ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.H.
Defendant
Ms. L Saunders, for the Crown
Mr. R. Yasskin, for the Defendant
HEARD: December 17, 2020, November 15, 2021, and December 16, 2021
RESTRICTION ON PUBLICATION
An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complainant or a witness in this proceeding
REASONS FOR JUDGMENT
1J.H. is a repeat sexual offender, with a diagnosed paraphilic disorder. His victims of choice are females under the age of 18 years.
2Most recently, Mr. J.H. pleaded guilty before me to sexual interference (count 2), making an arrangement by telecommunication to commit one of the specified sexual offences against a person under the age of 16 years (count 4), fail to comply with a Criminal Code s. 161 prohibition order (count 1), and fail to comply with a term of probation that he keep the peace and be of good behaviour (count 5). I found him guilty of all four offences.
3Crown counsel seeks to have Mr. J.H. designated a dangerous offender.
4Mr. J.H. agrees through counsel that I should find him to be a dangerous offender.
5Crown and defence counsel agree that I should impose a determinate sentence of more than 2 years in jail, followed by a long-term supervision order, but differ as to the length of that determinate sentence.
The Predicate Offences
6The predicate offences are those of sexual interference and make arrangement to commit a sexual offence against a child.
7The following facts which constitute the essential elements of those offences and the circumstances surrounding their commission were set out in writing and explicitly admitted by Mr. J.H. on his guilty pleas.
8In July 2018 H.H. sold a barbeque on Kijiji to Mr. J.H.. He learned that she was recently widowed and had three young sons and a young daughter. After purchasing the barbeque from her, Mr. J.H. contacted a mutual friend and a further introduction was arranged.
9Ms. H.H. characterized their relationship as friends with benefits. Mr. J.H. provided her with alcohol and sometimes with money, and showered her with compliments. They had sex when they were able to be alone. Ms. H.H. was struggling with alcohol addiction and financial challenges. Mr. J.H. filled her need to feel desirable and loved.
10The two communicated primarily via the landline at Ms. H.H.’s Barrie home, where she lived with her children and her adult cousin C.E.. Ms. H.H. did not have a cell phone of her own. On one occasion she borrowed her cousin’s cell phone and used it to communicate with Mr. J.H. via instant messaging on FaceBook Messenger. Ms. H.H. did not sign out of FaceBook Messenger before she returned the phone to her cousin. As a result, her profile was left open and accessible for viewing.
11In late August 2018, Ms. H.H. and her children moved into a shelter in Bradford. Ms. H.H. was able to communicate with Mr. J.H. only by using the computer at the shelter to access FaceBook Messenger, or by the shelter’s landline.
12Mr. J.H. attended at the shelter to visit Ms. H.H. on a number of occasions. He brought her alcohol and cigarettes a couple of times. On another occasion he asked and was permitted to take her daughter D.T., who was 8 years old, out for a ride in his car.
13On September 6, 2018, Ms. C.E. received a notification on her phone that she had a new Facebook Messenger message. When she opened the message, she found it was from “K.H.” (a name by which J.H. was known). She knew K.H. to be the name of the person with whom Ms. H.H. was involved. As she read the message, she realized it had been sent by Mr. J.H. to her cousin. Because Ms. H.H. previously had neglected to log out of Messenger on the phone, Ms. C.E. was able to see the entire exchange between her cousin and Mr. J.H..
14A review of the messages caused Ms. C.E. to fear immediately for the safety of D.T.. It seemed that Mr. J.H. was asking Ms. H.H. to make D.T. available so that he could sexually abuse her, and that Ms. H.H. was going along with it.
15Ms. C.E. then answered the landline phone and found it was Mr. J.H. calling looking for Ms. H.H.. Ms. C.E. asked Mr. J.H. to come over so that they could talk. When he agreed, she hung up and called police.
16When the police arrived, Ms. C.E. showed them a copy of the messages on her phone. Mr. J.H., who was in a car outside the house, was arrested and taken into custody. Ms. C.E. provided police with a series of screen captures reflecting the conversation she read on her phone within Ms. H.H.’s FaceBook Messenger account.
17Mr. J.H. was searched incident to arrest and his cell phone was seized. A warrant was obtained to examine it for evidence of FaceBook Messenger communications between him and Ms. H.H.. A series of messages that had been exchanged from September 3rd to September 6th, 2018, was subsequently retrieved from both Ms. C.E.’s phone and Mr. J.H.’s phone. A sampling of the messages sent by Mr. J.H. to Ms. H.H. included the following:
You gonna let me touch her? Do you think she would say something? I would never force it.
You’re getting fucking cigarettes you’re getting liquor and I don’t get to lick her.
