COURT FILE NO.: CR-19-31 CR-19-32 DATE: 2022 03 25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Michelle Levasseur, for the Crown Crown

• and -

CARL OBERMEIER Allison Craig, for the Defendant Defendant

HEARD: February 11, 2022 via zoom

WARNING RESTRICTION ON PUBLICATION There is a ban on publication in this matter pursuant to s. 486.4(1) of the Criminal Code of Canada.

Reasons for Sentencing

LEIBOVICH J.

[1] On March 23, 2021, I convicted Mr. Obermeier of sexual assault and assault. Subsequently, Mr. Obermeier pleaded not guilty to breaching his probation order, but counsel agreed that, based on my March 23rd findings, he should be found guilty of breaching his probation’s term of keeping the peace and being of good behaviour. The Crown brought a section 752.1 application to have Mr. Obermeier assessed because the Crown was contemplating a dangerous offender application. The assessment was granted, on consent. Dr. Woodside, who conducted the assessment, prepared an 80-page report. The Crown then brought an application to have Mr. Obermeier declared a dangerous offender. All the procedural steps have been followed.

[2] At the hearing, the Crown and the defence were in agreement that:

1. Mr. Obermeier met the dangerous offender criteria;

2. Mr. Obermeier should receive a fixed sentence, as opposed to an indeterminate sentence;

3. Mr. Obermeier should be subject to a 10-year supervision order; and

4. Mr. Obermeier should be subject to a DNA order, weapons prohibition order, SOIRA order and a s. 743.21 non-communication order.

[3] The Crown and the defence are at odds regarding what length of time Mr. Obermeier should serve in custody. Mr. Obermeier has served 646 days in custody. The defence submits that he should not receive anymore time in jail, while the Crown submits that Mr. Obermeier should receive an additional 5 years in jail.

Circumstances of the offence

[4] The circumstances of the offence are set out in full in my reasons for judgment; R. v. Obermeier, 2021 ONSC 1831. But briefly, Mr. Obermeier and the complainant had a relationship. Mr. Obermeier was upset and angry because he was concerned that their relationship was at risk. Minutes before entering the garage, where the incident took place, Mr. Obermeier texted the complainant and asked if they could have sex. She said no. I found the following:

…I agree with the Crown’s submissions that the accused attempted to sexually dominate the complainant in the garage just as he had requested in the 9:17 pm text. The accused clearly cared for the complainant. However, the picture painted by the complainant of the accused snapping and losing control and sexually assaulting her is supported by the text messages. I am satisfied beyond a reasonable doubt that she did not consent to the sexual activity in the garage.

I find that:

a) The accused entered the garage in a highly agitated state. He was ranting. He was angry. He was talking about hurting people and snapping. JR was trying to calm him down. It was in this context that JR told him, that if he was going to slap someone, he should slap her. She did not want or expect him to hit her;

b) The complainant sat on the toolbox. The accused moved in front of her and hit her on the left side of her face. She snapped to the right. He then batted her like a cat with open palm slaps to her face, three or four times;

c) She had never been hit as hard as that. She had a mark on her face, it was tender, with a left-hand ring imprint. The subsequent three or four hits were not as hard;

d) Mr. Obermeier took his genitals out of his pants, reached the back of her head and tried to get her to perform fellatio. She turned her head away;

e) He then grabbed her by the shoulders and threw her up on the passenger side of the car. She was facing the car; he was behind her. She told Mr. Obermeier that she was going to be sick and she started to throw up;

f) He pulled down her pants and underwear to above her knees, she was throwing up and he told her to let it out. She threw up on the hood of the car. She told him no, you do not have to do this, please god. He was playing with his genitals, trying to penetrate her. She said stop, please god do not do this, you do not have to do this.

g) Mr. Obermeier kicked out her legs and started to grab her genitals, she was trying to wiggle around to make it difficult for him. He touched her genitals and penetrated her vagina digitally. He was struggling to get an erection; and

h) She went in a crouching position, almost like a childlike ball. She was crying. Mr. Obermeier was hugging her, saying please J., please J., begging and pleading her to let him do what he wanted. He then let her go.

[5] Mr. Obermeier spoke about the predicate offence with Dr. Woodside. He continued, as is his right to dispute the complainant’s allegations. Dr. Woodside noted:

Looking back on the offense, he stated he did sexually touch her but again noted she never used their safe word, “Monkey”. He reported feeling like a scapegoat, a way for her to get out of her financial difficulties [referencing that she had talked about another rape victim receiving financial compensation]. He again noted he had slapped her and regretted that. Of the incident, he said, “It was nothing compared to our role plays…they were so much further than what we did in the garage. I thought I went through all the right steps, during our roleplays.”

When asked about the text message exchanges in which it appeared she did not want to have sex, he said, “Well that was through the text messages, when we were together, it was different – everything seemed fine – there was no “stop” or her saying ‘Monkey’.” He also thought that her being drunk and throwing up might have stopped her from wanting to have sex as well.

Impact on the victim

[6] The victim has suffered significantly as a result of the offence. It has left an emotional toll. She has felt anxious, anger, shame and fear. She is depressed. She looks at the world a different way, she no longer likes going out in public and she feels disconnected from those around her. She eloquently and sadly wrote:

Vivid memories from that night still haunt me. The assault itself was sudden and unexpected. I was in a very dangerous situation; the outcome was uncertain. Surviving an occurrence of that magnitude left me to carrying a horrible burden. I'm supposed to think that the worst thing that could happen to me has happened. However, the emotional toll has left me feeling a host of emotions such as anxiety, irritability, shame, fear, anger, & despair. I often feel sad & hopeless leaving me isolated not wanting to further burden others around me. The consequences from the offence sometimes leaves me wishing I was dead; I am reminded there was a period of time when the outcome was really unknown. That I have no reason to feel depressed, but that's all I feel at times.

My new unsolicited life revolves around hypervigilance. It is exhausting. I always have to think about a safety plan. Where is the closest exit, what is my backup exit? Right after the assault took place, I hid all of the knives and sharp objects in the house to prevent weapons becoming easily accessible in the wrong hands. I often question how many times have I driven a certain route? How long has that car been behind me? I have gone out of my way and double backed when going places.

[7] The victim’s mother also filed an impact statement. She wrote of a mother angry and shaken that she could not protect her daughter:

I am incredibly angry.

I am angry that she has had to endure such and the lasting impact this trauma. As a mother, nothing is more agonizing than not to be able to protect your child.

Circumstances of the offender

[8] Dr. Woodside’s 752.1 psychiatric assessment was filed at the dangerous offender hearing. It contains a thorough review of Mr. Obermeier’s personal, medical and criminal history.

[9] Mr. Obermeier was 59 years old. He was born in Toronto. His parents were physically assaultive to each other and they separated when he was 10-11 years old. His father, who suffered from alcoholism and chronic pain from a broken back, committed suicide at the age of 49. Mr. Obermeier was 22 at the time and the suicide deeply affected him. Mr. Obermeier had a good relationship with his father before he died. After his father’s suicide, his relationship with his mother deteriorated. He said that she was physically abusive and should have been locked up. He has not seen his mother since 2005. Mr. Obermeier has an older sister. He stated that he was close with her, but he hasn’t seen her or his younger sister since 2005.

[10] Mr. Obermeier has a younger brother with whom he does have a current relationship with him, and he speaks to him often. He and his brother have purchased a piece of property and their plan is to build cabins which can be used and rented by hunters during the season.

