R v Cosman, 2016 ABQB 170

Court of Queen’s Bench of Alberta Citation: R v Cosman, 2016 ABQB 170 Date: 20160322 Docket: 120223599Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jeffrey Freeman Cosman Offender Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the

Honourable Madam Justice M.G. Crighton _______________________________________________________ I. Introduction [ 1 ] On April 11, 2014, I found Mr. Cosman guilty on Count 1: sexual assault causing bodily harm of LR ( Criminal Code , RSC 1985, c C-46, s 272), and Counts 2 and 3: sexual assault of AN ( Criminal Code , s 271). [ 2 ] Immediately following that conviction, the Crown applied to have Mr. Cosman remanded for assessment pursuant to Criminal Code , s 752. The Defence conceded the requirements for assessment were met. Dr. Brown, a forensic psychiatrist, and Dr.

Andrew Haag, a forensic psychologist, completed that assessment in July 2014. Both of them were qualified as experts and testified in the sentencing hearing. [ 3 ] Following completion of the assessment, the Crown applied under

Part XXIV, s 753(1)(a)(i),(ii) and (

b) of the Criminal Code to have Mr. Cosman declared a dangerous offender with respect to Count 1, sexual assault causing bodily harm against LR, and incarcerated for an indefinite term. [ 4 ] The Defence concedes the Crown has met its burden in relation to all three subsections, but recognizes that only one of those sections needs to be established.

The Defence, however, argues that a determinate sentence followed by a 10-year long-term supervision order [“LTSO”] will adequately protect the public against this Offender committing any further serious personal injury offences. [ 5 ] The requirements for each of the provisions relied on by the Crown are set out in the Criminal Code and I will not repeat them here. Suffice it to say the Crown must prove beyond a reasonable doubt that Mr.

Cosman: 1. committed a serious personal injury offence, 2. that forms part of a pattern of violent or sexual behaviour causing harm, and 3. is likely to continue to cause harm in the future. Where this is established under any one of the relied upon provisions, an indeterminate sentence is presumed unless one of the lesser sentencing options stipulated in s 753(4)(

b) or (

c) can reasonably be expected to protect the public from Mr. Cosman committing murder or a serious personal injury offence in the future. Those options are to sentence Mr. Cosman to not less than 2 years for the index offences followed by an LTSO for not more than 10 years or to sentence him to a determinate sentence for the index offences. The Defence does not argue for the latter. [ 6 ] Notwithstanding the Defence concedes the Crown has met its burden, the Court must still be satisfied the Crown has done so. To make that finding, the Court must consider those provisions contextually, having regard to Mr.

Cosman’s personal background, his criminal history, his incarceration history, and his programming and supervision history. [ 7 ] Accordingly, any consideration of the potential application of the dangerous offender provisions to Mr. Cosman must begin from that historical perspective. II. Evidence Sources and Reliability [ 8 ] The Court was assisted by a voluminous documentary history of Mr.

Cosman’s incarceration, including various intake and psychological assessments at various times, as well as numerous progress reports or performance logs compiled by professionals tasked with their preparation. [ 9 ] In addition, a number of individuals who were involved either in Mr. Cosman’s institutional or community supervision, or in his targeted programming testified in the sentencing hearing. Virtually all of them had many years of experience in their field and all who testified did so in a fair, professional and objective way. Most of the witnesses who encountered Mr.

Cosman had no recollection or had limited recollection of having done so, but their records are nevertheless a valuable source of information. I have no concerns regarding the accuracy of the evidence they provided, and Counsel agreed that all of Mr. Cosman’s incarceration and offence records were admitted for the truth of their content. III. Mr. Cosman’s Personal Background [ 10 ] Mr. Cosman is 40 years old. The evidence establishes that he grew up in a moderately tumultuous environment. His parents separated more than once before they finally separated when he was 14. Mr.

Cosman did not adapt well to that changed dynamic. The records, and indeed Mr. Cosman’s sister’s testimony in this sentencing hearing, confirmed that he had a love/hate relationship with his father. The Court heard that Mr. Cosman Senior had high expectations of his children, and was a strict and physical disciplinarian when Mr. Cosman failed to meet those expectations. [ 11 ] Mr. Cosman began to drink regularly when he was 14 and told the assessors that he had tried virtually every drug except heroin.

He had some difficulties in school, having failed grade four and earned occasional suspensions as a result of behavioural problems directed at teachers. His mother underwent treatment for cancer when Mr. Cosman was 14 years old and Mr. Cosman served as

her primary care giver because his sister had already left home and his father was rarely home during the week. [ 12 ] Mr. Cosman earned his high school diploma at the Bluewater Facility in Ontario while serving time for his first criminal offence. Thereafter, and prior to his present incarceration, Mr. Cosman completed part of his apprenticeship to become a journeyman pipefitter. He did not have difficulty finding work and, for the most part, when in community, was employed fulltime. He also had several relationships of shorter duration, but eventually married and had a child. [ 13 ] Mr.

Cosman also has a support network, virtually the same support network that was considered mitigating when he was sentenced for his sexual assault causing bodily harm offence against CM in June 2003. He remains close friends with his ex-wife and maintains a close relationship with his sister, who was present throughout much of the sentencing hearing. Both individuals testified on his behalf in the sentencing hearing, and confirmed much of Mr. Cosman’s personal circumstances, both past and present. IV. Mr.

