conduct is intractable. Mr. Hutchinson is likely untreatable but he can be managed with external controls until the risk that he will re-offend has declined significantly.
65Because it cannot be said that Mr. Hutchinson has a probability of future sexual misbehaviour, nor can it be said that there is a likelihood of his causing injury, pain or other evil to other persons through a failure in the future to control his sexual impulses, I find that the high test of a threat to the life, safety or physical or mental well-being of other persons has not been met.
66Based on all of the above, I find that Mr. Hutchinson cannot be designated as a dangerous offender.
Is Mr. Hutchinson a long term offender?
67Section 753.1 provides that if an offender is not found to be a dangerous offender, the court may find an offender to be a long-term offender. The court must be satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the events 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 community.
68The long-term offender designation criteria are less onerous than those for a dangerous offender designation because the court must consider substantial risk of re-offending in contrast to a threat to other persons based on a probability of re-offending.
69The defence submits that Mr. Hutchinson should be designated as a long-term offender. The defence appropriately concedes that sections 753.1(2)(b)(ii) and the last two lines of sections 753.1(2)(a) apply to Mr. Hutchinson. They state that this court shall be satisfied that there is a substantial risk that the offender will reoffend because he has engaged in serious conduct of a sexual nature in the commission of other events of which the offender has been convicted and by his conduct in any sexual matter including that involved in the commission of the offence for which the offender is convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
70The admission that Mr. Hutchinson is a long-term offender is well founded. His behaviour fits into the requirements of s. 753(2)(a) and (b)(ii).
71There is no question that imposing a sentence of imprisonment of two years or more would be appropriate for Mr. Hutchinson. There is also no question that Mr. Hutchinson has engaged in serious conduct of a sexual nature in the commission of another offence of which he has been convicted.
72I find that Mr. Hutchinson ought to be designated as a long-term offender.
What is an appropriate sentence for Mr. Hutchinson?
73B, who testified that Mr. Hutchinson started sexually assaulting her when she was four years old, provided her views to the Crown and requested that the Crown provide them to the court. The Crown stated that B wishes to have some communication with Mr. Hutchinson. She wants to rebuild a relationship. Her brothers do as well. Deep down inside, they love him very much. They have all learned from their past. As adults, they can stand their ground. B’s view is that Mr. Hutchinson sentence ought to be time served.
74The defence states that Mr. Hutchinson’s sentence should be seven years and six months as well as a long-term supervision order, which I will refer to as a LTSO, of seven years because Mr. Hutchinson’s risk of re-offending drops off significantly as he approaches 60. He would be 60 years old at the end of a 7 year LTSO. Furthermore, there has been a decline in Mr. Hutchinson’s institutional aggressive behaviour. In the past, there were many incidents. Since 2015, there have been no threats to guards or assaults of inmates. His only misconduct was in 2019 for possessing contraband medication.
75Under a LTSO, Mr. Hutchinson will be monitored closely. He will have a residency condition. Every relationship he has will be monitored. This will be more stringent than parole. He will not be able to visit people at their houses without permission. He would require permission to buy a cell phone. Even if there is an anticipated breach or a concern that his manageability is failing, Mr. Hutchinson would go back to jail during which time, changes in the conditions could be considered. Sentences for breaches of LTSOs are significant.
Sentencing Principles
76Section 718 of the Criminal Code sets out the purpose and principles of sentencing.
77The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparations for harm done to victims or to the community; and,
f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community.
78Pursuant to s. 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
79A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The court should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction.
80Pursuant to s. 718.2(a), a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender including certain factors. The aggravating factors that relate to Mr. Hutchinson’s offences are:
i) that he abused members of his family who were his children;
ii) that he abused his position of trust or authority in relation to the victims; and,
iii) that the offences had significant impacts on the victims, considering their age and other personal circumstances.
81Mitigating factors are:
i) that he has attempted to better himself by obtaining his high school diploma and seems motivated to continue his education; and
ii) that he has participated in programs, specifically concerning his consumption of alcohol and has some insight how it causes him to engage in criminal and violent behaviour.
Sentence
82The defence states that I ought to take into account the sentence that Mr. Hutchinson received for the offences that he committed from 2002 to 2004. The Crown provided a copy of the transcript from the sentencing. I note that in paragraph 17, the sentencing judge, Justice Stong, considered a number of factors including the following:
i) the aggravating factors of breach of trust and position of authority;
ii) the age of the children;
iii) the length of time over which the assault occurred; and,
iv) the recommendations and observations made by the psychiatrist, Dr. Hucker, that Mr. Hutchinson appears to not be amenable to change.
83With respect to Mr. Hutchinson’s sentence for those offences, beginning halfway through paragraph 24, the court stated,
…I have indicated that these offences call for a period of incarceration of at least 10 years. For the time in incarceration… pre-sentencing incarceration from February 2005 until May 2005, he will be permitted, and be given credit on 2:1 basis. He will be given 6 months credit. Between May 2005 and March 13, 2008, a period of some 34 months in which he was in segregation… I intend to give him credit on the basis of 2½:1. That will be the equivalent of seven years and one month credit, making a total credit of seven years and seven months. Recognizing credit for seven years, seven months and keeping in mind that the offences called for a period of incarceration of at least 10 years, it appears to me to be a wiser route to sentence Mr. Hutchinson to a further period of incarceration but to a period of incarceration that would permit him to be subject also to a probation order. Having given the credit that I have given him, and notwithstanding that these offences call for a period of 10 years in custody, mathematically, he would be left having to serve 29 months. I deem it wiser to maintain control over Mr. Hutchinson’s behaviour in the community by way of a probation order. I intend to give him a sufficient credit for the time served and impose the following sentence.