[11] Mr. Obermeier was sexually abused on two occasions as a youth, at the approximate age of 7 and then when he was 10. He tried telling his mother, but she did not believe him.

[12] Mr. Obermeier had been involved in a lengthy common-law relationship with Linda Hutchins for 23 years from 1983 to 2004. He had two children with Ms. Hutchins. He does not have a relationship with his children or Ms. Hutchins, who passed away recently.

[13] Mr. Obermeier is supported by Ontario Disability Support Payments, and he performs some renovation and handy-man work. He left high school in grade 9 but stated that he finished grades 9-11 in jail. He is a certified chimney cleaner and he worked as a chimney cleaner for 6 years from 1984-1991. He supported himself selling drugs, for a few years. He did quite well, making between $100,000-150,000 a year.

[14] Mr. Obermeier stated that he started using drugs when he was 10-14 years old. He used marijuana and LSD and started drinking. He has used marijuana intermittently throughout his life. He estimated that he has consumed once or twice per month. He has used cocaine a few times. He stated that, by the time he was 14-15 years old, he was drinking until he was drunk. As an adult, he usually has no more than one or two beers.

Criminal record

[15] Mr. Obermeier has a lengthy and serious criminal record. I will describe his significant offences.

1980-02-25 – Armed Robbery, unlawful use of a firearm – total sentence of 4 years

[16] Mr. Obermeier was 18. He robbed a small store in New Brunswick. He entered the store dressed in a navy-blue snowsuit and ski mask, carrying a loaded, sawed-off rifle. He demanded money from the victim and before leaving, tied up the victim with packing tape and exited the store and drove off with his friend.

[17] Mr. Obermeier discussed this offence with Dr. Woodside. He said that at the time he was taking drugs and the other individual convinced him to commit the robbery. He described it as “stupid, as they say, ‘young, dumb and full of cum.’” Dr. Woodside asked him if he felt bad. Mr. Obermeier stated that, “tying him up and having a rifle – probably scared the shit out of him.”

1991-11-12 – Sexual Assault [12 months and 2 years’ probation], plus 30 days consecutive for breaching his no contact provision of his bail

[18] A transcript of the trial proceedings has not been produced. However, we have been provided with the reasons for sentencing. The following seems clear: Mr. Obermeier sexual assaulted his 19-year-old stepdaughter at his farmhouse. They had been drinking. The sexual assault involved sexual touching and Mr. Obermeier ejaculated. The victim was impacted by the offence.

[19] In 2009, when interviewed at Joyceville Institution, Mr. Obermeier provided the following account:

When asked about this Sexual Assault conviction, Mr. Obermeier acknowledged that the victim was his step-daughter. He stated that his actions were ‘revenge’ in relation to what he perceived as injustices that she was committing against him. Specifically, as per Mr. Obermeier, every time he came home from work and wanted to hold his young son, the victim would ‘grab him first—like he was hers’. This angered him. The ‘icing on the cake’ was when the family went to a friend's house to watch movies. His daughter was sitting on the couch and he asked her to move so that he could rest his back. She ‘took off outside’ and the following day, his wife left him. He offered that his wife was pregnant at the time. As per Mr. Obermeier, these issues ‘accumulated over time’ and he wanted to exact ‘revenge’ on the victim. His plan was to ‘masturbate on her’. As per Mr. Obermeier, the victim was 19 at the time.

[20] Mr. Obermeier discussed this incident with Dr. Woodside. He said that he was supposed to be at the farm with his stepson and his friends, but the complainant wanted to attend, so he agreed. They were all drinking, and:

“I was starting to get a little pissed off, about what Kristina was doing with my son – every time I come home and wanted to hold my son, she would hold onto him and wouldn’t let me hold my son – I decided I wanted to get back at her.”

“I just started feeling her breasts up and I did ejaculate on her…”

[21] He did not believe that he rubbed semen on her face, as set out in some of the reports, but acknowledged ejaculating “towards her face.”

[22] He did not think that the offence was particularly sexual in nature but agreed that he was aroused. He stated that he had no support from his common-law partner at the time, Linda, in dealing with his stepdaughter’s behaviour. When asked about what impact the offence might have had on the victim, Mr. Obermeier told Dr. Woodside:

“I don’t know…we were still talking after that…she got a boyfriend and got pregnant…had a son.” When prompted further, he stated, “she apologized too, about taking my son away all the time, after she had her son, she realized about taking someone’s son…”

2004-04-28 – Sexual Assault; Administer Noxious Thing with Intent – total sentence of 3 years

[23] Mr. Obermeier pleaded guilty to the offences. He was friends with the victim’s husband. He was at her house and having coffee. He drugged her coffee with Tomazepam. She felt unwell and laid down. When she awoke, she found her shirt un-tucked and her tampon had been removed. Mr. Obermeier’s semen was found in her vaginal area pointing towards close genital contact, but the victim had no memory of how far things had progressed.

[24] According to CAMH records, Mr. Obermeier attended individual counselling sessions with Dr. Abramowitz at the Sexual Behaviours Clinic between August 2006 to October 2006 and was seen for a total of 4 sessions. He noted that it was unfair that there were no consequences to the victim. He said that he committed sexual acts because it was “the thing that would make them [the victim] feel the worst.”

[25] In discussing this offense with Dr. Cimbura at Joyceville Institution in 2009, he said that he believed that the victim was using her sexuality to take advantage of him. Mr. Obermeier stated that he wanted to ‘hurt her’ and ‘make her feel bad’ because she "manipulated and used" him. He figured it would be easier to do if she was drugged. Mr. Obermeier stated that he was not sexually aroused and that this, in his opinion, was not a sexual crime. He stated that the ‘point was to hurt her financially’ because she used him. He stated that this was revenge.

[26] Mr. Obermeier described the offenses in the following manner during an interview with his parole officer in June 2012:

He described feeling used and taken advantage of because according to Mr. Obermeier she was using her sexuality to proposition him. He continued completing tasks for her and getting nothing in return. He had seen a man other than the victim’s husband stay at her place and he assumed that they had sexual relations and he was angry that she could do that with him and not himself.

He admitted to attending the residence with having administered sleeping pills with the intention of sexually assaulting the victim. He told her at this time that for him to provide her with the money "you have to put out this time, this is bullshit, and I'm not doing it anymore". He describes trying to remove himself from the situation prior to March 6, 2003 however was always getting drawn back in by the victim.

[27] Mr. Obermeier spoke to Dr. Woodside about the assault. He said that he had helped the victim out financially. She agreed to take care of him and offered him a “blow job”. Mr. Obermeier said that he would have been happy to forgive the debt for a blow job but “she kept on putting me off…so I thought I was being played.” He got “some sleep stuff [he had a prescription for it] and I put it in her coffee cup.” He stated, “I kept thinking I’m getting played – how dare she play me like that…I should have just walked away…but I just let the thoughts keep going.” He was upset about being played. He wanted to teach her a lesson. She told him she was going to go the bedroom to lay down. He took a shower and then entered the bedroom – “I started to touch her.” He undressed her at the time. He stated she was “foggy” but was still talking to him. When asked if she ever passed out completely, he stated, “possibly…” He started “feeling her up and I was going to penetrate her but I realized she was on her period. I stopped there and I just jerked off…” He acknowledged ejaculating on or near her vagina.” He noted he had put his penis in her vagina “a little bit…I think I just rubbed it on her front.” Dr. Woodside asked Mr. Obermeier what he was thinking at the time. He stated, “well she deserved it, leading guys on, what do you expect is going to happen? I didn’t stop to think, I didn’t know any better”

2008-11-04 – Manslaughter, Aggravated Assault – Total sentence of ten years including 18 months presentence custody at 2-1 credit

[28] Mr. Obermeier pleaded guilty to the above offences.