Babe I told you bring your daughter with you tonight let’s hang out for two or three hours tonight let’s fool around let’s mess around me and you with her there then Saturday night let’s hit a hotel and just fucking be crazy I want you to have some drinks I wants your daughter to have a nice shower nice bath whatever you to have a nice shower and a bath and me.
Babe don’t worry honestly if you can’t get away tonight let me come there and take her out again for two or three hours this time.
You as her mother she loves you more than anything if you tell her to keep a fucking secret and be quiet she will trust me.
I didn’t say I was banging her.
I bet you if you were decide or Babe don’t say nothing but hey it’s me you and K.H. were to go away tonight do you want to come with us she say yes say do you want to be in the same bed as us I guarantee on my life she’d say yes cause I already asked her that.
18Following his arrival at the police station, Mr. J.H. was interviewed by an officer. Mr. J.H. acknowledged that he was the party “speaking” with Ms. H.H. in the FaceBook Messenger exchange, but he denied there was ever any intention to involve D.T. in any sexual activities. He said that while most of the text messages attributed to him were accurate, those containing the word “daughter” were wrong. He offered no explanation as to how the word “daughter” would have appeared in the messages.
19It was learned that Mr. J.H. was the subject of a s. 161 prohibition order. It flowed from convictions in 2010 for sexual assault and sexual interference. In addition to a sentence of five years in the penitentiary, a s. 161 order was imposed for a period of 15 years prohibiting Mr. J.H. from “attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre”.
20Police also learned that Mr. J.H. was the subject of a probation order imposed in 2015 following convictions for sexual exploitation and failing to comply with probation. In addition to a custodial sentence of 280 days after pre-sentence custody of 170 days, a three year probation order was made which contained the statutory term that he keep the peace and be of good behavior.
21The car in which Mr. J.H. was arrested was searched incident to arrest. Located inside the vehicle were children’s belongings including a pacifier, assorted children’s clothing, and pool toys for children. The vehicle was registered to a K.D., who Mr. J.H. identified as his girlfriend.
22Ms. K.D. was interviewed by police. She advised that she was pregnant with Mr. J.H.’s child. She was a widow with two young children when she met Mr. J.H. on FaceBook. In addition, she was the Godmother to A.P., who was her late husband’s child from a previous relationship. Ms. K.D. maintained a relationship with A.P. after the death of her husband and would spend time with her on weekends when she was able to do so. A.P. met Mr. J.H. through Ms. K.D. in the summer of 2018. A.P. was 9 years old.
23According to Ms. K.D., the accused told her about his two sets of convictions for sexual offences involving children. He also told her that he was the subject of a s. 161 prohibition and that he was not allowed to be alone with children. Despite this information, on a couple of occasions Ms. K.D. permitted Mr. J.H. to be alone with A.P..
24A.P. told police that it made her uncomfortable when Mr. J.H. would often call her “pretty”. On occasions in 2018 when she was out with Mr. J.H., he touched her leg as he was driving. On one specific occasion they were in a parking lot when he touched her leg with his hand for about 10 seconds, making her uncomfortable. In order to get away, A.P. went to jump over the seat to go into the back of the vehicle. As she did so Mr. J.H. slapped her on the butt, so she returned to her seat in the front of the car. Once they were driving again, Mr. J.H. began touching her leg, making her feel uncomfortable. A.P. also described an occasion when she was at Mr. J.H.’s workplace. She was laying down in the back seat of a pick-up truck because she was tired when he jumped on top of her so that his chest and legs were on her. His hands were on either side of her as she lay on her back on the back bench seat. She shoved him and yelled at him to get off of her, and he did. She felt very uncomfortable on that occasion but did not tell anyone.
25Each discrete offence against A.P. was a breach of the “keep the peace and be of good behaviour” term of Mr. J.H.’s probation order.
26Additionally, A.P. and other witnesses described a birthday party for Ms. K.D.’s daughter that was held at an indoor playground in July of 2018. A number of family members attended, including children. A photo taken at that event depicts Mr. J.H. with the children, even though the s. 161 order was still in effect.
27On other occasions in 2018, Mr. J.H. went with Ms. K.D. and her children to the Science Centre, Ripley’s Aquarium, and Santa’s Village. All of these attendances contravened the s. 161 prohibition order.
28Ms. A.P. submitted a Victim Impact Statement, in which she reports that she struggles with what Mr. J.H. did to her almost every day. Her family fell apart after he was arrested, as her stepmother believed him and not her. She is scared that she will not know when or with whom the sexual abuse will happen again. She lost a lot of her trust. She sees a therapist and has extra support at school.
