Court File and Parties

Court File No.: 09-00694 Date: 2025-10-29 Ontario Superior Court of Justice

Between: His Majesty The King, Applicant – and – S.M., Respondent

Counsel:

• Kerri Watson, Counsel for the Applicant
• Self-Represented Respondent
• Robert Richardson, Amicus Curiae

Heard: October 14, 2025 (Kingston)

Restriction on Publication

An order has been made pursuant to subsection 486.31(1) of the Criminal Code, directing that any information that could identify a witness will not be disclosed in the course of the proceedings.

Ruling on an Application Pursuant to Section 752.1

Justice A. Doyle

Overview

[1] The Crown applies under s. 752.1(1) of the Criminal Code for an order remanding S.M. (the offender) for an assessment by an expert for use as evidence in an application to have S.M. declared a dangerous offender or a long-term offender.

[2] At the hearing, the court granted the application, for reasons to follow.

[3] These are the reasons.

[4] The application follows S.M.'s convictions for two sexual assaults against his two biological daughters. The offence of sexual assault is an enumerated offence under s. 753.1(2) and thus qualifies as an offence for which an application may be made for a declaration that the offender is a dangerous or long-term offender pursuant to s. 752.1(1) of the Criminal Code.

[5] The charge, as it relates to his daughter, V.M. (born January 12, 1993), is that between January 1, 2000 and January 12, 2005, he sexually assaulted her.

[6] With respect to his daughter, M.M. (born February 2, 1987), the sexual assaults were alleged to have occurred between January 1, 1993 and February 2, 1998.

[7] At the trial, S.M. pled guilty to two charges of sexual assault.

[8] S.M. admitted that he rubbed his bare erect penis on his two daughters' naked vaginas. He denies that he penetrated or touched either of his daughters with any other part of his body.

[9] The Crown alleged that S.M. sexually assaulted M.M. and V.M. seven times which included S.M. rubbing his penis on their vaginas, attempting to penetrate with his penis, oral sex and fingering after taking off their clothes.

[10] The Crown proceeded to call evidence at a Gardiner hearing, seeking to prove the facts of the sexual assaults against both complainants.

[11] On May 12, 2025, the Court found beyond a reasonable doubt that the offender sexually assaulted his daughters on multiple occasions when they were between the ages of six and ten years old, by touching their naked vaginal area with his penis, his fingers, and engaging in oral sex (R. v. S.M., 2025 ONSC 4077).

[12] Upon conviction, the Crown gave notice of its intention to proceed with this application based on the predicate offences of which he was convicted, his previous criminal record, occurrence reports, charges which did not result in convictions, and previous assessments and reports.

[13] This application was originally scheduled for August 12, 2025 at which time the court granted S.M.'s request for an adjournment so that he could retain counsel. S.M. indicated that he could not retain counsel so long as the amicus curiae (amicus) was involved.

[14] On July 26, 2023, Justice Mew ordered an amicus as S.M. was not represented. Mr. Richardson was appointed.

[15] Given S.M.'s request at this hearing, the court discharged the amicus but reserved the right to request the assistance of an amicus in the future, if and when necessary, in the interests of justice.

[16] At this hearing, S.M. attended before the court without counsel and indicated that he was unable to retain counsel.

[17] With consent of S.M., the Court ordered Mr. Richardson to resume to act as amicus at this hearing and any future dangerous offender hearing. The amicus filed an extensive factum and authorities to assist the court.

[18] In his submissions, S.M. indicated that he does not intend to re-offend, he wishes to spend time with his elderly mother and indicated that he has participated in many programs while incarcerated and he has gained insight into his behaviour.

Application of the Current Dangerous Offender Provisions

[19] In 2008, the dangerous offender provisions were amended which removed the court's discretion to grant or deny an application under s. 752.1 if the legal requirements had been met.

[20] In R. v. Cornelius Vanderwal, 2010 ONSC 265, the court discussed the changes to the dangerous offender provisions.