[29] The incident took place on October 20, 2006 when Mr. Obermeier was on parole from his 2004 sexual assault sentence. The victim, Mr. Stewart, was at his residence. Mr. Obermeier was upset when he saw Mr. Stewart hug and kiss Mr. Obermeier’s daughter. Mr. Obermeier punched him in the face. Mr. Stewart left and returned to Mr. Obermeier’s apartment with Mr. McConnell and Mr. McConnell’s 16-year-old son, Justin. They demanded to speak with Mr. Obermeier. Ms. Hutchins, who answered the door, refused and asked the three to leave. When they refused, she decided to call the police. Mr. Obermeier then retrieved a six-inch knife from under a mattress. In the apartment’s hallway, he put Mr. McConnell in a headlock and stabbed him twice in the torso. Both wounds were fatal. Mr. Obermeier then stabbed Mr. Stewart in the neck. Mr. McConnell was pronounced dead at the scene. Mr. Stewart survived but he needed three weeks of hospitalization, suffered nerve damage, required speech therapy and a nutritionist had to re-teach him to swallow.

[30] Justice Lipson described the attack as a “gross overreaction of rage in response to what I consider to be mild provocation. The attack was brutal and horrific.” Justice Lipson noted that Mr. Obermeier regretted his conduct and expressed remorse but that he minimized his actions when talking with the author of the pre-sentence report.

[31] Mr. Obermeier discussed this offence with Dr. Woodside. He stated that he did not mean to stab the deceased. He was just trying to defend himself. With respect to Mr. Stewart, Mr. Obermeier said that he had placed the knife to his throat and that Mr. Stewart kept moving around. Dr. Woodside asked Mr. Obermeier about his thoughts regarding the incident. He said:

Well, unfortunately, a man had to die. I was trying to protect my family and myself as well. I was scared for my life and my wife’s life, the three guys coming down like that, saying they were going to smash me. Once I was at the door, they just started on me, there was no talk.

[32] When asked if he blamed the victims, he stated, “Well, I had a knife, I’m to blame for that, but if you see a knife, the average person would back away, wouldn’t you?”

[33] He said to Dr. Woodside that Ms. Hutchins did not testify on his behalf because he later found out she “was fucking around with both those guys, six months after while I was in the East detention, another guy in jail told me that she was fucking around with both those guys.” While he had no confirmation of this, he stated, “I would 100% believe that was true.

[34] When asked if he felt guilty about what happened, he said, “I never planned for any of this to happen, no matter what I say or do, I can’t replace that, I had a lot of repeating dreams in jail – it hurt me a great deal.”

2016-08-04 - Assault Peace Officer Causing Bodily Harm, Threatening Death x 2, Breach of Recognizance – Equivalent of a 15-month sentence and three years probation

[35] Mr. Obermeier served his entire sentence for his manslaughter conviction. At the end of the sentence, he was placed on a s. 810.2 peace bond on November 2, 2015. On November 5, 2015, days after being released from jail, the above offences took place. Mr. Obermeier engaged a paid duty officer in conversation. Mr. Obermeier then took off his shirt and pulled down his pants, exposing his rear end. The police officer asked him to get dressed as there were kids going to school around that time. Mr. Obermeier then walked into the construction zone walking erratically, yelling and screaming at the police officer, calling her a child molester, and then hitting the construction equipment that was found in that site. He then focused his attention on a TTC employee. He was yelling and three officers were called there to assist. While speaking to the three officers, Mr. Obermeier clenched his fist and told the officers that he was going to "kill you motherfuckers". He also said, "You don't know who you're fucking with, you're gonna get yours." When the officers attempted to place Mr. Obermeier under arrest and handcuff him, he aggressively resisted, preventing the officers from effecting the arrest. Mr. Obermeier fell to the ground on his back and continued yelling and struggling. He was swearing at the officers. Two officers had to roll him over and cuff his feet and two sets of handcuffs had to be used to finally restrain Mr. Obermeier. During the struggle, one officer dislocated his finger.

[36] Mr. Obermeier pleaded guilty to the above offences. Mr. Obermeier spoke about this matter with Dr. Woodside, and while I won’t detail his comments, his version of what took place is at odds with the facts that he accepted at his guilty plea. Mr. Obermeier said that he pled guilty so that he could get time served. He received a sentence of 15 months but was given credit for being in jail for 9-10 months. He also received 3 years’ probation and was released again in 2016. Mr. Obermeier was on this probation order at the time of the predicate offence.

Terms of his release

[37] Mr. Obermeier was released from custody for the predicate offences on April 24, 2020. As part of the terms of his release, he was not to be out of residence unless in the continuous company of his surety. Furthermore, he was subject to a 10:00 p.m. to 6:00 a.m. curfew. The only exception was for medical emergencies. Mr. Obermeier’s release terms were varied and loosened in November 2020. He was allowed to be out of the residence without his surety, but with the permission of his surety on Mondays, Wednesdays and Saturdays, between the hours of 10:00 a.m. and 6:00 p.m. as long as he remained within the borders of the City of Toronto. Counsel advised that because of the terms of his release, Mr. Obermeier, among other things, was unable to attend the funeral of his former long-time common-law partner, Linda Hutchins.

Dr. Woodside’s report

[38] Mr. Obermeier has spent many years in jail for a variety of offences. Dr. Woodside, in his comprehensive and thorough report, reviewed the numerous past assessments that were conducted on Mr. Obermeier. I will not detail them in my reasons except for those that post-dated his 2016 release from jail.

[39] A probation and parole note from October 6, 2016 noted the following:

Carl is re-integrating himself within the community and has been experiencing related stressors. Has spent lengthy periods in Federal custody. He mentioned that he has had depression issues. Finds living in Toronto stressful and plans to return to the Minden area where he resided formerly. Reportedly suffers from arthritic pain in his legs primarily. Is applying for ODSP and seeks the assistance of Dr. Gojer.

[40] Dr. Gojer noted on November 3, 2016 that Mr. Obermeier was reporting severe depression and suicidal thoughts although he was coping at the time of the assessment. Mr. Obermeier felt tense, somewhat depressed and reported flashbacks of his past abuse at times. Dr. Gojer diagnosed him as suffering from PTSD. Dr. Gojer prescribed various medications and arranged follow-up in one month and indicated he needed to see a counselor one on one.

[41] Mr. Obermeier was also seen in the Emergency Department of CAMH on December 6, 2016, seeking a prescription for valium; he said if he did not get it, he would end his life or use heroin. He reported having served 10 years in jail for a murder and aggravated assault and reported finding it difficult to function independently. Despite reporting he wanted to give up, he also noted he had two additional appointments to attend that afternoon (at a pain clinic and then to get processed for ODSP). He noted he was on probation and was also seeing Officer S. Peters. He was provided a prescription and was escorted out of the emergency department with security. The staff psychiatrist noted there was no evidence of a primary psychotic disorder or bipolar disorder.