The Dangerous Offender Designation
29The Criminal Code sets out the bases upon which an individual “shall” be found a dangerous offender. Two of those bases are relevant in this case:
Under s. 753(1)(a)(i), where the offender is convicted of a “serious personal injury offence” as that expression is defined in paragraph (a) of s. 752 and he constitutes 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 by him, 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 behaviour;
Under s. 753(1)(a)(ii), where the offender is convicted of a “serious personal injury offence” as that expression is defined in paragraph (a) of s. 752 and he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a pattern of persistent aggressive behaviour by him, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour.
30Crown and defence counsel agree that sexual interference, and make arrangement to commit a sexual offence against a child, are each a “serious personal injury offence” as defined in paragraph (a) of s. 752.
31Where a dangerous offender designation is made, by operation of ss. 753(4) and (4.1) the court must impose an indeterminate sentence unless it is satisfied by the evidence that there is a reasonable expectation that a determinate sentence of at least two years in jail and a long-term supervision order of up to 10 years, or a determinate sentence alone, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
Mr. J.H.’s Criminal Record
32Mr. J.H. has an adult criminal record dating back to 1986. Prior to 2010, his offences were mainly property crimes.
33In March 2010 he was convicted after a judge alone trial of sexual assault, three counts of sexual interference, and uttering threats, which offences he committed in the period January 1999 to July 2007.
34The facts found by the trial judge were that Mr. J.H. engaged in an escalating patten of sexual intrusion on the victim that culminated in regular sexual intercourse for about a year and a half. The victim was about 7 years old when Mr. J.H. began touching her inappropriately, including touching her vagina with his hand, and licking her vaginal area. The assaults progressed to unprotected sexual intercourse with ejaculation when she was 12 to 13 years old. He threatened to kill her if she told anyone. The victim’s mother was married to Mr. J.H..
35Mr. J.H. received a total sentence of five years in jail. A s. 161 prohibition order was made for 15 years. The trial judge indicated that Mr. J.H. had “demonstrated sexual appetite for young children”. She wanted the prohibition in place for 10 years while he was in the community after the jail term ended.
36In March 2015 Mr. J.H. was convicted of breaching the s. 161 prohibition order. The breach had to do with his attendance at a school to pick up a 17 year old girl, M.M.. He was still on Mandatory Supervision for the 2010 convictions on the offence date. He was sentenced to 90 days in jail intermittent and probation for 12 months.
37In September 2015 Mr. J.H. pleaded guilty to and was convicted of sexual exploitation of Ms. M.M. between February 20 and April 20, 2015, and failing to comply with the probation order between March 30 and April 20, 2015.
38The facts admitted by Mr. J.H. on the pleas were that he met Ms. M.M. at their workplace, in September 2014. He was then 47 years old and she was 17 years old. She was romantically inexperienced. She suffered from anxiety and anorexia and was seeing a therapist. Mr. J.H. knew her age, and learned from her about her difficulties. He began to profess his love for her and sent her explicit sexual texts. He asked her to be his girlfriend, and she agreed. On February 20, 2015, he picked Ms. M.M. up at school and drove her to a park where they kissed. In the weeks that followed he picked her up at school frequently, and touched her sexually while they were in his car. This included putting his hands down her pants and touching her buttocks, laying on top of her and “dry humping” her, and having her sit on him topless while he kissed her breasts. The day he left court in March 2015 after being sentenced for breaching the s. 161 order, he contacted Ms. M.M. through his son. He continued to communicate with her through text messages and FaceTime. His communications were highly sexualized. He told
39that he would get a hotel room where they could go to “third base”.
40Mr. J.H. received a total sentence of 280 days in jail after credit of 170 days of pre-trial custody, and probation for three years. A s. 161 prohibition order was made for life.
41In May 2017 he was convicted of failing to comply with the probation order, specifically by communicating with Ms. M.M.. He was sentenced to 118 days in jail after credit of 32 days of pre-trial custody.
Mr. J.H.’s Background
42Mr. J.H. will be 55 years old this month. He was in institutional care most of the time from when he was a young age until he was 16 years old. He asserts that he was physically, sexually and emotionally abused while in care. He is a plaintiff in a civil lawsuit with respect to the alleged abuse.
43Mr. J.H. had significant behavioural problems while growing up, and was a juvenile offender. He left school with less than a grade 10 education. His work history was limited. He was a cocaine and a cannabis user. Once he reached his mid-20s, his work history began to improve. He has had periods of stable employment.
44Mr. J.H. has two sons by two different partners. One son is an adult and the other is a pre-schooler.
45Mr. J.H. reports that he is currently in a relationship with Ms. M.M..
46Mr. J.H. has been in custody since his arrest on September 6, 2018, a period of 41 months.
47While in pre-trial custody, he has been a unit server and also a cleaner, off and on. He completed his grade 12 education, and additional Educational Sessions.