[21] The current provisions mandate the court to grant an assessment if the Crown meets its onus to show reasonable grounds to believe that the offender might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1 of the Code.

[22] At para. 14 in Vanderwal, the Court found that the amendment is procedural in nature as "it simply facilitates the provision of proof in an application for an order." It affords the Crown access to an assessment of the offender and does not remove the offender's right to a fair hearing or the right to challenge the Crown's evidence at the hearing or call evidence at the hearing.

[23] The amicus did not take a position on this issue.

[24] I agree with the observations made in Vanderwal that these changes are procedural in nature and hence have retrospective effect. Accordingly, I will apply the current assessment provisions in s. 752.1 as they are currently drafted.

The Evidence

[25] At a previous hearing on August 27, 2014, S.M. was originally convicted of the predicate offences and later, he was designated a dangerous offender. In 2022, the Ontario Court of Appeal overturned his convictions and consequently his dangerous offender designation. A new trial was ordered.

[26] As stated above, he was convicted on the predicate offences in May 2025 after the Gardiner hearing.

[27] The amicus submits that the court should only consider the phallometric testing report of Dr. Marshall dated February 2, 1999 and the sex offender assessment report of Dr. Fernandez dated December 27, 2007 at this threshold stage.

[28] The amicus objects to the admission of the reports and assessments created after 2007, on the basis that they were prepared for the predicate offences for which S.M. originally had been convicted, but the convictions were overturned on appeal. No case law or jurisprudence was filed to support this position.

[29] I disagree. At this stage of the process, the court can admit the reports filed by the Crown as they are relevant to the issue of whether an assessment should be ordered.

[30] At the dangerous hearing stage, the offender can then challenge the Crown's evidence. At that stage, the court will scrutinize any information being tendered to determine its admissibility and weight to be given to it.

[31] At this stage, the court is dealing with only the threshold issue of whether or not the offender might be found to be a dangerous or long-term offender. As stated at para 21 in Vanderwal, at the dangerous offender hearing, the offender will have the right to challenge the Crown's evidence, and the Crown must prove beyond a reasonable doubt any conduct which is not the subject of criminal convictions.

[32] I will consider the information filed as it is relevant to the issue as to whether an assessment should be ordered.

Analysis

Introduction

[33] The dangerous offender and long-term offender scheme addresses the management and sentencing of individual who is deemed to pose a substantial risk to public safety.

[34] The dangerous offender designation allows the court to impose sentences longer than those prescribed in the Code. The process involves two stages: the designation stage, which is concerned with assessing the future threat posed by the offender, and the penalty stage, concerned with imposing the appropriate sentence to manage the established threat. R. v. Boutilier, 2017 SCC 64, para. 31.

[35] The predicate offence of sexual assault is an enumerated offence under s. 753.1(2) and thus qualifies for an offence for which an application may be made for a declaration that the offender may be found to be a dangerous or long-term offender.

[36] An assessment shall be made if the court is of the opinion that there are reasonable grounds to believe that S.M., who was convicted of a serious personal injury offence or an offence referred to in s. 753.1(2), might be found to be a dangerous offender or a long-term offender. The Court would then remand the offender for a period not exceeding 60 days to a person designated by the court to perform an assessment.

[37] The test for the finding of an offender to be a dangerous offender is found in s. 753(1):

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

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

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

iii. any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

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

[38] If the court does not find an offender to be a dangerous offender, then under s. 753.1(1), the court may find him to be a long-term offender:

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

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

b) there is a substantial risk that the offender will reoffend; and

c) there is a reasonable possibility of eventual control of the risk in the community.