[42] Additional Probation and Parole records from May 2018 indicated Mr. Obermeier was encouraged to enroll in anger management counselling but he declined. “According to the client, he does not have an issue with anger.”

[43] According to Dr. Woodside’s review of Mr. Obermeier’s institutional history, Mr. Obermeier:

1. completed the Anger and Emotions Management Program and National Sex Offender Program - Moderate Intensity between 2004-2005 while at Warkworth Institution;

2. completed 27 out of 36 sessions in the Reasoning and Rehabilitation Program in 2006 but did not complete the program due to being released;

3. during his release in 2006, participated in a Sex Offender Relapse/Prevention program. File information indicated that Mr. Obermeier had been adjusting well on statutory release for an approximate six-month period prior to being suspended and arrested for first degree murder and attempted murder in October 2006;

4. Mr. Obermeier successfully completed the High Intensity Violence Prevention Program on November 4, 2011. The following was noted: “It is the opinion of his Case Management Team that he lacks insight and although he is able to accept some responsibility he continues to blame others, specifically the victims.”;

5. in 2012, Mr. Obermeier participated in the Moderate Intensity Family Violence Prevention. File notations indicated Mr. Obermeier initially felt his referral to this program was “foolishness.” According to National Parole Board comments, the following was noted: “Despite completing these two core programs, you have not reduced your risk for recidivism or fully addressed your dynamic risk factors… You have declined to participate in any maintenance programming.”

6. Mr. Obermeier completed the Violent Offender Maintenance Program on August 19, 2014. Reports indicated he understood the concepts of problem-solving skills and emotion management and was making an effort at employing the skill of thought stopping in his self-management plan. Mr. Obermeier also participated the previous months in some individual psychological counselling sessions at Warkworth and was described as having open and honest conversations with the psychologist.

Dr. Woodside’s opinion

Diagnosis

[44] Dr. Woodside stated that Mr. Obermeier presented with “limited insight and judgment and demonstrated a tendency to blame others for his actions, seeing himself as a victim.” He stated that Mr. Obermeier has an antisocial personality disorder:

In this case, he has a history of symptoms of conduct-disorder prior to the age of 15 and has been involved in criminal activity from a young age, including violent and sexually violent offending over the course of more than 30 years. Overall, there appears to be good evidence in support of this diagnosis for Mr. Obermeier.

[45] Dr. Woodside was unclear if Mr. Obermeier also had a sexual paraphillia. Dr. Woodside stated that it appeared that Mr. Obermeier’s sexual offences were linked not to a sexual paraphilia but to his antisocial personality disorder.

Risk to Re-offend

[46] Dr. Woodside assessed Mr. Obermeier’s risk to re-offend. He used a number of actuarial tools such as the PCL-R, the SORAG, the Static-99R and a structural tool called the Risk for Sexual Violence protocol. He concluded that:

a) With respect to the PCL-R score – “ His total score on the PCL-R places him at the 57th percentile of male prison inmates in the PCL-R standardization sample; that is, 56% of individuals in the standardization sample would have received a lower score and 43% a higher score”

b) With respect to the SORAG score – “ This score placed him at the 73rd percentile (i.e. his score was higher than approximately 70% of sexual offenders in the development sample) and in the 6th of 9 ascending categories of risk on the instrument. Among the development sample, 67% of offenders in the same risk category committed a new violent offense within 12 years of opportunity. Taking into account the estimated measure of error associated with the SORAG, Mr. Obermeier’s true score would be expected to fall within one risk category above or below this result. This means the expected probability of violent recidivism is expected to range between 58% and 76% within 12 years of opportunity”; and

c) With respect to the Static-99R – “ Mr. Obermeier’s score was higher than at least 65% of individuals in an updated development sample of routine sex offenders. In a development sample of high-risk/high-needs offenders, approximately 22.9% of individuals with the same score committed a new sexual offense within 10 years of opportunity. As expressed in another manner, his risk of recidivating sexually was 1.39x (i.e. almost one and half times higher) that of the average sex offender. According to the instrument, this score placed Mr. Obermeier in an average category for sexual recidivism. Of note, these risk estimates refer only to the individual’s risk for sexual recidivism, as compared with the SORAG, which considers risk of both non-sexual and sexual violence.”

[47] Dr. Woodside also used a structured professional judgment tool, the Risk for Sexual Violence Protocol (RSVP), to identify both risk-enhancing and protective risk factors with respect to sexual recidivism. The RSVP identified that Mr. Obermeier had the following risk-enhancing risk factors: a) chronicity of sexual violence; b) physical and psychological coercion in sexual violence; c) attitudes that support or condone sexual violence; d) problems with intimate and non intimate relationships; e) problems with self-awareness, stress/coping and supervision; and f) non-sexual criminality.

[48] The following risk-enhancing factors were identified as possibly/partially present: a) sexual deviance; b) escalation of sexual violence; c) extreme minimization or denial of sexual violence; d) problems resulting from child abuse (offender’s own history of being abused); e) psychopathic personality disorder; f) problems with substance use; and g) problems with treatment.

[49] Dr. Woodisde stated that “Reviewing the RSVP criteria as noted above, in my opinion these would support Mr. Obermeier’s case being identified as high/urgent priority and that immediate action is required.” With respect to Mr. Obermeier’s overall risk to re-offend, Dr. Woodside stated:

In this case, Mr. Obermeier’s previous offending behaviour at least provides an indication of the type of violent and sexually violent behaviour of which he is capable. Mr. Obermeier has previously been involved in the death of at least one individual and has now engaged in sexually assaultive behaviour with three females, including drugging a victim on one occasion to effect the sexual assault.

Overall, when combining/considering both clinical/dynamic and actuarial assessments of risk, I view Mr. Obermeier as being at above average risk for violent recidivism and at average to above average risk for sexually violent recidivism.

Letters of support and current thoughts

[50] The defence filed two letters of support, one from his surety and one recent neighbourhood friend. Both describe changes that they have witnessed while Mr. Obermeier has been on release for the predicate offences.

[51] Jamie Neal stated Mr. Obermeier has become more than a friend. He is now considered a member of the family. Ms. Neal stated:

Throughout the last 21 months I have seen a lot of positive changes with Carl. He has demonstrated time and time again, that he is committed to moving forward in his life and abandoning previous attitudes, feelings and behaviours that he held in the past. Over the last 21 months, he has spoke to me on numerous occasions about his desire to work hard, make amends with people in the past and to never return to the "system" it has been my observation, that he is genuine and is sincerely committed to making and sustaining these changes. Over these last 21 months, he has demonstrated that he is responsible, motivated and capable of making wise and informed decisions.

[52] Mr. Chia stated that he has known Mr. Obermeier since the summer of 2020 and that he has been very helpful to him and has helped with home improvement projects. He said that “Over the last year I have noticed a much calmer and more patient attitude towards stressful and frustrating situations. He has an engaging attitude and has been enjoyable to work with him.”

[53] Mr. Obermeier spoke, at length, with Dr. Woodside. He described himself as “loyal, hardworking, sometimes overbearing too much sometimes, a dreamer sometimes, overall I try to do the right things and see people succeed.” He said that others would describe him as a nice guy who has done bad things.