48Institutional records indicate that Mr. J.H. was locked-down because of staffing shortages and medical isolation during the COVID-19 pandemic for about 160 days as of mid-December 2021. I accept that there have been additional days of such lockdowns since then, as I am aware there have been recent COVID-19 outbreaks at the detention centre.
49Mr. J.H. was seen at the detention centre by a psychiatrist, to whom he expressed that he wants to seek treatment “for why he is coming back to jail”.
50I was provided with letters of character reference indicating that Mr. J.H. has some supports in the community, although it is unclear to what extent the writers know the details of his current or past offences. A friend is prepared to employ him on his release from jail. Defence counsel advised that the employment would involve buying and selling cars online.
51In his remarks to me at the end of the hearing, Mr. J.H. asked that I impose a sentence of two years less a day and send him to St. Lawrence Valley Treatment Centre. He says that he understands the magnitude of his offending, and wants one on one counselling. He asked that I not make medication a condition of his sentence. He claims that Dr. Klassen said that medication would hurt him. I note that this claim is at odds with the recommendations set out in Dr. Klassen’s report, which specifically mention the benefit of treatment with sex-drive reducing medication.
The Assessment Conducted by Dr. Klassen
52Dr. Philip Klassen, a forensic psychiatrist, conducted a court-ordered assessment of Mr. J.H.. He concluded that Mr. J.H. suffers from other specified personality disorder with antisocial personality traits, which he identified as denial of paraphilic interests, dishonesty, and self-serving behaviour. Mr. J.H. also suffers from a paraphilic disorder, meaning a problematic/deviant sexual preference, specifically, in Mr. J.H.’s case, a preference for minors. While it is not clear if Mr. J.H.’s sexual preference is for prepubescents, pubescents, or both, Dr. Klassen favours the latter, which is known as pedohebephilia. He says that Mr. J.H. struggles to fully acknowledge this sexual preference.
53Using actuarial methods of risk assessment, Dr. Klassen concluded that Mr. J.H. falls in a moderately high risk category for sexual or violent recidivism. Dr. Klassen described this as suggesting substantial risk, although he noted that Mr. J.H.’s risk would be expected to decline with age, with 60 noted by one of the actuarial tools as the point at which there is a decline in sexual offending. Dr. Klassen identified the criminogenic, or dynamic, variables (which are those variables that are proximal antecedents to offending behaviour and which tend to be at least theoretically changeable) as Mr. J.H.’s underlying paraphilic disorder, his antisocial personality traits, and the opportunity/availability of vulnerable victims. These are the variables that may be targeted for treatment and/or supervision.
54Dr. Klassen identified three challenges in risk-managing Mr. J.H.. Correctional Service Canada files indicated that Mr. J.H. previously participated in sex offender treatment while serving a penitentiary sentence and while on day parole. However, Dr. Klassen pointed out that a proper relapse prevention plan depends on Mr. J.H. helping those who treat and risk-manage him to understand what his offence cycle is, what drives increased sexual fantasy, and the resultant offending behaviours. Mr. J.H. has made relatively limited disclosure of this information. Second, in Dr. Klassen’s opinion, Mr. J.H.’s sexual offending behaviour has been premeditated. Mr. J.H. retains both the willingness and capacity to exploit vulnerable persons. Lastly, he is willing to be less than truthful even while appearing sincere.
55Dr. Klassen made the following five recommendations for management of Mr. J.H.’s risk:
Mr. J.H. should receive further Sex Offender Treatment Programming focusing on his paraphilic disorder;
Mr. J.H. would “undoubtedly benefit” from treatment with sex-drive reducing pharmacotherapy. It could have an important role to play in management of his risk in the community. The only comment Dr. Klassen made about the impact of such medication other than on offending behaviour, is that it can also impede normative sexual relations;
When Mr. J.H. returns to the community he should be required to refrain from being in the unaccompanied presence of minors;
When he returns to the community he should be required to report actual or potential intimate relationships to those supervising him, and it should be ascertained to what extent he has access to a minor; and
When he returns to the community he should seek and maintain employment.
56Dr. Klassen believes that Correctional Service Canada, meaning the federal penitentiary system, offers the best available treatment for sexual and violent offenders.
The Positions of the Parties
57Crown and defence agree that I should designate Mr. J.H. a dangerous offender under both ss. 753(1)(a)(i) and (ii) for the offences of sexual interference and make arrangement to commit a sexual offence against a child. They also agree that a determinate sentence should be imposed, followed by a long-term supervision order. They differ as to the length of the determinate sentence and the extent of credit for pre-sentence custody.