Cosman’s Offence History [ 14 ] Because the dangerous offender provisions concern the particular nature of the predicate offence and the overall pattern of his criminal behaviour, the factual nature of Mr. Cosman’s criminal offences will be particularly relevant to the question whether the Crown has met its burden and proved a dangerous offender declaration is appropriate. A. The 1992 Offence [ 15 ] Mr. Cosman committed his first criminal offence in 1992 when he was 16.

Although there is no record of the court proceedings, it can be inferred from the dates of some of the reports, and from his sentencing date, that Mr. Cosman pled guilty to break and enter and forcible confinement, sexual assault and robbery of an elderly neighbour, MP. [ 16 ] The version of events that Mr. Cosman consistently recounted, including to the assessing psychiatrist and psychologist in this sentencing hearing, is that Mr. Cosman broke into MP’s bedroom, which was located on the upper level of a home. Mr. Cosman and his mother rented the basement. [ 17 ] Mr.

Cosman was severely intoxicated and high at the time and has consistently maintained he had no intention of raping the 63-year-old female. Rather, the decision to rape MP was impulsive. He recounted that he turned her over after blindfolding her and binding her hands and in the process, exposed her naked genitalia that caused him to become aroused. He then forced penile vaginal intercourse on her. [ 18 ] Mr. Cosman was sentenced to secure custody followed by open custody and a period of probation. He served part of his custodial sentence at the Bluewater Youth Facility.

The remainder of his sentence was converted to probation after a review of his progress. He was released into his father’s custody to complete that probation which ended on March 29, 1994. Thereafter, Mr. Cosman led a relatively transient lifestyle and eventually moved to Newfoundland where he was living in 1997. B. The 1997 Offence [ 19 ] On October 31, 1997, Mr. Cosman pled guilty to assault with use of force, and break and enter with intent to commit an indictable offence. The circumstances noted by the sentencing judge are that Mr.

Cosman entered an occupied dwelling house with evil intent, and once inside, entered the bedroom of a 12-year-old girl. The girl’s father came to investigate the sounds he heard coming from his daughter’s room and found Mr. Cosman with one knee on the bed, one hand on his daughter’s face covering her mouth and the other on her throat. The father turned on the light and Mr. Cosman ran past him through the bedroom door. After a scuffle between Mr. Cosman and the girl’s father, Mr. Cosman fled to an adjacent street where police found him. [ 20 ] Mr.

Cosman told the assessors that he was dropped off by friends after a night of drinking and entered the home because he believed it was his own. He told them he had recently moved to the area and his home was located very near the one he entered. [ 21 ] In sentencing Mr. Cosman to 2 years in prison followed by 3 years’ probation, the sentencing judge noted that while Mr. Cosman caused no physical injuries, his behaviour had psychologically terrorized both the father and his child. [ 22 ] Mr. Cosman served his sentence at the Dorchester Penitentiary in New Brunswick until his statutory release date in March 1999.

Mr. Cosman then began a 3-year period of probation, first supervised in Newfoundland and New Brunswick, and eventually transferred to Alberta in the last third of that probationary period. [ 23 ] Mr. Cosman’s probation was supposed to expire on November 5, 2002, but before that occurred, Mr. Cosman again reoffended on May 26, 2002. C. The 2002 Offences [ 24 ] On that date, Mr. Cosman had been in the bar drinking with his sister and her friends. They were celebrating Mr. Cosman’s sister’s birthday. Among those present that night was the victim, CM. [ 25 ] For reasons that are not particularly germane, Mr.

Cosman offered the victim a ride home in his truck. CM accepted. He asked the victim for a kiss which she refused. He then drove to a deserted road where he forced CM to perform fellatio, followed by penile vaginal intercourse. He ejaculated on CM’s stomach and she kept the Kleenex he gave her to clean up. [ 26 ] Mr. Cosman then drove her back to the city and dropped CM 10 blocks from her home. She memorized all but one number

from his licence plate and reported the offence the next day. [ 27 ] The trial judge concluded that the victim had not verbally indicated any interest in pursuing a sexual or social interaction with Mr. Cosman. She found that the victim had instead rebuffed Mr. Cosman’s request to kiss her. The trial judge concluded that CM acquiescing in Mr. Cosman sharing her cab was not the initial stages of seduction, nor was later accepting a ride from him an invitation to sexual activity. The trial judge also found that Mr.

Cosman caused four genital lacerations to CM and caused her considerable psychological distress. [ 28 ] Mr. Cosman was sentenced to 5 years for sexual assault causing bodily harm. He served some of his time at the Regional Psychiatric Center [“RPC”] in Regina and participated in its high intensity sex offender program. The remainder of his sentence was served at the Bowden facility in Alberta. The National Parole Board approved Mr. Cosman’s early release on day parole on April 20, 2006 and he remained on supervision in the community until June 19, 2008. D.

The Index Offences [ 29 ] The Court’s oral reasons for convicting Mr. Cosman of the index offences provide greater detail about what happened on the night in question, but in

summary, on February 20, 2012, after an evening of drinking, Mr. Cosman accepted an invitation to join LR and two of her friends at LR’s condo. They intended to play drinking games at the condo and generally to have fun. LR knew Mr. Cosman from some very limited interaction at his workplace, but they had not socialized outside of work. [ 30 ] As the evening wound down rather abruptly, Mr. Cosman asked if he could spend the night at LR’s condo because he was too drunk to drive. After LR, AN and Mr. Cosman had retired for the evening in separate areas of the condo, Mr.