[54] Mr. Obermeier said that jail was difficult and not a positive environment and that it was torture at times. However, he also believed his jail experience had made him stronger, noting, “you have a lot of time to reflect on your life…you have more sympathy, more give and take with people, giving them more leeway. You get a feel for people…”

[55] He told Dr. Woodside that, at the moment, he was in a very peaceful place, surrounded by people who genuinely care about him. And that he was on the right path. He enjoyed working with his hands in construction. Dr. Woodside asked him about any changes he needed to make to avoid further criminal involvement, he noted he needed to avoid “negative people” and that he was now scared about involvement in a further relationship. He stated in future, if he had any sexual desire, he would hire a prostitute/an escort.

[56] Mr. Obermeier spoke at the sentencing hearing. He read out something he found on the internet that he thought is appropriate for him.

I’m trying. I’m trying to get better, trying to be happy, trying to stay focused, trying not to get upset, trying not to overreact, trying not to overthink, all I can do is try, no one is perfect, don’t expect me to be.

[57] Mr. Obermeier stated that if he had to go back into custody, it would be the end of everything. He would not be able to restart in the community and he would not come out a better man. He has made a lot of friends during the pandemic and he is trying.

Timeline for programming

[58] The Crown filed material about the different types of programming available in the federal institution and about the difficulties treating and coming up with a plan when dangerous offenders are not given a federal sentence.

[59] A statement from Lindsay Maahs, Parole Officer Supervisor with the Ottawa Area Parole Office, Correctional Service of Canada, was filed on consent. She described the comprehensive intake assessment process, called OIA, that is undertaken by Corrections. She stated that:

The reintegration process begins with a comprehensive OIA to determine risk factors and need areas, identify appropriate interventions, and begin consideration of an eventual appropriate release plan. The OIA process involves the systematic collection and analysis of comprehensive information on an offender's criminal and mental health background, social situation, education, factors relevant to determining criminal risk and factors relevant to identifying offender needs - the OIA results in a multi-disciplinary correctional plan outlining treatment needs and other interventions throughout the sentence.

[60] She stated that when an offender who is subject to a long-term supervision order and receives a sentence of time served, the following difficulties arise:

There is no timeframe for completion of the OIA in these circumstances, other than that it must be completed as soon as possible, as it is required before any supervision plan or conditions can be put in place. Given that the offender becomes the immediate jurisdiction of the Correctional Service of Canada (CSC), this means that CSC is required to immediately begin to supervise the offender with little to no information in the initial days.

[61] With respect to developing a community strategy for the offender’s release, Ms. Maahs noted again the problem encountered when the offender had received a sentence of time served:

Again, as offenders sentenced to time served and an LTSO become the immediate jurisdiction of CSC, this means that CSC is charged with managing and supervising a case with little to no information in the initial days, and without established Special Conditions for several weeks until CSC can complete the OIA, develop the Community Strategy, and then until the Parole Board of Canada can review the case and impose the Special Conditions. It is also important to reiterate that this all occurs while the offender is in the community, and without the benefit of comprehensive assessments, without the offender having had ongoing correctional programming/interventions and evaluations, and before the offender is established with a Case Management Team.

[62] With respect to the timeline for Mr. Obermeier to receive programming while in jail, if he were to receive a federal sentence, the Crown filed this email, on consent, from a federal corrections program officer:

A realistic timeframe to complete programming would be approximately 3 years. The reasoning for this is the current waitlists due to the effect Covid has had on program delivery.

Typically, a newly sentenced offender would receive his initial Primer Program within the first 3 to 4 months of being accepted into the federal penitentiary. Currently, this is still the goal, but there is a waitlist given the pandemic. I cannot say for sure what the actual timeframe may be at this point. Primer is 10 sessions and 11 for sex offenders. Given the information provided, it is likely this offender will be placed in the Sex Offender stream. This program would take approximately 4-6 weeks to complete.

After completing the Primer program, the offender would be placed on the waitlist for his core program. If it was Moderate intensity it would be 50-60 sessions (4 to 6 months) and high intensity would be 90-100 sessions (6 to 9 months). The time to completion is approximate and could be longer. Core programming is typically completed at their home institution after they leave the Joyceville assessment unit. For these case management timeframes, you would have to consult with one of my colleagues who would be better informed of current practices.

It is possible all institutional programming could be completed within 2 years without any obstacles. However, I’m not sure that would happen in the current climate and that is why I recommend 3 years. This timeframe leaves room to allow for transfers, waitlists, and completions. It also allows for some room to complete Institutional Maintenance programming if it is recommended by the facilitator based on risk and needs. Also, much of this process is dependant on the willingness of the offender to attend and participate. [emphasis added]

Law and analysis

Positions of counsel

[63] The Crown and defence both agree that Mr. Obermeier meets the dangerous offender criteria and that he should receive a fixed sentence followed by a 10-year long-term supervision order. The Crown submits that Mr. Obermeier, irrespective of whether he is given enhanced credit for pre-sentence custody, should receive a sentence of 5 years. An additional 5 years would be a fit sentence given his criminal record and would allow Mr. Obermeier to receive programming while incarcerated which would reduce his risk to the public and allow him to be controlled on a long-term supervision order. The defence submits that when you factor in 1.5 credit for pre-sentence custody and Downes credit for his onerous bail conditions, Mr. Obermeier has, in fact, already served the equivalent of a three year sentence. Such a sentence is more than sufficient given the circumstances of the offence. Furthermore, the defence submits that Mr. Obermeier is doing well out of custody. Re-incarcerating Mr. Obermeier would destroy the progress that he has made which will not protect the public. The Crown’s request is essentially a request for a seven or eight year sentence, which is outside the range, given the circumstances.

1) Is Mr. Obermeier a dangerous offender?

[64] The Crown submits that Mr. Obermeier should be designated as a dangerous offender. The defence agrees. The defence’s concession is well made. There could be no doubt that Mr. Obermeier meets the dangerous offender criteria. Given the concession, my reasons in this area will be relatively brief.

[65] Section 753(1) of the Criminal Code describes four different modes by which the offender may be declared a dangerous offender. These routes to a dangerous offender designation are not mutually exclusive and the Crown may have resort to one or more of them, providing that the Crown has proven the criteria beyond a reasonable doubt.

[66] Mr. Obermeier has been convicted of sexual assault. Sexual assault is a listed serious personal injury offence per s. 752(b) of the Criminal Code. It also meets the description of a serious personal offence as set out in s. 752(a) of the Criminal Code.

[67] Mr. Obermeier has now committed three sexual assaults. Typically, in such circumstances, section 753(b), which sets out the dangerous sexual offender criteria, would be the focus of such a hearing. However, in this case, it is not. While clearly his sexual offending is a concern, the psychiatric assessment indicates that Mr. Obermeier’s sexual offending is connected not to a sexual paraphillia but to his anti-social personality disorder. As noted by Dr. Woodside, in this regard:

Overall, in my opinion, while it is possible that this individual suffers from a non-consenting, coercive sexual preference involving a preference for forced sexual interactions, in my opinion, his sexual offending is more likely related to, and a function of, his antisociality and willingness to ignore the impact of his actions on others. Mr. Obermeier himself has attributed some of his sexual offending behaviour to feelings of anger and a desire to seek revenge/hurt the other person but it is noteworthy that this has taken the form of sexual activity.

[68] There have also been lengthy gaps between his sexual offences. The first offence was committed in 1991, the second in 2003 and the third and current one in 2018. I do appreciate that some of the gap, especially between his second and third sexual offence, can be explained by Mr. Obermeier’s time spent in prison. I agree with Dr. Woodside’s conclusion that “It is unclear to []whether this level of risk would be seen as meeting this criterion for Dangerous Offender status.”