Decision

[39] In this application, the threshold is a low one. It is less than the civil burden of proof and far less than the criminal burden of proof. The court is required to consider the total record of evidence and information in support of the application to determine whether there are reasonable grounds to believe the offender might be found to be a dangerous offender or a long-term offender. R. v. Torres, O.J. No. 1402

Step 1

[40] The amicus has conceded that S.M. has committed a sexual assault, which is an enumerated offence under 752(b) of the Code, as a precondition to a dangerous offender finding; an enumerate offence under s. 753.1(2)(a), as required for a long-term offending finding; and a serious personal injury offence as defined by the Code.

[41] S.M. has been convicted of a serious personal injury offence, as required by s. 753.(1)(a) or (b) to support a dangerous offender finding, or by s. 753.1(2)(a) to support a possible long-term offender finding.

[42] I find that the Crown has met the first part of the test under s. 752.1, demonstrating reasonable grounds that S.M. has been convicted of a serious personal injury offence or an offence enumerated under s. 753.1(2)(a) of the Code.

Step 2

[43] For the reasons set out below, I find that there are reasonable grounds to believe S.M. might be found to be a dangerous offender or a long-term offender.

[44] I find that the serious personal injury offences of sexual assault, and the evidence and information filed demonstrate that S.M. might be found to be dangerous offender by the reason of the fact that he presents a threat to the safety and physical and or mental well-being of another person.

[45] I have considered S.M.'s lengthy criminal record spanning over three decades. It shows a persistent pattern of property offences, impaired driving offences, breaches of court orders and violent offences. Throughout this period of time, the Court has found beyond a reasonable doubt that he sexually assaulted his biological daughters on numerous occasions. The assessments filed show he is at high risk of offending if released into the community.

[46] I note Justice Nordheimer's (as he then was) comments in R. v. P.H., at para. 32 that the court is a gatekeeper:

I accept the Crown's point that the threshold for obtaining an assessment order is not a high one. At the same time, however, the threshold ought not to be placed so low that it will result in an assessment order being made in virtually any case where the underlying offences are disturbing or upsetting. The assessment order is the starting point for the dangerous offender and long-term offender application. It puts into play a time consuming process that may ultimately lead to the imposition of one of the most serious penalties available for an offender. It seems to me that it is the responsibility of the court to act as a gatekeeper regarding such applications to ensure that the process is not put in motion except in those cases where there is a reasonable prospect that the relief sought might actually be granted, that is, where there is a real possibility, to use the language from Naess, that an application for either designation might be successful. For the reasons elaborated below, I find that the Crown has shown that S.M. might be designated a dangerous offender.

[47] S.M. has shown a pattern of repetitive behaviour, of which the offence for which he has been convicted, forms a part. He has shown a failure to restrain his behaviour and there is a likelihood in the future of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure to restrain his behaviour.

[48] Also, he has shown a pattern of persistent aggressive behaviour, of which the offence for which he has been convicted forms a part. He has demonstrated a substantial degree of indifference to the reasonably foreseeable consequences of his behavior on other persons.

[49] I also find that, based on the evidence before the court, the Crown has shown that S.M. might be designated a long-term offender, as it would be appropriate to impose a sentence of imprisonment of two years or more for the predicate offences; that he has been convicted of such an offence; that there is a substantial risk that he will reoffend; and that there is a reasonable possibility of eventual control of the risk in the community.

[50] First, I turn to S.M.'s criminal record. He has 83 convictions over 35 separate sentencing dates. The record commences with a 1983 conviction for theft under $200, and there have been no significant crime-free gaps.

[51] He has been convicted 15 times for driving offences, 22 times for property convictions, and four times for violent offences. He has 15 breaches and failures, including breaches of conditional releases and bail conditions, failures to appear or comply with parole conditions. He has been convicted of three sexual offences against women, and there have been five sexual assault charges that were withdrawn. S.M. was also implicated in a sexual assault charge in Minnesota, and he did not return to the jurisdiction to address those charges.