Cosman twice sexually assaulted AN while she slept in another bedroom. After being twice rebuffed by AN, Mr. Cosman then proceeded to sexually assault LR and cause her bodily harm as she tried to sleep, fully clothed on the living room floor. [ 31 ] The sexual assaults against AN would be characterized as minor – more in the nature of sexual touching, but the offence against LR would not. Mr. Cosman inflicted physical and severe psychological trauma on LR. [ 32 ] The evidence at trial revealed that Mr.

Cosman vaginally and anally penetrated LR, and her tampon had to be removed by the SART nurse from the back of her cervix. Mr. Cosman punched LR twice in the face with his closed fist which caused LR’s nose to bleed profusely and left visible bruising and swelling to her nose and forehead. [ 33 ] LR testified at trial and again in this sentencing hearing for purposes of providing a Victim Impact Statement about the effect Mr. Cosman’s actions had on her life. In addition to the injuries to her nose and forehead, she missed more than three months of work because her emotional state did not allow her to be there.

LR testified that she was unable to return to her condo for about a month after the assault, and that even after she returned, she did not feel safe. She eventually sold the condo. LR testified that she had required medication for depression, and she was still having difficulty sleeping. On the date she gave her Victim Impact Statement, nearly four years post-offence, she testified that she had difficulty trusting people and that she had not yet been able to move on with her life. [ 34 ] Following Mr.

Cosman’s trial, the Court concluded that the events leading up to the accused and LR retiring for the evening offered no indication of sexual interest by LR in Mr. Cosman. Any innuendo that evening was Mr. Cosman’s, not LR’s. V. Mr. Cosman’s Supervision and Rehabilitation Programming History [ 35 ] In addition to Mr. Cosman’s past criminal behaviour, his treatment and supervisory history are also relevant to the question both of the designation and the appropriate sentence. [ 36 ] With the exception of Mr.

Cosman’s first offence, for which the record is not complete, the documentary evidence and the testimony offered by the Crown’s witnesses in the sentencing hearing establish a complete and comprehensive picture of Mr. Cosman’s criminal past and his institutional, community and programing performance. [ 37 ] One can infer from the evidence relevant to Mr. Cosman’s time at the Bluewater Youth Facility that he participated in the sex offender program it offered. Dr.

Brown testified that based on his review of those records, the Bluewater program appeared more akin to individual and group psychotherapy than to the more modern cognitive behavioural models used today. [ 38 ] Ms. Kathy Norris testified regarding her preparation of Mr. Cosman’s predisposition report in which she stated that a secured environment would better address Mr. Cosman’s needs as effective programming for those needs was not then available in the community. [ 39 ] The records indicate that Mr.

Cosman was initially assessed as being in the insipient stage of alcoholism and having a mild degree of Explosive Personality Disorder. After undergoing a specialized sexual offender assessment and exhausting virtually all of the programs available to him at Bluewater, Mr. Cosman was assessed as being a low-risk sexual offender and the custodial portion of his sentence was converted to probation that ended in 1994. [ 40 ] Mr.

Cosman then moved around a lot before eventually ending up in Newfoundland where he committed his 1997 offence against the 12-year-old girl for which he received 2 years in prison and 3 years’ probation. As already noted, he served that sentence in the Dorchester penitentiary. [ 41 ] Before entering Dorchester, Mr. Cosman was assessed by the Sex Offender Assessment Team as being a high risk to reoffend and high needs because of his previous sex offence and his inability to explain his high risk factors, despite his reported prior

participation in a sex offender program. The assessment team noted Mr. Cosman underestimated his risk to reoffend and blamed his offending behaviour on his substance abuse and anger towards his father. Mr. Cosman was referred to the Offender Substance Abuse Pre-Release Program (OSAPP) so he could gain an understanding of his substance abuse and develop skills to effectively cope with life stresses without resorting to the abuse of substances.

He was also referred to the High Intensity Sex Offender Program at Dorchester to reduce his risk to reoffend given his current lack of insight into the dynamics of his past sexual offence which he related to his severe intoxicant use at the time of the offence. [ 42 ] Mr. Cosman initially resisted the sex offender program because he was not incarcerated for a sexual offence. He was concerned about institutional stigmatization. He sought a second opinion while at Dorchester and Mr. Vinquist, who served as his institutional parole officer at Dorchester, accommodated his request. There is some suggestion Mr.

Cosman may have been motivated to take the program to avoid being detained until his warrant expiry date as was initially recommended by Mr. Vinquist, but whatever his initial motivation was, the evidence is clear he participated fully in both programs. Mr. Vinquist testified that Mr. Cosman’s positive interim performance report from that program weighed heavily in his decision to reverse his earlier detention recommendation. [ 43 ] Mr. Cosman did not actually complete the sex offender program notwithstanding he had earlier indicated a desire to remain beyond his statutory release date to do so.

Rather, when the release date approached, he changed his mind. Notwithstanding he failed to complete the crime cycle and adaptive coping strategies modules that were designed to prevent relapse, the psychologist who completed his final performance review concluded his risk to reoffend sexually or non-sexually was reduced and within moderate limits, but that could change if Mr. Cosman did not closely monitor and intervene in the presence of risk factors. He recommended Mr.