(a) The Position of the Crown
58On behalf of the Crown, Ms. Saunders seeks a total determinate sentence of 10 years in jail, less pre-sentence custody credit, followed by a long-term supervision order for 10 years. She asks that three years in jail be imposed for the offence of sexual interference, and seven years in jail consecutive for the offence of make arrangement to commit a sexual offence against a child. In respect of both these offences she seeks a DNA order, a s. 109 order for life, a SOIRA order for life, and a s. 161 order, with some limited exceptions, for 10 years.
59She submits that the pre-sentence custody credit should be limited to one for one.
60The remaining two offences cannot be the subject of a dangerous offender designation. Ms. Saunders asks that I impose a sentence of one year in jail concurrent for the offence of fail to comply with a s. 161 order, and that I make another s. 161 order for 10 years. She seeks a sentence of one year in jail concurrent for the offence of fail to comply with probation.
61Ms. Saunders also asks that I make a s. 743.21 non-contact order in respect of H.H., D.T., and A.P..
62Ms. Saunders submits that a determinate penitentiary sentence followed by a long-term supervision order should be imposed, because there is evidence of treatability that is more than an expression of hope. Mr. J.H. has expressed a willingness to participate in counselling. He participated in treatment in the penitentiary in the past. He is in an ongoing relationship with Ms. M.M.. It is expected that his risk for recidivism will decline once he turns 60, which is five years from now.
63Ms. Saunders contends that a custodial sentence totalling 10 years is appropriate. Mr. J.H.’s moral blameworthiness for the predicate offences is extraordinarily high. Those offences were premeditated and involved the abuse of trust of vulnerable women who had young female children in their care. Mr. J.H. has a criminal record that is recent and related. Dr. Klassen indicated that Mr. J.H. needs to understand his sexual fantasies. Dr. Klassen believes that the sex offender treatment in the penitentiary system is the best available. Against that sentence, Mr. J.H. should get no credit for pre-sentence custody above one for one, because he is not likely to get early release or parole. Ms. Saunders submits that to reduce the sentence because of lockdowns due to staffing issues would result in the imposition of an inappropriate sentence. A 10 year long-term supervision order that includes the conditions recommended by Dr. Klassen is appropriate.
64With respect to the s. 161 order, Ms. Saunders asks that all of clauses (a) through (d) be included, with some limited exceptions to clause (d).
(b) The Position of the Defence
65On behalf of the defence, Mr. Yasskin agrees that a determinate sentence should be imposed, that it should be followed by a long-term supervision order for 10 years, and that the ancillary orders sought by the Crown should all be made. However, he takes issue with the quantum of the determinate sentence, the attribution of pre-sentence custody credit, and the terms of the s. 161 order.
66Mr. Yasskin submits that Mr. J.H. should be sentenced for the offence of make arrangement to commit a sexual offence against a child to five years in jail and for the offence of sexual interference to a consecutive term of two years in jail, for a total sentence of seven years. He disagrees that the normal range of sentence does not apply in this case. He emphasizes that Mr. J.H. pleaded guilty knowing the Crown was seeking a dangerous offender designation, showing his remorse and saving court time. Ultimately he consented to the designation. No-one had to testify. There is a prospect of rehabilitation. Mr. Yasskin also raised lockdown days due mainly to staffing shortages as a mitigating factor to be considered.
67Mr. Yasskin asks that Mr. J.H. be credited for pre-trial custody on the basis of one and a half to one, because of conditions in the detention centre including outbreaks of COVID-19, and because it is not clear that Mr. J.H. would be denied early release or parole.
68With respect to the s. 161 order, Mr. Yasskin submits that Mr. J.H. should be permitted to use a computer if supervised by an adult.
Analysis
69It is common ground between Crown and defence that Mr. J.H. should be designated a dangerous offender under ss. 753(1)(a)(i) and (ii).
70I am satisfied beyond a reasonable doubt that all the statutory criteria have been met for designation under both ss. 753(1)(a)(i) and (ii). As required by R. v. Boutilier, 2017 SCC 64, at paras. 27 and 46, I am satisfied beyond a reasonable doubt after considering all the evidence, including future treatment prospects, that Mr. J.H. poses a high likelihood of harmful recidivism and that his violent/aggressive pattern of conduct is intractable, meaning behaviour that he is unable to surmount.
71I designate Mr. J.H. a dangerous offender on counts 2 and 4.
72I turn now to the sentencing or penalty stage of the proceedings.
73I note at the outset that protection of the public is an enhanced sentencing objective in the case of a dangerous offender, but as discussed in Boutilier, I also must consider the sentencing principles and mandatory guidelines set out in ss. 718 to 718.2 of the Criminal Code: Boutilier, at paras. 53 to 63. I have done so.