[52] On September 24, 2007, he was convicted of aggravated assault, attempted kidnapping, assault with a weapon (x2), possession of weapon, fail to stop at scene of accident, driving while disqualified (x3), flight while pursued by peace officer, taking a motor vehicle without consent, theft under, attempted theft under (x2), and obstruction of a peace officer. He received a seven-year sentence for these offences.

[53] On January 12, 2016, he was convicted of possession of a weapon relating to a handmade weapon found in his possession at Warkworth Institution (WI) and received a sentence of 60 days, concurrent.

[54] He has a history of mental health issues including anti-social and borderline personality disorder and some traits of psychopathy and demonstrated sexual impulsivity.

[55] With respect to the assessments before the court, the dangerous offender risk assessment prepared by Dr. G.D. Glancy, dated December 11, 2013, indicates at page 4 that he noted S.M. demonstrates "significant denial and minimization".

[56] At page 8, Dr. Glancy observes that "It is noted that the evaluee has a history of violence since he was an adult. He has a long history of other antisocial behaviour as an adult. He has current problems with intimate relationships and possibly non-intimate relationships. He has had chronic employment problems. There is a history of alcohol use disorder and possibly abuse of other substances. There is a history suggestive of antisocial personality disorder with evidence of moderate degree of psychopathy. He has a history of being victimized in a variety of ways as a child. His treatment and supervision response has been poor in the past evidenced by a number of failures of conditional release".

[57] Further at page 9: "A number of items suggest a high potential for violent and antisocial recidivism. He has little insight into his own functioning. He shows affective instability at various times, most recently where he was in segregation for a period of time and was acutely disturbed. Although he is currently in treatment within the institution, his ability to maintain and respond to treatment on the outside has been historically poor. He has significant difficulties with stress and coping. It is noted that he has a significant amount of institutional infractions, including sexual infractions within the institution, with allegations of sexually predatory behaviour. His sexual offenses against his daughters occurred during family visits to the Bath institution, within the perimeter of the Federal penitentiary. This suggests that he will be very difficult to supervise in the community."

[58] Of course, this report was completed 12 years ago when S.M. was in his early 50's. Time has elapsed. On page 17, Dr. Glancy speaks of the age factor: "There is evidence to suggest that over the age of 60 there is a significant decrease in sexual recidivism. There is also some decrease in other types of recidivism."

[59] On page 18, "In addition the evaluee has shown a failure to control his sexual impulses and there is a future likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses. It would also be my opinion that the evaluee has shown a substantial degree of indifference regarding the reasonably foreseeable consequences of his behaviour."

[60] He also states that: "If the court is considering finding the evaluee to be a long-term offender, it is of relevance to note that it is my opinion that there is a substantial risk that he will re-offend. Despite the number of offenses for which he has pleaded guilty, and he has been convicted, taking into account the charges that were withdrawn and those for which he did not return to face justice, it is of note that he has not had intensive supervision or ongoing community treatment regarding specifically sexual issues as far as I can see from the information available. In these circumstances it is often the case that the court makes a finding of a long-term offender. However, it is of note that there are 15 instances on file that he has failed on some sort of conditional release in the past."

[61] In the next two reports discussed below, S.M. was not interviewed as he declined.

[62] In the psychological risk assessment at Millhaven Institution dated May 15, 2018, prepared by Dr. K. Barr, on page 3 under the title of Institutional Programs and Intervention Activities, Dr. Barr notes that S.M. participated in the following intervention activities:

• Millhaven sex offender program
• Moderate intensity substance abuse program
• Substance abuse maintenance program
• Violence prevention program
• High intensity sex offender program
• Sex offender maintenance program
• Segregation intervention program

[63] In addition, S.M. completed his secondary school diploma in April 2015.