Cosman take the maintenance program in the community for that reason. [ 44 ] The records show that between his statutory release date and his warrant expiry date, Mr. Cosman reported weekly to his community parole officer and submitted to weekly urinalysis. [ 45 ] The running logs of the period of probation that followed indicate Mr. Cosman attended sex offender maintenance sessions while in the community. Progress reports establish Mr.

Cosman was occasionally resistant to the idea of sex offender maintenance, believing it to be of no benefit to him given his past programming, but after some consultation about the continuing need, Mr. Cosman attended 12 of 13 sessions between March 1999 and November 1999. The running logs from that period also indicate he appeared stable in the community and did well while under supervision. [ 46 ] During the last third of his probation, Mr. Cosman moved to Alberta and Ms. Franklyn accepted a courtesy supervision of Mr. Cosman.

She testified that at that time he was reporting once per month, and according to collateral contacts, Mr. Cosman was working and doing well. He did miss one appointment but called her to report and reschedule before she initiated any breach action. However, before their next scheduled visit, Mr. Cosman was charged with sexual assault causing bodily harm against CM. Ms. Franklyn testified that she continued to supervise him after he was granted judicial interim release through the completion of his probation, and until he was sentenced in June 2003. As before, Mr.

Cosman restablilized and did well under supervision. [ 47 ] The intake assessment that was prepared for Mr. Cosman before he was transferred to the Bowden Institution after his offence against CM assessed him as being at the high end of the medium-high risk to reoffend continuum, given his established pattern of sexual offending. The assessment suggested that Mr. Cosman participate in a more intensive level of intervention to address his sexual deviancy and attend ongoing sex offender maintenance upon his release.

The Criminal Profile report prepared by Robyn Plummer, an experienced institutional parole officer, noted Mr. Cosman’s expanding pattern of criminal behaviour and that his unaddressed needs areas included substance abuse and personal emotional issues. She assessed as high the likelihood Mr. Cosman’s criminal behaviour would continue because of his tendency to minimize his substance abuse issues. The Corrections Plan she prepared for Mr.

Cosman assessed his risk for sexual or violent recidivism as medium to high, and identified a number of treatment target areas, including substance abuse and sexual offending cycle. Ms. Plummer testified that a Corrections Plan is intended to be the road map for the offender’s entire sentence. [ 48 ] She testified that the best program for Mr. Cosman was the Clearwater Sex Offender Program offered at the RPC in Regina. It was an eight month intensive, all-encompassing program meaning the program would not concentrate solely on the priority treatment target, Mr.

Cosman’s sexual deviancy, but his other issues, including substance abuse, would be addressed as well. [ 49 ] Mr. Cosman entered the Clearwater Sex Offender Program where Ms. Brenda Irvine served as his primary therapist. Ms. Irvine also testified at the sentencing hearing. She testified that, as noted in her initial report, Mr. Cosman had significant problems in the areas of interpersonal aggression, emotional control, substance abuse and sexual offending cycle. He had less significant problems in other areas. Like Ms. Plummer, Ms. Irvine confirmed her report that concluded Mr.

Cosman would be assisted in the sex offender program to enrich his comprehension that he has a serious substance abuse problem that fuels his negative emotional state . [ 50 ] She noted all of Mr. Cosman’s offending behaviour was related to drug and alcohol abuse. [ 51 ] Ms. Irvine confirmed her performance review observations that Mr. Cosman was a full and active participant and that he was fully aware of how his substance abuse played a

part in his sex offence cycle. She further noted that Mr. Cosman realized he would require other forms of substance abuse counselling given his dislike of AA. [ 52 ] Mr. Cosman completed the Clearwater Program and Ms. Irvine concluded in her final report that Mr. Cosman identified the need to abstain from alcohol given the strong link between it and his sexual offending. He verbalized his commitment to abstain. Overall, she concluded Mr. Cosman had reduced his risk to reoffend from moderate-high to moderate-low through his participation in the all- encompassing RPC program. [ 53 ] Mr.

Cosman then returned to Bowden where Mr. Massey served as his institutional parole officer. He considered that Mr. Cosman had made sufficient enough gains to reduce his institutional security level to assist his reintegration into the community. [ 54 ] Community supervisors were not as optimistic about Mr. Cosman being released into the community primarily because of the factors listed in the Clearwater Program report that had the potential to increase Mr. Cosman’s risk to reoffend, and because Mr. Cosman had not had an opportunity to demonstrate his reduced risk in the community. Nevertheless, Mr.

Cosman was released on day parole in

April 2006 before his statutory release date. It is evident from the decision of the National Parole Board that Mr. Cosman represented that he had benefitted from the Clearwater Program. [ 55 ] It is equally evident from that same decision that his Case Management team, including Mr. Massey, represented that from their perspective, Mr. Cosman had gained significant insight into his sexual offending and learned new techniques to deal with his negative emotions and feelings. [ 56 ] While being supervised in the community, Mr. Cosman met with his community supervisor, Mr.