74Section 753(4.1) of the Criminal Code requires that I impose an indeterminate sentence, unless I am satisfied by the evidence that there is a reasonable expectation that a determinate sentence of at least two years with a long-term supervision order, or a determinate sentence alone, will adequately protect the public against the commission by Mr. J.H. of murder or a serious personal injury offence.
75I must impose the least intrusive sentence required to achieve the primary purpose of Part XXIV of the Criminal Code, which is public protection. This means that in exercising my discretion under s. 753(4.1), if I am satisfied that a conventional sentence will adequately protect the public against the commission of murder or a serious personal injury offence, then I must impose that sentence. If I am not so satisfied, then I must consider whether I am satisfied that a conventional sentence of a minimum of two years in jail followed by a long-term supervision order for a period up to 10 years will adequately protect the public as described. If I am not so satisfied, then I must impose an indeterminate sentence: Boutilier, at paras. 69 to 70.
76I must turn my mind to whether the risk arising from Mr. J.H.’s behaviour can be adequately managed outside of an indeterminate sentence: Boutilier, at para. 31.
77I am not satisfied by the evidence including, in particular, the nature of the predicate offences and the assessment by Dr. Klassen, that a conventional sentence will adequately protect the public against the commission of murder or a serious personal injury offence by Mr. J.H.. I am satisfied and agree with counsel that a determinate sentence of at least two years in jail with a long-term supervision order of 10 years will adequately protect the public against the commission by Mr. J.H. of murder or a serious personal injury offence.
78As counsel have submitted, there is evidence of treatability that is more than an expression of hope. Mr. J.H.’s present position that he does not want to take sex-drive reducing medication is of some concern. But, he has expressed a willingness to participate in counselling and in particular is open to one on one counselling.
79Additional important factors are that he is in an ongoing relationship with Ms. M.M. and has other supports in the community, and it is expected that his risk for recidivism will decline once he turns 60, which is five years from now.
80I turn now to the length of the determinate sentence.
81In R. v. Spilman, 2018 ONCA 551, the Ontario Court of Appeal addressed whether, in deciding the length of a determinate sentence, the sentencing judge is restricted to imposing a term of imprisonment that would be appropriate for the predicate offence if the offender were not designated a dangerous offender. The Court decided that the judge is not so restricted. The judge must take into account the statutory limits of the offence for which the sentence is being imposed, the paramount purpose of public protection under the dangerous offender scheme in the Criminal Code, and other applicable sentencing principles in ss. 718 to 718.2. This may justify determinate sentences “lengthier than those appropriate outside the dangerous offender context”: Spilman, at para. 32. The Court enumerated six rationales for this, including that protection of the public is an enhanced objective of sentencing an offender who is designated a dangerous offender because of their past, current and likely future conduct; and that the offender is being sentenced “not only as a person who committed the predicate offence, but because he is a dangerous offender”: Spilman, at paras. 33 to 38.
82Mr. J.H.’s offences of sexual interference and make arrangement to commit a sexual offence against a child feature a number of aggravating circumstances. Both offences occurred during the same general time period. In each case, Mr. J.H.’s behaviour was predatory, designed to get him access to female children for sexual activity. He struck up supposedly romantic relationships with vulnerable widows who he knew had young female children in their care. He used those relationships with the women to get access to their daughter and stepdaughter respectively. In the case of Ms. H.H., he pressured her to breach her position of trust towards her child for his sexual pleasure. The text messages reveal the extent of his emotional manipulation of her. Ms. K.D. was pregnant by Mr. J.H. when he abused her stepdaughter.
83To state the obvious, both D.T. and A.P. were children. As children, they had limited ability to protect themselves from sexual predators, something Mr. J.H. knew very well. A.P., at the age of 9 years, was left to fend him off as best she could when he touched her on occasions when her stepmother allowed him to be alone with her. Although it is not suggested that Mr. J.H. touched 8 year old D.T. sexually, that was his goal. He did not limit himself to pressuring her mother for the opportunity. At some point when he was alone with D.T., he took the step of talking to her about being in the same bed with her mother and him. He then offered up the child’s apparent agreement, to try to persuade her mother. He was committed to making the sexual contact happen.
84Mr. J.H. was fully aware that his conduct in respect of both girls was unlawful. He discussed with Ms. H.H. that D.T. would keep a secret if told to do so by Ms. H.H.. He discussed with Ms. K.D. that he was bound by a s. 161 order not to be alone with children.
85Abuse of a person under 18 years, and significant impact on the victim are both recognized as aggravating circumstances under ss. 718.2(a)(ii.1) and (iii.1) of the Criminal Code. A.P. has suffered because of Mr. J.H.’s sexual abuse of her. She lost her family, and her sense of trust. She sees a therapist weekly.
86Mr. J.H. is of course a repeat sexual offender.