[69] In my view, the applicable section is s. 753(1)(a)(ii). Section 753(1)(a)(ii) states that a person can be declared a dangerous offender if the Crown proves beyond a reasonable doubt that:

a) The offender has been convicted of a serious personal injury offence as defined in s. 752(a) of the Code;

b) The offender is a threat to the life, safety, physical or mental well-being of other persons;

c) This threat is based on evidence:

ii. That the offender has engaged in 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.; and

iii. The offender’s conduct is intractable.

[70] Under this subsection, the offender must have engaged in a pattern of persistent aggressive behaviour. The section purposely includes the word “persistent” so as to only capture the chronically aggressive offenders: R. v. Fulton, 2012 ONCA 781, at paras. 11-14. In R. v. Yanoshewski (1996), 104 C.C.C. (3d) 512 the Saskatchewan Court of Appeal defined persistent as the following:

[T]he Concise Oxford Dictionary defines the word “persistent” as meaning “enduring” or “constantly repeated”. The judge made no error in finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed the offences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences were being committed.

Also see: R v Williams, 2020 ONSC 5516, [2020] OJ No 4030, R v Wong, [2016] OJ No 5973, 2016 ONSC 6362, at para. 217 R. v. Naess, [2005] O.J. No. 936 Hill J.

[71] The section also requires the offender to have shown "a substantial degree of indifference regarding the reasonably foreseeable consequences". This requires that the offender had a conscious but uncaring awareness of causing harm to others through this patterned conduct: R. v. George, [1998] B.C.J. No. 1505 (C.A.), at para. 24; R v Mohamed, [2022] OJ No 319, 2022 ONSC 186, at para. 217

[72] The Supreme Court of Canada stated in R. v. Boutilier, 2017 SCC 64, that prior to designating a person as a dangerous offender the sentencing judge must consider the person’s future treatment prospects and whether the conduct is intractable. The court stated at paras. 27 and 46:

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.

In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct.

[73] I am satisfied beyond a reasonable doubt that Mr. Obermeier is a threat to the life, safety, physical or mental well-being of other persons and has engaged in a pattern of persistent aggressive behaviour of which the offence for which he has been convicted forms a part and has shown a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour, and that his conduct is intractable. I say this for the following reasons:

1. Mr. Obermeier has a lengthy criminal record for violence. He has now committed 10 violent offences, including three acts of sexual assault. He has stabbed two people, one in the neck and the other in the chest, resulting in that person’s death. He also started his string of violent offences by committing an armed robbery where he tied up the victim;

2. Mr. Obermeier’s offences have occurred more frequently as he has aged. While there was a lengthy gap between his first two sexual assaults, he committed his stabbings while he was on parole for his second sexual assault. His 2016 convictions for assaulting a police office and uttering death threats (x2) took place within days of being released from prison for his manslaughter offence. Finally, the predicate offence took place while he was on probation for the 2016 convictions. While Mr. Obermeier has committed a variety of violent offences and committing them in different circumstances, he has engaged in a pattern of persistently aggressive behaviour;

3. Mr. Obermeier has repeatedly shown a conscious uncaring to the harm that he caused. As perfectly captured by Dr. Woodside in his report:

Mr. Obermeier has demonstrated a lack of empathy for his victims and a lack of responsibility and remorse for his actions. His offending behaviour speaks eloquently to his indifference to the harm he may cause to his victims and lack of concern for the impact of his actions on them. His continued offending over a lengthy period of time also speaks to indifference to the pain and suffering of his victims and a focus on his own selfish, sexual needs.

From a psychiatric perspective, this is consistent with his showing a significant degree of indifference to the potential effects of his behaviour on his victims. I believe his capacity to empathize with others, in particular his victims, and to experience genuine remorse for his transgressions, is very limited.

4. The predicate offence certainly is another example of aggressive behaviour by Mr. Obermeier and again shows a conscious uncaring by him of the harm that he was causing. The victim repeatedly told him that she did not want to engage in sexual activity, but he did not care, he assaulted her nevertheless; and

5. Mr. Obermeier’s first criminal offence, an armed robbery where he tied up the victim before robbing his store, was committed in 1980. The predicate offence was committed 38 years later in 2018. He has committed, as mentioned, numerous violent offences in between. He has been diagnosed with an anti-social personality disorder, of which the essential feature is a pervasive pattern of disregard for, and violation of the rights of others. His conduct is clearly intractable.

2) What sentence should Mr. Obermeier receive?

[74] Sections 753(4) and (4.1) of the Criminal Code govern the sentencing of dangerous offenders. The sentencing options are as follows:

a) an indeterminate sentence of imprisonment in a penitentiary;

b) a composite sentence consisting of a term of imprisonment of at least two years, followed by an LTSO for not more than ten years; or

c) a determinate sentence for the predicate serious personal injury offence(s).

[75] Section 4.1 of the Criminal Code states:

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.

[76] A review of the Supreme Court of Canada’s decision in R. v. Boutilier and the Court of Appeal’s decision in R. v. Straub, 2022 ONCA 47 reveals that in sentencing a person who has been designated a dangerous offender and in deciding amongst the different sentencing options, the following principles are applicable:

1. A sentencing judge must consider all the sentencing objectives and principles set out in ss. 718-718.2 of the Criminal Code;

2. However, sentencing an offender that has been designated a dangerous offender is not the same as a conventional sentencing. In a dangerous offender proceeding, the sentencing judge must assign paramount consideration to the protection of the public, as stated by Watt J.A. in R. v. Straub, at para. 59:

Parliament has decided that protection of the public is an enhanced sentencing objective for those who have been designated as dangerous offenders: Boutilier, at paras. 55-56; R. v. Pelly, 2021 SKCA 50, 403 C.C.C. (3d) 127, at para. 28.”

3. In determining the sentence, the judge must conduct a thorough inquiry into the prospect that the offender can be controlled and managed in the community;

4. The sentencing judge must impose the least intrusive sentence required to reduce the public threat posed by the offender to the level statutorily required. An indeterminate sentence is but one of the sentencing options available;

5. An indeterminate sentence must be imposed unless there is a reasonable expectation that a lesser sentence will adequately protect the public against the dangerous offender's violent recidivism. As stated by Watt J.A. in R. v. Straub, at para. 62:

The standard to be applied to the evidence adduced at the hearing is whether there is a reasonable expectation that a lesser measure will adequately protect the public against the offender's violent recidivism. The standard is reasonable expectation, not reasonable possibility. The term "reasonable expectation" suggests a "likelihood", "a belief that something would happen", or "a confident belief, for good and sufficient reasons": The standard "reasonable expectation" is more stringent than "reasonable possibility": R. v. Groves, 2020 ONCA 86, at para. 15. [citations omitted]

6. And, treatability must be considered. However, the evidence that the offender can be treated must be more than speculation or hope. There must be evidence that the offender can be treated within a fixed period of time.