Alexander, and with Angela Dwyer, a CSC psychologist at least twice per month. By all accounts he maintained employment and he appeared to be stable and reintegrating well. [ 57 ] The log notes appear to suggest that Mr. Cosman was communicating openly and frequently with Mr. Alexander and with his psychologist. Mr. Alexander testified that he recalled Mr. Cosman as presenting no concerns from a supervisory perspective. He testified he met with Mr. Cosman both in and out of his office and he regularly spoke to his collateral contacts who confirmed Mr. Cosman was doing well. The log notes are consistent with Mr.

Alexander’s testimony in that regard. They reflect that Mr. Cosman’s collateral contacts confirmed he was reintegrating and working long hours. These sources do not indicate he was experiencing any significant issues beyond relationship issues with his wife that he openly discussed with both Dr. Dwyer and with Mr. Alexander. [ 58 ] Mr. Alexander also testified he recommended that Mr. Cosman’s participation in substance abuse and sex offender maintenance programs be cancelled because Mr. Cosman appeared not to be experiencing any issues of concern.

He was working considerable hours, he had a new baby and a new house, and Mr. Alexander did not want to overwhelm him. It is noteworthy that Mr. Cosman appears not to have informed either Mr. Alexander or Dr. Dwyer that he was regularly using marijuana. His ex-wife and his sister testified in the sentencing hearing this was the case. His ex-wife testified that she had been particularly concerned by this development because she did not want Mr. Cosman to get into trouble, but did not inform his parole officer of her concern. Mr.

Cosman’s warrant expiry date was June 19, 2008. [ 59 ] During his clinical interviews with Dr. Haag in preparation of the Dangerous Offender Assessment, Mr. Cosman advised Dr. Haag that in 2010, after six years of sobriety, he began going to bars and started to drink. Dr. Haag notes in his report Mr. Cosman told him that he started to drink because he thought he was missing out and there was no one there to say he could not. Mr. Cosman told Dr. Haag that whenever things go bad in his life he tended to turn to the bottle and in 2010, he simply did not care. [ 60 ] Mr.

Cosman’s sister testified she was very concerned when Mr. Cosman began drinking again and that both she and their father expressed their concern to Mr. Cosman. That was ignored. In clinical interviews with Dr. Haag, Mr. Cosman acknowledged this was true and acknowledged that over time he tends to disregard pro-social counsel of his support group. [ 61 ] With that background, I return to consider whether the Crown has established that Mr. Cosman should be designated a dangerous offender. The first question is whether the index offence is a serious personal injury offence. VI. Analysis A. Did Mr.

Cosman Commit a Serious Personal Injury Offence [ 62 ] As stated in R v Neve , 1999 ABCA 206 at para 44 , 237 AR 201, the predicate offence is the key to opening the dangerous offender designation: If that misconduct is not properly characterized as a “serious personal injury offence”, then the gate remains closed for all purposes . [ 63 ] A “serious personal injury offence” is defined in Criminal Code , s 752: serious personal injury offence means ... (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). Thus, Parliament has explicitly indicated the offence against LR qualifies as a “serious personal injury offence”. [ 64 ] I observe in passing that Mr. Cosman’s misconduct also qualifies for the other branch of the serious personal injury offence definition because the assault is a violent offence and both the trial evidence and the Victim Impact Statement supports the conclusion that Mr. Cosman’s actions caused both physical and severe psychological harm to LR. B.

The Requirements of Criminal Code ss 753(1)(a)(i), 753(1)(a)(ii), and 753(1)(b) [ 65 ] The Crown has argued that Mr.

Cosman meets three of the four alternative bases to satisfy the requirements of Criminal Code , s 753(1) and given that “... the court shall find the offender to be a dangerous offender ...”: s 753(1)(a)(i) : the offender 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 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,

s 753(1)(a)(ii) : the offender 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 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, s 753(1)(

b) 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 [ 66 ] As earlier stated, the Defence concedes the Crown has proved all of the elements in each of these three alternatives and concedes Mr.

Cosman should therefore be designated as a dangerous offender. [ 67 ] I nevertheless do have an obligation to examine this issue. In determining whether the evidence is sufficient for the Crown to meet its burden, and because there is some overlap in what is relevant to the patterns of behaviour in s 753(1)(a)(

i) and (ii), I will consider the elements relevant to those sections together before going on to consider the potential application of s 753(1)(b). [ 68 ] The Alberta Court of Appeal in R v Neve at paras 109-111 provides instructions on what evidence is involved in this inquiry. To be considered relevant, Mr. Cosman’s behaviour must be criminal in nature and must involve some degree of violence, attempted violence, endangerment, or likely endangerment.

The predicate offence must form part of the pattern of conduct and it must also involve some degree of violence, attempted violence, endangerment, or likely endangerment that, with the past conduct, would show a pattern: paras 109-110. [ 69 ] The offender’s pattern of behaviour must be repetitive or persistent and aggressive, and while a single instance of violence will not be sufficient, neither is a lengthy history required. The critical element is whether the facts show a pattern that is based on the similarities in the offender’s behaviour, rather than on the number or specific type of offences: para 111. C.

Criminal Code ss 753(1)(a)(i-ii): Does the Evidence, Including the Predicate Offences, Establish a Pattern of Repetitive or Persistent Aggressive Behaviour? [ 70 ] I accept the evidence establishes beyond a reasonable doubt a pattern of repetitive behaviour and persistent aggressive behaviour that includes the predicate offence of at least sexual assault causing bodily harm. [ 71 ] Further, I agree with the Crown’s submission that Mr. Cosman’s repetitive pattern of behaviour includes a number of stereotypic features: 1.