87The seriousness of the predicate offences is further aggravated in that they were committed notwithstanding that Mr. J.H. was then bound by multiple court orders. He was on probation and subject to a condition that he keep the peace and be of good behaviour. Additionally, he was bound by not just one but two s. 161 prohibition orders. He arranged to be alone with each of D.T. and A.P., contrary to the terms of those orders. In the case of A.P., this happened more than once. He also attended at playgrounds and recreation centres with Ms. K.D. and her children, in breach of the prohibitions. His disregard for those court orders was blatant.
88I take into account that there are mitigating factors. While I do not minimize the harm Mr. J.H. caused A.P., the sexual interference offence did not involve oral sex or penetration. The offence of make arrangement to commit a sexual offence against a child remained an inchoate crime, in that it was discovered before any sexual touching of the child in fact occurred. Mr. J.H. pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his offences. His guilty pleas were not early pleas, and witnesses did have to testify at a preliminary inquiry. But, he pleaded guilty in the Superior Court knowing that Crown counsel would seek to have him designated a dangerous offender. Ultimately, he consented to a dangerous offender designation, which along with his pleas has saved court time during a period of backlogged trials waiting to be heard.
89I also consider in mitigation, pursuant to R. v. Marshall, 2021 ONCA 344, that Mr. J.H. was subjected to lockdowns because of staffing shortages and medical issues during the COVID-19 pandemic, as distinct from lockdowns that are inherent in the running of a correctional facility. Additionally, I accept that being incarcerated in the congregate living setting of a detention centre during the COVID-19 pandemic has presented health risks that render the conditions of pre-sentencing incarceration more difficult than normal.
90Each of the offences of sexual interference and make arrangement to commit a sexual offence against a child carries, when prosecuted by indictment, a minimum sentence of one year in jail and a maximum sentence of 14 years’ imprisonment. Even absent a dangerous offender designation, the sentencing principles set out in ss. 718 to 718.2 would require that a lengthy penitentiary sentence be imposed in this case involving sexual abuse of one child and the making of an arrangement to sexually abuse another. The offences are serious and Mr. J.H.’s moral blameworthiness is high. Denunciation, deterrence, the need to separate Mr. J.H. from society, and reparation for and acknowledgment of the harm done to victims and the community are all relevant, particularly having regard to s. 718.01.
91But this is not the end of the analysis. Mr. J.H. is being sentenced as a dangerous offender, and not just as the person who committed the predicate offences. Protection of the public is an enhanced sentencing objective in this case.
92Dr. Klassen pointed out the challenges with management of Mr. J.H.’s moderately high risk of recidivism. I note that Mr. J.H. participated in Sex Offender Treatment Programming in the penitentiary in 2010, and in relapse prevention maintenance while on day parole in 2011 and 2012, as well as a repeat of Sex Offender Treatment Programming in 2012. Yet he was denied full parole, because of the Parole Board’s concern that his deviant sexual interests had not been sufficiently addressed. That concern was well-placed, given that he went on to commit the predicate offences in 2018. The sex offender treatment he completed, twice over, did not protect the public from him.
93Now, Dr. Klassen recommends that Mr. J.H. receive further Sex Offender Treatment Programming, and then some degree of maintenance treatment “for a considerable period of time”. Dr. Klassen’s report does not specify a time frame required for completion of this treatment. It is clear, however, that it is not enough that Mr. J.H. is willing to participate in sex offender treatment, or that he acknowledges his underlying problematic sexual interest. Dr. Klassen emphasizes that Mr. J.H. needs to help those treating him to understand what his offence cycle is, and what drives increased sexual fantasy and resultant offending behaviours. This is solely within Mr. J.H.’s power to do. So far, he has failed to do it.
94In addition, Dr. Klassen sees treatment with sex-drive reducing pharmacotherapy as an important component of Mr. J.H.’s risk management. It was suggested to me during counsels’ submissions that Mr. J.H. is willing to take such medication. In fact, in his remarks at the end of the sentencing hearing he indicated that he is not.
95In these circumstances, to use Dr. Klassen’s words, “the passage of time, and accompanying age-related decline in propensity” becomes more important in the attenuation of Mr. J.H.’s risk of sexual re-offence.
96A sentence longer than what might be imposed for the predicate offences in the absence of a dangerous offender designation is necessary to protect the public from Mr. J.H., specifically the most vulnerable members of our community, children. A lengthy penitentiary sentence is required. It must provide a reasonable period of time within which sexual offender treatment focused on Mr. J.H.’s paraphilic disorder can occur, along with age-related decline in Mr. J.H.’s propensity to commit sexual offences.
97I have concluded that a total sentence of eight years in the penitentiary is the least intrusive sentence required to serve the public protection purpose of Part XXIV of the Criminal Code.