[77] The Crown and the defence jointly submit that a fixed sentence and a 10-year long-term supervision order is appropriate as there is a reasonable expectation that such measure will adequately protect the public. I agree, having regard to the following factors:

1. While the offender has re-offended in the community while on parole and probation, he has now been in the community for almost two years, awaiting trial and sentence, without incident;

2. He does have some support in the community;

3. Earlier in his criminal offence cycle, the offender had gone lengthy periods in the community without committing an offence;

4. The offender has shown a willingness in the past to engage in treatment. He completed numerous programs while in the institution and has agreed, as part of this supervision order, to take sex drive reducing medication; and

5. Counsel’s position is supported by Dr. Woodside’s report, where, after assessing the various factors, Dr. Woodside concluded that:

In summary, I believe there that there may be reason for limited optimism that his risk could be managed in the community pursuant to some form of long-term supervision, taking into account his estimated risk of recidivism compared with other offenders, his various diagnoses, his current age, his reported willingness to take any and all forms of treatment (including sex-drive reducing medication) and his being subject to strict terms of release

Applicable legal principles in determining the length of the sentence

[78] As stated, in sentencing a dangerous offender, a judge must still consider the sentencing principles set out in ss. 718-718.2 of the Criminal Code.

[79] Section 718 of the Criminal Code describes the purpose of sentencing:

The 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.

[80] Further, s. 718.1 of the Criminal Code provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[81] Mr. Obermeier assaulted and sexually assaulted the complainant with whom he had an intimate relationship, at that time. Section 718.2(a)(ii) states that a court that imposes a sentence shall consider as an aggravating factor: (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family.

[82] In sexual offences, the moral blameworthiness of the offender is high. As stated by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, at para. 89:

All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48).

[83] Sentencing in sexual assault cases must denounce this conduct and deter likeminded individuals from committing such offences. “Sexual assault is still among the most highly gendered and underreported crimes.”: R. v. Goldfinch, 2019 SCC 38, at para. 37. Sentencing decisions must reflect the harm that sexual offences have done to the complainant and our community at large.

[84] Sentencing an offender who has been designated a dangerous offender for an offence is not the same as sentencing a person who has committed the same offence without the designation. In other words, in crafting a sentence, I am not restricted to imposing a sentence that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. As stated by Watt J.A. in R. v. Spilman, 2018 ONCA 551, at para. 32:

As I will explain, I am satisfied that in determining the length of the fixed-term custodial component of a composite sentence under s. 753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV, and other applicable sentencing principles under ss. 718-718.2. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context.

[85] As mentioned, in sentencing a dangerous offender, an enhanced objective is the protection of the public. This objective distinguishes dangerous offenders from other offenders and warrants sentencing dispositions that are beyond those ordinarily available for non dangerous offenders. As stated by Watt J.A. in R. v. Spilman, at para. 42:

Rather than comparing the sentence imposed to the "appropriate" sentence outside the dangerous offender context, the relevant question should be whether the hearing judge has reasonably "assess[ed] the relative importance of the sentencing objectives in [a] particular case": Boutilier, at para. 55.

[86] A sentencing judge is entitled to take into account access to rehabilitative programming in a penitentiary in deciding upon the length of the custodial component of a composite sentence under s. 753(4)(b) within certain parameters. As stated by Watt J. In R. v. Spilman, at para. 54:

Third, the length of sentence imposed must be responsive to evidence adduced at the hearing. The evidence about treatment programs should be specific, preferably indicating an approximate length or range of time within which the offender may be expected to complete the programming said to be necessary to protect the public. There must be a clear nexus between that programming and future public safety, sufficient to support a "reasonable expectation" that the overall sentence will "adequately protect the public against the commission by the offender of murder or a serious personal injury offence": s. 753(4.1). And the evidence must account for the offender's "amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of reoffending": R. v. Little, 2007 ONCA 548, 225 C.C.C. (3d) 20, at para. 40.

[87] Finally, in crafting the sentence, the court cannot impose a sentence that exceeds the statutory maximum, and cannot impose a lengthy fixed-term sentence that is entirely disconnected from the circumstances of the offence giving rise to the sentencing proceedings.

Aggravating and mitigating factors

[88] The following are the aggravating factors:

a) Mr. Obermeier is a dangerous offender. He is a threat to the life, safety, physical or mental well-being of other persons;

b) Mr. Obermeier has a terrible criminal record. He has already received three penitentiary sentences, including the equivalent of a ten-year sentence. Despite these sentences, he has continued to offend violently;

c) The predicate offence was Mr. Obermeier’s third sexual offence;

d) He committed the predicate offence against an intimate partner;

e) The predicate offence was committed while Mr. Obermeier was on probation;

f) The circumstances surrounding the predicate offence were serious. Mr Obermeier first hit the victim, them tried to force oral sex and then continued to digitally penetrate her as she was throwing up; and

g) The predicate offence has greatly impacted the victim.

[89] There are some mitigating factors:

1. Mr. Obermeier had a difficult upbringing. His father committed suicide when he was a young man. His mother was abusive to Mr. Obermeier and seemed to lack the appropriate parenting skills needed. Mr. Obermeier himself was the victim of sexual abuse;

2. Mr. Obermeier has, in the past, been suicidal;

3. Mr. Obermeier has been diagnosed with PTSD;

4. He has spent time on restrictive bail conditions pending sentence; and

5. Mr. Obermeier has done well while on release pending trial and sentencing. He has made connections in the community and has support in the community. His brother is also supportive and the two of them have a plan to make cabinets on a parcel of land that they bought.

[90] The Crown and defence have both submitted a number of cases in support of their requested sentence. I have reviewed them and found those cases to be, through no fault of counsel, only somewhat helpful. The myriad of factors that go into determining an appropriate sentence make each case unique and distinguishable from each other. But this is especially so in this case, given the dangerous offender proceedings and given Mr. Obermeier’s background and criminal record.

[91] A significant sentence is needed to denounce Mr. Obermeier’s behaviour, to deter like minded individuals from committing similar offences. Mr. Obermeier sexually assaulted his intimate partner. I found that Mr. Obermeier’s attack on the victim occurred because he was concerned that their relationship was at risk of ending. Relationships end, they change, they transform. A person should be free to end or change a relationship without fear of being attacked, let alone sexually attacked.

[92] Trial judges must impose sentences that reflect the harm caused by sexual assault. In R. v. Friesen, the Supreme Court of Canada provided guidance on sentencing offenders who have committed sexual offences against children. The court stated that sentences for those who sexually abuse children should increase. However, the court was quick to point out that the reasons should not be taken as a license to decrease sentences for the sexual abuse of adults or as a bar from increasing such sentences:

We would emphasize that nothing in these reasons should be taken either as a direction to decrease sentences for sexual offences against adult victims or as a bar against increasing sentences for sexual offences against adult victims. As this Court recently held, our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened (Goldfinch, at para. 37). In jurisdictions that have erroneously equated sexual violence against children with sexual violence against adults, courts should correct this error by increasing sentences for sexual offences against children -- not by decreasing sentences for sexual offences against adults.

[93] The sentence must deter others like Mr. Obermeier who are repeat sexual offenders and who have continued to re-offend despite past sanctions. Furthermore, the sentence must also recognize the harm caused to the victim. JR’s victim impact statement and her mother’s victim impact stated demonstrate how Mr. Obermeier’s attack has harmed JR and continues to harm her. As stated by the Supreme Court of Canada in R. v. Goldfinch, at para. 37:

…As time passes, our understanding of the profound impact sexual violence can have on a victim's physical and mental health only deepens. Parliament enacted s. 276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault. Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors' medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. The harm caused by sexual assault, and society's biased reactions to that harm, are not relics of a bygone Victorian era.