[64] Also, on page 3, Dr. Barr reported that "S.M. is reported to have made some gains in his programs targeting his sexual offending. The Post Program report from Warkworth (2014-04-15) states the following "S.M. acknowledged that he is awaiting sentencing on new charges related to the sexual abuse inflicted upon----. He stated that he did not wish to contest any of the allegations made by ---- as he does not want to cause them any further distress (such as a trial). S.M. was able to recognize that his lifestyle before incarceration was unhealthy and that he placed an unusually high value on sex. He was able to identify a direct link between his sexual preoccupation and engagement in risky behaviours, although he was not clear on how he intended to decrease his preoccupation or achieve sexual satisfaction through healthier means."

[65] In the psychological risk assessment of Dr. W. Lowza dated June 17, 2020, on page 18, he outlines several concerns:

S.M. (sic) continues to deny his involvement in the sexually predatory behaviour committed institutionally despite evidence to the contrary, the gains made through successful completion of sexual offender programming, including maintenance programming, were superficial at best and not generalized to his daily life. S.M. (sic) has wide potential victim pool with no specific preference other than for vulnerable people "and the strict supervision provided by both clinical and security staff in the institutional setting were not sufficient to prevent him from engaging in predatory behaviour institutionally".

[66] On page 1: "It should be noted that the assessment was completed without interview and psychometric testing data that can be of limited accuracy and have the potential to yield misleading results."

[67] At page 16, the report indicates that the potential victim pool could be considered broader than was initially believed. Rather than being limited to prepubescent females and adult female sex trade workers, the author states that it likely extends to other individuals, of any sex, who are vulnerable to exploitation for reasons of age, mental/intellectual status, societal marginalization, etc.

[68] Also, "Given that he has been accused of sexually predatory behaviour at three different institutions, this suggests that he is still at risk of offending even before a release to the community is considered."

[69] Since he did not participate, the doctor relied on the psychosocial history of his correctional plan.

[70] Page 7 of Dr. Lowza's report indicates that S.M. demonstrated an institutional pattern of predatory sexual behaviour. While incarcerated at Quinte Detention centre in 2004, he was charged with sexual assault of a cellmate, and he was involuntarily segregated at the Regional Treatment centre on January 27, 2011, after he had allegedly assaulted another offender by forcing him to perform fellatio.

[71] He was segregated at Warkworth Institution in November 2015, after there was an allegation that he had sexually assaulted another offender.

[72] According to the segregation review board report at WI, he defecated and consumed his own feces. Due to this and ongoing mental health concerns, he was transferred to RTC in February 2016.

[73] On an emergency basis, he was transferred involuntarily from Bath Institution to Millhaven Institution on January 23, 2017, as a result of being accused of sexually assaulting another inmate at RTC BI. It was alleged that he had forced another inmate to have sexual relations with him on more than one occasion. The victim had a lower functioning mental capacity.

[74] Charges were not laid for the above.

[75] It is noted that while in a program, S.M. described a decrease in his preoccupation with sexual activity and wished to be chemically castrated but was reminded that the program was aimed at assisting him in finding healthy and legal ways to meet his sexual needs.

[76] I do note that S.M. has served substantial pre-trial custody of 11 years which would translate to over 16 years on a 1:1.5 credit. I do note that the Code provides for ancillary orders that could reduce the risk to the community if S.M. is released. I also note that S.M. is older and disabled and Dr. Glancy's assessment indicates that sexual aggression declines after age 60.

[77] Nevertheless, there is plethora of evidence before the court that demonstrates a pattern of repetitive behaviour where S.M. has failed to restrain himself. S.M. has also demonstrated persistent aggressive behaviour and substantial indifference respecting the reasonably foreseeable consequences to other persons.

[78] The Crown has met the low threshold of showing that he might be designated a dangerous offender or long-term offender. He has shown a persistent pattern of behavior, and a pattern of persistent aggressive behaviour as evidenced in his criminal record and confirmed in the reports before the court.

[79] Given that the Crown has met its burden, the court mandates the assessment.

[80] Accordingly, the court grants the Crown's application.

Date: October 29, 2025

_______________________________

Justice A. Doyle

Released: October 29, 2025