Mr. Hutchinson, you will be sentenced to a further two years less one day in custody to be followed by a period of probation of three years. Both of those sentences are maximum reformatory sentences taking into account that you will have served over seven years to date…
84I note that the factors that Justice Stong took into account are also relevant here. Without minimizing the seriousness of these offences, they are somewhat less serious and fewer in number than the 2002 to 2004 offences. Considering all of the above, Mr. Hutchinson, I find that a fit and proper sentence for the six offences before this court is 7 ½ years.
85Without taking into account pre-trial custody, I would apportion the sentence as follows:
a. On count four, counselling to commit sexual assault, two years;
b. On count six, counselling to commit a sexual assault, two years consecutive;
c. On count eight, procuring as a parent for a sexual purpose, two years consecutive;
d. On count nine, assault, 8 months consecutive;
e. On count eleven, assault, 8 months consecutive; and,
f. On count twelve, assault, 6 months consecutive.
Pre-trial Custody
86The calculation of Mr. Hutchinson’s pre-trial custody is rather complicated. The defence provided a calculation which the Crown did not oppose. The following is the defence’s explanation of the calculation. When Mr. Hutchinson was arrested on April 12, 2016, he was serving a federal sentence until February 25, 2019. He has been in pre-trial custody since then. The time from his April arrest until the conclusion of his other federal sentence was 2 years and 10 ½ months. His credit should be 1 day for 1 day of all of that time. If one calculated pre-trial custody from February 25, 2019 to June 25, 2021, the date of submissions, it would be 2 years and 4 months. At a 1.5 ratio, it is 3.5 years. In R. v. Summers, 2014 SCC 26 para 2, the court acknowledged that the conditions at provincial facilities were terrible. Specifically, they are often overcrowded, dangerous and do not provide rehabilitative programs. Mr. Hutchinson was incarcerated at Central North Correctional Facility. He was in lockdown for 3 months. That comprised 89 days for which he should receive extra credit. Furthermore, he has been in custody during Covid for which he should receive an additional 6 months credit. He has been in segregation, in part at his own request, due to the nature of his convictions. This was 22 – 24 hours of lockdown at all times. He should receive a credit of 2 years and 10.5 months for this time. In total, with credit for pre-trial custody, Mr. Hutchinson has served just over 7 years of pre-trial custody time as of June 25, 2021.
87I accept the defence’ s calculation of the 7 years of pre-trial custody time as of the date of submissions, June 25, 2021. Between then and today, 99 days have passed. At a 1.5 ratio, they equate to 149 days. I will give Mr. Hutchinson credit for an additional day to make the calculation easier.
88Taking into account pre-trial custody, the sentence is structured as follows:
a. On count four, counselling to commit sexual assault, Mr. Hutchinson is sentenced to one day in addition to two years of pre-trial custody.
b. On count six, counselling to commit a sexual assault, Mr. Hutchinson is sentenced to one day in addition to two years of pre-trial custody, concurrent.
c. On count eight, procuring as a parent for a sexual purpose, Mr. Hutchinson is sentenced to one day plus two years of pre-trial custody, concurrent.
d. On count nine, assault, Mr. Hutchinson is sentenced to one day in addition to eight months of pre-trial custody, concurrent.
e. On count eleven, assault, Mr. Hutchinson is sentenced to 1 day in addition to eight months of pre-trial custody, concurrent.
f. On count twelve, assault, Mr. Hutchinson is sentenced to 6 months in addition to 1 month of pre-trial custody, consecutive.
89Beginning today, Mr. Hutchinson shall serve 6 months and 1 day in custody.
Long-term supervision order
90As noted above, the defence states that Mr. Hutchinson should have a long-term supervision order of 7 years. That will take him to age 60. His risk of offending goes down significantly after that.
91Dr. Klassen stated that if a person is not interested in self-change, external controls are necessary for management. A framework in which to manage Mr. Hutchinson is very important because he cannot be counted upon to make the necessary changes himself. He is not inclined to participate in risk management solutions. Assessing his risk after age 60 is difficult because he has had very few offence-free intervals. He has been in the community for only a couple of years in the last 17. He has not had much of an opportunity to re-offend. Dr. Klassen stated that he would be less concerned about Mr. Hutchinson if, hypothetically, he were to be released when he is 64.
92I do not agree with the defence that Mr. Hutchinson’s mandatory LTSO should be only 7 years. While he will be 60 in 7 years, the likelihood of his causing injury in the future still remains after he turns 60. Age 60 is not a magic number where the risk evapourates. As noted above, Dr. Klassen stated that child molestation is the offence most slowly impacted by age. In 10 years, Mr. Hutchinson will be 63. Accordingly, I find that a LTSO of 10 years is appropriate for Mr. Hutchinson.
Ancillary Orders
93Pursuant to section 487.051(1) of the Criminal Code, Mr. Hutchinson shall provide samples of his bodily substances for forensic DNA analysis.
94A mandatory weapons prohibition under s. 109 of the Criminal Code also applies. Mr. Hutchinson is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. He is also prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life.
95Pursuant to sections 490.012(1) and 490.013(2.1) of the Criminal Code, Mr. Hutchinson is required to comply with the Sex Offender Information Registration Act S.C.204, c. 10 for life.
Justice M.E. Vallee
Released: October 12, 2021
NOTE: These reasons were delivered orally on October 8, 2021. This written ruling is to be considered the official version and takes precedence over oral reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the written version that is the official record to be relied upon.