[94] But most critically, in this case a significant sentence must be imposed on Mr. Obermeier to specifically deter him from committing further crimes of violence and crimes of sexual violence. Counsel for Mr. Obermeier submits that any further time in jail would undo the progress Mr. Obermeier has made, set back any rehabilitation and provide less protection to the public. I disagree. In order for the long-term supervision order to effectively manage and control Mr. Obermeier’s risk to an acceptable level, he must have the proper base. That base will be provided in the institution as he takes the myriad of programming recommended by Dr. Woodside:

Mr. Obermeier should access and complete a wide variety of programs during a period of incarceration, including but not limited to, anger management, domestic violence prevention/violent offending prevention, cognitive skills, and programs to deal with antisocial attitudes and sexual offending. He may also benefit from accessing vocational/recreational programs to assist him with any eventual transition to the community.

[95] In addition, time is needed by the correctional authorities to develop and implement a plan to control Mr. Obermeier while he is in the community. This is not some bureaucratic nicety, as counsel for Mr. Obermeier seemed to suggest, but rather a necessity to properly reduce the offender’s risk to an acceptable level. Having Mr. Obermeier immediately start in the community on a long-term supervision order would doom him to failure.

[96] I agree with his counsel that Mr. Obermeier has made progress while on his most recent release, but it is evident that further work is needed. Mr. Obermeier has obtained some short-term success. But the goal is for Mr. Obermeier to obtain long-term success. After all, Mr. Obermeier has obtained short-term success in the past to only re-offend violently. For example, he was doing well on parole until he was arrested for killing his manslaughter victim. He seemed to be doing well on probation until committing the predicate offences. A key difficulty and stumbling block for Mr. Obermeier is his lack of insight. It has prevented him from fully absorbing the myriad of courses that he took over the years while in jail. I agree with his counsel that it is something that he spoke at length about his past offences to Dr. Woodside. And yes, he was quite open about his thoughts, but those thoughts reveal a man, who does not fully accept responsibility for his past offences. He blamed past victims and the surrounding circumstances for his crimes of violence. His version of some of his crimes is at odds with the facts even though he had accepted those facts when he pled guilty at trial.

[97] Even though Mr. Obermeier has been previously jailed twice for sexual offences, he still committed the predicate offence. Even though he has taken a significant amount of programming during his years on incarceration, he has not fully absorbed it. In this case, JR could not have been more clear to Mr. Obermeier that she did not want to engage in sexual activity, yet he persisted and he physically assaulted and violated her sexual integrity. He did so despite being bound by a probation order.

[98] In my view, a sentence in the range of five years is appropriate. Such a sentence will leave a remnant to allow for Mr. Obermeier’s treatment in the penitentiary. Such a sentence would, in my view, be appropriate for Mr. Obermeier, even without the dangerous offender designation given his criminal record, his past conviction for manslaughter, his two prior sexual assault convictions, the fact that the offences were committed while he was bound by a probation order and the impact the current offences had on the victim.

[99] Counsel for Mr. Obermeier submits that the time Mr. Obermeier spent on restrictive bail conditions is a mitigating factor that should lessen his sentence. As stated by the Court of Appeal in R. v. Ruddy, 2021 ONCA 490, at para. 11:

In R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), at para. 33, this court held that it is an "error in principle" for a judge to fail to take into account as a mitigating circumstance in sentencing time spent on stringent bail conditions, especially house arrest. See also: R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 67, per Sharpe J.A. (concurring). However, there is no prescribed formula for taking this mitigating factor into account; it is within the discretion of the sentencing judge: R. v. Place, 2020 ONCA 546, at para. 20.

[100] Mr. Obermeier has been subject to a curfew for approximately two years. For approximately the first seven months he could not leave the house without his surety. The conditions were eased and for the last 16 months he has been able to leave the house three days during the week, without his surety. There has been a punitive aspect to the conditions, and I am prepared to reduce his sentence by two months to give effect to this mitigating factor, for a total sentence of 58 months.

Pre-sentences credit

[101] The Crown submits that Mr. Obermeier should not receive any enhanced credit for his time spent in custody as it is extremely unlikely that he will receive parole.

[102] In R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, the court, stated that enhanced credit is justified primarily because there is no opportunity to gain credits towards early release or parole while in presentence custody. Sentencing judges have denied such enhanced credit when there was no realistic chance that an offender would be released before the end of his sentence. In R. v. M.O., 2016 ONCA 236, Doherty J.A. stated, at paras. 30 and 32:

In R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, this court considered the Crown's submission that presentence credit should be given on a 1:1 basis because the accused's conduct made it unlikely that he would receive parole or any other form of early release. The court stressed that the focus must be on the language of ss. 129 and 130 of the Corrections and Conditional Release Act which sets out the relatively narrow circumstances in which an offender can be required to serve his or her entire sentence in custody. As Cronk J.A. observed, it is not enough to show that the appellant has been far from a model prisoner while incarcerated. Section 130(3)(a) requires a determination of whether it is likely that the offender, if released before the expiry of the warrant, will commit an offence involving serious harm to another before the expiry of the warrant.

I would note that the 10-year supervision order imposed by the trial judge has no impact on the determination of whether the appellant should be given enhanced credit for presentence custody. A long-term supervision order does not start until the offender’s sentence is completed. Even if the offender is released from custody, his sentence continues until warrant expiry. On that date, the long-term supervision order takes effect: Corrections and Conditional Release Act, s. 128(1); R. v. Burton, 2013 ONSC 2626, at para. 14.

[103] In R. v. M.O. the Court denied enhanced credit finding that there was no realistic chance he would obtain parole given his antecedents.

[104] There is much merit to the Crown’s submissions. Mr. Obermeier has continued to re-offend violently despite serving all of his sentence for manslaughter, despite being placed on a s. 810.2 order and despite being placed on probation. However, he has now been in the community for almost two years on restrictive conditions and has not re-offended. I cannot say that there is no realistic chance that he would obtain early release. Much will depend on how well he does in the institution and how much he absorbs from the programming that he obtains. It will be a decision for the parole authorities, and I cannot presume at this stage the result of that decision. I will grant Mr. Obermeier 1.5 credit for the 646 days spent in pre-sentence custody for a total of 969 days or 2 years and 8 months for a remnant of 26 months.

[105] The material filed by the Crown indicates that the timeframe to complete programming at the penitentiary can be two years. I appreciate that the same email stated that given the covid pandemic three years may be more realistic given the potential delays. I understand the difficulties caused by the pandemic. At the same time, it has now been two years, institutions around the world have had to learn how to adapt and adjust. Just as I do not think it would be appropriate to reduce Mr. Obermeier’s sentence to account for the fact that he will be serving his sentence at what seems to be the tail end of the pandemic, I do not think it would be appropriate to increase his sentence to provide the correctional authorities a buffer of time.

Conclusion

[106] Mr. Obermeier you are sentenced as follows:

a) Count 1, assault: 6 months;

b) Count 2, sexual assault: you are designated a dangerous offender, with a fixed sentence of 58 months less credit for time of served of 32 months, for a remnant of 26 months, concurrent to count 1 and placed on a 10-year long-term supervision order. In addition, you will be subject to a:

• DNA order;
• s.109 weapons prohibition order for life;
• SOIRA order for life; and
• s. 743.21 non communication order with respect to JR

c) On the second indictment, breach of probation: 6 months concurrent

[107] I decline to make any recommendations with respect to the terms of the long-term supervision order.

Justice Howard Leibovich RELEASED: March 25, 2022