98Turning to the issue of credit for pre-sentence custody, I am not persuaded that Mr. J.H. should receive no measure of enhanced credit. I think that it is unlikely he will receive either early release or parole. The Parole Board previously expressed concerns about him and denied him full parole, he committed an offence while still on Mandatory Supervision, he subsequently committed the two predicate offences involving children, and he committed those predicate offences while bound by three separate court orders.
99I agree that this does not address the qualitative rationale for pre-sentence custody credit, which is the relative harshness of the conditions of detention. I have little information about the conditions of Mr. J.H.’s detention. While I can infer some measure of harshness from information I have received about the institution in other cases, I note that Mr. J.H. has been able to take some educational programs. He also has been able to work at times as a server and a cleaner. This attenuates the harshness of his detention. As discussed above, I already have taken lockdowns due to staffing shortages and COVID-19 as well as the impact of detention during the pandemic into account as mitigating circumstances, in accordance with Marshall.
100While Mr. J.H. will receive some enhanced credit for pre-sentence custody, it will be minimal. A lengthy period of incarceration is necessary to ensure that he successfully completes sex offender treatment programming focused on his paraphilic disorder and to allow for him to age closer to the 60 year mark. I do not intend enhanced pre-sentence custody credit to interfere with the length of the sentence I have decided is necessary to adequately protect the public from recidivism by Mr. J.H..
101I enhance Mr. J.H.’s 41 months of pre-sentence custody to 46 months.
102I agree with Crown and defence counsel that the jail sentence should be followed by a long-term supervision order for 10 years. I recommend that the following conditions be included in the long-term supervision order:
Report as required by Correctional Service Canada.
Reside where directed by Correctional Service Canada and follow the rules of that residence.
Upon request, present yourself at the door of your residence to Correctional Service Canada or a peace officer for the purpose of ensuring compliance with this order.
Take any counselling as directed by Correctional Service Canada including Sexual Offender Treatment Programming, with a particular emphasis on paraphilic disorders.
Follow any treatment program as directed by a physician/psychiatrist and sign any releases in favour of Correctional Service Canada to allow the program to be monitored. This treatment program may include sex-drive reducing pharmacology. Any refusal by you to consent to the prescription of sex-drive reducing medication shall be promptly reported by the physician/psychiatrist to Correctional Service Canada.
Upon request, take any medication prescribed to you as prescribed, in the presence of Correctional Service Canada staff or their designate.
Submit to random blood tests and urine toxicology screening in order to monitor compliance with prescribed medications.
Immediately inform Correctional Service Canada if you enter into an intimate relationship with any person, including the contact information for that person.
Not associate with any person deemed unsuitable by Correctional Service Canada.
Not communicate, including by electronic means, or associate with any female person under the age of 18 years.
Not reside in a residence with any female person under the age of 18 years.
Not possess any weapon.
Abide by any boundary or geographical restriction imposed by Correctional Service Canada.
Keep the peace and be of good behaviour.
Conclusion
103On count 4, the offence of make arrangement to commit a sexual offence against a child, the sentence is five years in jail, less credit for pre-sentence custody of 41 months enhanced to 46 months, leaving a sentence of 14 months to serve. On count 2, the offence of sexual interference, the sentence is three years in jail, consecutive. To be clear, the total sentence on the predicate offences is eight years in jail, less 46 months of credit, leaving a sentence to be served of four years and two months in the penitentiary. In addition, I make a long-term supervision order for 10 years.
104On count 1 the sentence is one year in jail, concurrent to the sentences on counts 2 and 4. The sentence on count 5 is one year in jail, concurrent to the sentences on all other counts.
105There is a DNA order, a s. 109 order for life, and a SOIRA order for life on counts 2 and 4.
106On counts 1, 2 and 4 there is a s. 161(a), (a.1), (b), (c) and (d) order for 10 years. Under clause (a.1) you will not be within 100 meters of the place of residence, employment, education or other place you know H.H., D.T., or A.P. to be. Under clause (c), the words “except under the direct supervision of a person 21 years of age or older” will be added. Under clause (d) the words “except to use the internet for the purpose of employment, to manage his own financial affairs, or when under the direct supervision of a person who is 21 years of age or older” will be added.
107There is a. 743.21 non-communication order in respect of H.H., D.T., and A.P..
Justice M.K. Fuerst
Released: February 3, 2022
NOTE: As noted in court on the record, these written reasons are to be considered the official version and take precedence over the oral reasons read into the record. In the event of discrepancies between the oral and written versions, it is the written reasons that are to be relied upon.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.H.
Defendant
REASONS FOR JUDGMENT
Justice M.K. Fuerst
Released: February 3, 2022