Highly intrusive behaviour as three out of the four offences occurred in the victims’ homes. 2. All of the offences were violent either because they caused physical or psychological trauma to the victims, or because they violated the victim’s sexual integrity. 3. All the offence scenarios were fuelled by alcohol. 4. Mr. Cosman’s victims were indiscriminate. 5. At least three of his four offences were completely opportunistic. [ 72 ] An aggressive feature of Mr. Cosman’s pattern of repetitive behaviour is that Mr. Cosman isolated his victims in one manner or another.

Once his victims were vulnerable, he aggressed upon them. The predicate offence against LR clearly conforms to that repetitive and persistent aggressive pattern. [ 73 ] Further, there can be no doubt that Mr. Cosman’s pattern of repetitive sexual behaviour demonstrates his recurring failure to restrain his behaviour. [ 74 ] I also agree with the Crown that it has been established beyond a reasonable doubt, based on either pattern, that it is likely Mr.

Cosman will cause death, injury or severe psychological harm to someone in the future, and that his aggressive behaviour shows a substantial degree of indifference respecting the foreseeable consequences to others of his behaviour. [ 75 ] I base my conclusion regarding the likelihood of future harm on: 1. the consistency of Mr. Cosman’s offending behaviour, especially regarding his sexual offences, 2. the evidence regarding Mr.

Cosman’s treatment while incarcerated and the repeated but unsuccessful attempts made to rehabilitate and remediate him, and 3. the uncontradicted evidence of the experts, and in particular, that of Dr. Brown who opined that Mr. Cosman presents a high risk to reoffend sexually and violently, and that if he does, Mr. Cosman will choose a somewhat vulnerable female upon whom he would force a sexual encounter. The evidence is clear that Mr. Cosman caused physical harm to two of his sexual assault victims and severe psychological harm to all but

one of his victims. [ 76 ] Mr. Cosman exhibits a substantial degree of indifference to the foreseeable consequences to other persons, given the circumstances surrounding the commission of each of his offences. More specifically, Mr. Cosman knows the precursors to his offence pattern, particularly alcohol abuse, yet he returns to that activity. [ 77 ] I agree with the Crown that the evidence before the Court supports that Mr. Cosman, absent consent, chose to violate CM in 2002 and LR in 2012 with absolute disregard for the consequences. Prior to each offence, Mr.

Cosman had participated in at least two sexual offender programs and Mr. Cosman himself reported to correctional and parole authorities that he understood what he had done, why he had done it, and that he appreciated he had caused pain to others in the past. Notwithstanding this expressed understanding, Mr. Cosman offended against CM and LR with complete disregard to his violation of their sexual integrity or to the long-term pain he inflicted upon them. [ 78 ] This indifference is most clearly evidenced by his own description of his motivation toward CM. Mr. Cosman told Dr.

Haag that CM said, “No” but because Mr. Cosman thought he was entitled, he did not care. He stated that at the time, he thought, “I can do whatever I want”. During a 2003 psychological assessment where Mr. Cosman discussed this assault, Mr. Cosman told the assessor that despite CM’s protests, Mr. Cosman did not stop. He stated the thought going through his mind was that he had come this far and he was not stopping now. He also stated in that same assessment interview that CM appeared scared and pleaded with him not to do this. Mr.

Cosman indicated he was not paying attention to CM’s state of mind but rather only on himself “getting off”. It is also evidenced by his discussion with Dr. Haag regarding the index offence against LR. Mr. Cosman told Dr. Haag that while he knew his actions violated the Criminal Code , he did not consider it right that he was held to that standard. He told Dr. Haag he understood there needed to be a clear yes or no to sexual activity, but not everybody knew what the rule book said. Mr. Cosman told Dr. Haag that he believed he was being asked to live a square life and follow the rules. Dr.

Haag testified that it was clear to him that Mr. Cosman understood the rules, but believed they did not or should not apply to him even after undergoing intensive sexual offender programming. [ 79 ] In conclusion, I am satisfied the Crown has met its burden under s 753(1)(a) (

i) and( ii) to demonstrate that Mr. Cosman constitutes a threat to the life, safety or physical or mental wellbeing of other persons. D. Criminal Code ss 753(1)(b): Does the Evidence, Including the Predicate Offences, Establish a Failure to Control Sexual Impulses that is Likely to Cause Injury, Pain, or Other Evil? [ 80 ] I will now consider whether the Crown has met its alternative burden under Criminal Code , s 753(1)(b). To meet this test the Court will be guided by its analysis of the facts surrounding the predicate offence and all relevant offences Mr. Cosman has committed in the past.

Further, psychiatric evidence will generally be relevant to questions of past inability to control sexual impulses and to the likelihood of injury, pain or other evil resulting from the offender’s ongoing failure to control such impulses. [ 81 ] While the Crown must establish the past inability beyond a reasonable doubt, it must only establish that Mr.

Cosman, based on his past conduct, will probably cause injury, pain or other evil to others in the future (see R v McDowell , 2002 ABPC 199 at paras 36-38 , 333 AR 1; aff’d 2005 ABCA 65 , 373 AR 109). [ 82 ] Much of the earlier discussion regarding pattern of behaviour and future risk is relevant to evaluate whether the Crown meets the requirements set out in s 753(1)(

b) and, again, there is no doubt on the evidence that the Crown has done so. [ 83 ] Based on the earlier discussion regarding Mr. Cosman’s sexual offences, it is well established that Mr. Cosman has in the past demonstrated a failure to control sexual impulses. Mr. Cosman did not plan to sexually assault any of his sexual assault victims, but in each case he failed to control his sexual impulses when he found himself in a position of power and control over his victim. On that basis alone, there can be no doubt the Crown has established Mr.

Cosman’s past failure beyond a reasonable doubt. [ 84 ] I agree with the Crown the evidence also establishes beyond a reasonable doubt that Mr. Cosman will likely fail to control his sexual impulses in the future and will likely cause injury, pain or other evil to other persons in the result. In reaching this conclusion, I rely primarily on the uncontradicted expert evidence of Dr. Haag and Dr. Brown, who agree that Mr. Cosman presents a high risk to reoffend sexually. [ 85 ] In his report, Dr. Haag observed that Mr.

Cosman: Is a high-risk sexual offender that has demonstrated a repeated inability to control his sexual impulses and demonstrated that he can be quite sexually indiscriminate . Dr. Brown observed that Mr. Cosman’s sexual offences have involved physical coercion and a significant degree of intrusion, by which he meant intrusion on the victim’s sexual integrity. Further, Dr. Brown opined that in the event of sexual recidivism, it is most likely that Mr.

Cosman would choose a somewhat vulnerable adult female victim upon whom he would force a sexual encounter. [ 86 ] I therefore conclude that while the Crown has established the s 753(1)(a)(

i) and (ii) criteria, there is even more evidence to also satisfy the requirements of s 753(1)(b). Accordingly, the Court has no discretion and must designate Mr. Cosman a dangerous offender. E. A Fit and Proper Sentence [ 87 ] Once an offender is designated as dangerous, the Court must determine a fit and proper sentence. Criminal Code , s 753(4.1) dictates that sentence will be indefinite incarceration unless one of the lesser sentences stipulated in s 753(4)(

b) or (

c) will provide adequate protection from future misconduct by the offender. [ 88 ] Because this is a sentencing hearing, the principles of sentencing in ss 718, 718.1 and 718.2 still apply, but the paramount

consideration is the protection of the public against the offender’s risk to reoffend. [ 89 ] The Court in R v Walsh , 2011 BCSC 1911 at para 286 , 112 WCB (2d) 388 defined reasonable expectation as “a confident belief, for good and sufficient reasons” to be derived from the quality and cogency of the evidence heard on the application. [ 90 ] Extrapolating from the consideration of the former reasonable possibility test discussed in R v Goforth , 2007 SKCA 144 at para 54 , 302 Sask R 265, a reasonable expectation that a lesser measure will adequately protect the public must be based on more than the hope or the possibility that the offender might eventually be managed in the community. [ 91 ] In considering whether a lesser measure will adequately protect the public, the Saskatchewan Court of Appeal in R v Bird , 2015 SKCA 134 , concluded that the dangerous offender provisions are not concerned with the offender’s likely manageability while he is intensely supervised, but rather while he is not intensely supervised. [ 92 ] Whether or not the threat posed by the offender can be reduced to an acceptable level necessarily raises the question of treatment.

The Court does not have to be satisfied the offender will be cured through treatment, but only that the risk he poses will be adequately contained within the limits of the lesser measure. 1. The Parties’ Positions a. The Offender [ 93 ] With those principles in mind, I will outline the parties’ positions. [ 94 ] The Defence concedes it would not be appropriate to simply sentence Mr. Cosman for the index offences as provided for in s 753(4)(c), but submits that an appropriate determinate sentence followed by an LTSO in accordance with s 753(4)(

b) would adequately protect the public. The Defence submits that a fit and proper sentence on Count 1, sexual assault causing bodily harm against LR, is 14 years followed by an LTSO for 10 years. Counsel further proposes a sentence of 2 years on each of Counts 2 and 3 concurrent to each other but consecutive to Count 1. [ 95 ] The total proposed sentence is therefore 26 years. [ 96 ] Counsel submits that Mr. Cosman would only be entitled to 1-for-1 credit for his pre-trial custody which would reduce his sentence by 4 years, leaving Mr.

Cosman with 12 years to serve before being subjected to the LTSO. [ 97 ] Accordingly, Mr. Cosman would be 62 years old before his supervision would end. The expert evidence indicated his risk to reoffend would be reduced after age 60 to that of the average Canadian sex offender, and the Defence argues that, assuming Mr. Cosman participated in appropriate programming while incarcerated, any risk to the public could be adequately managed in the community at that point. [ 98 ] Counsel submits that notwithstanding alcohol abuse was identified as a significant factor contributing to Mr.

Cosman’s criminal behaviour at the beginning of every period of incarceration, he was not referred to the National Substance Abuse Program during his period of incarceration at Bowden beginning in 2003. I took counsel to imply that such programming would be addressed during the proposed determinate sentence and accordingly, the risk that Mr. Cosman’s substance abuse currently poses as identified by Dr. Haag and Dr. Brown would be more effectively minimized during the determinate sentence that is proposed than it was during his previous incarceration.

That argument ignores Robyn Plummer’s testimony that the Clearwater Program was an all-encompassing program that would have addressed Mr. Cosman’s substance abuse issues and Dr. Brown’s testimony that Mr. Cosman’s programming was adequate to address his needs. b. The Crown [ 99 ] The Crown argues that if Mr. Cosman were to be sentenced on Count 1 of the Indictment before the Court, sexual assault causing bodily harm, a fit and proper sentence given the circumstances of the offence and of the offender, and taking into account the aggravating and mitigating factors, would be between 8 to 12 years.

In addition, the Crown argues that Mr. Cosman should be sentenced to 1 year on each of the Count 2 and 3 sexual assault charges against AN, concurrent to each other but consecutive to Count 1. [ 100 ] Mr. Cosman would also be entitled to at least 1 for 1 credit for his pre-trial custody of 4 years, leaving him a 5 to 9 year custodial sentence. [ 101 ] The Crown argues that if that sentence were imposed, even after completing a 10-year LTSO, Mr. Cosman would be between 55 and 59 years old when he is at his highest risk to reoffend relative to other Canadian sex offenders. 2.

Sentences for Counts 1, 2, and 3 [ 102 ] On the evidence before me, I reject Defence counsel’s argument that Mr. Cosman’s assault on LR would attract the maximum sentence permitted under Criminal Code , s 272, 14 years.

While maximum sentences are not reserved for “the worst offender, worst offence” ( R v Solowan , 2008 SCC 62 , [2008] 3 SCR 309), applying all the appropriate sentencing considerations, and particularly the principle of proportionality in s 718.1, leads me to agree with the Crown; a lower but substantial sentence is appropriate. [ 103 ] Similarly, I reject that 2 years is an appropriate sentence for the Counts 2 and 3 sexual assault convictions on AN. [ 104 ] I also reject Defence counsel’s argument that a lesser measure would adequately protect the public against Mr.

Cosman’s risk to reoffend in a similar manner.

[ 105 ] I therefore conclude, that given the circumstances of the offence and of the offender, and the aggravating and mitigating circumstances, I conclude that a fit and proper sentence, if determinate, would be 8 years on Count 1 and 1 year on each of Counts 2 and 3, concurrent with each other but consecutive to Count 1. [ 106 ] A sentence of 8 years takes into account that Mr. Cosman continues to have a supportive family, his only significant mitigating circumstance.

It also accounts for the greater number of aggravating circumstances: • each of the offences was alcohol fuelled; • the offences were committed in a home in which Mr. Cosman was an invited guest; • both LR and AN were highly vulnerable, each was sleeping or trying to sleep; and • the anal and vaginal penetration in Count 1 renders that offence a major sexual assault. [ 107 ] Counts 2 and 3 were no more than sexual touching and are properly characterized as minor. I also take Mr.

Cosman’s related record into account, as well as the fact that he was sentenced to 5 years for his most recent offence of sexual assault causing bodily harm, which involved penile vaginal penetration, forced fellatio, vaginal lacerations, and severe psychological harm. Mr. Cosman was also on probation when he committed that offence. 3. Is Indefinite Detention Appropriate? [ 108 ] The Crown argues, and I agree, that the appropriate determinate sentence would mean that Mr.

Cosman would be released into the community without supervision when he is 55 years old and at his highest relative risk to reoffend. [ 109 ] In reaching this conclusion, I place considerable weight on the unchallenged evidence of the experts, Dr. Brown and Dr. Haag. These experts each spent several hours interviewing Mr. Cosman and reviewed his complete incarceration and programming history. They used appropriate assessment tools that I accept were designed to present the fairest picture of Mr.

Cosman’s present and future risk, and they testified in an objective and professional manner, giving the benefit of the doubt to Mr. Cosman wherever appropriate. [ 110 ] Dr. Haag opined that Mr. Cosman’s risk would not be manageable in the community if correctional supervision were ever removed because of Mr. Cosman’s past behaviour and the apparent absence of identifiable gains from the programming he has received to date. Dr. Haag opined that without supervision, Mr. Cosman’s history suggests that in time, Mr. Cosman will return to intoxicant abuse and ultimately, will reoffend. [ 111 ] Dr.

Brown’s opinion regarding Mr. Cosman’s severe Substance Abuse Disorder leads to the same result though he did not specifically testify regarding what would happen if Mr. Cosman were ever in the community without supervision. [ 112 ] In his testimony and report, Dr. Brown stated that alcohol disinhibits Mr. Cosman such that criminal behaviour is much more likely, and victim suffering does not inhibit Mr. Cosman at all when he is in pursuit of sexual gratification. Dr. Brown further states that Mr. Cosman is a heightened risk to relapse into substance abuse, particularly alcohol, and Mr.

Cosman’s unwillingness to acknowledge his weakness in that area makes him unwilling to seek out sources of support in that area. Dr. Brown concluded that given Mr. Cosman’s severe Alcohol Use Disorder and his typical pattern of relapse and remission, it is unlikely that an unsupervised Mr. Cosman will enter a stable state and not engage in substance abuse. Most significantly, Dr. Brown opines that it is most likely Mr. Cosman would only participate in substance abuse treatment if he were mandated to do so. [ 113 ] Dr. Brown also opines that Mr.

Cosman has a moderately higher sex drive than similarly aged men and poses a risk to reoffend sexually that is twice that of the average Canadian sex offender. He further concluded that if Mr. Cosman reoffends, he will most likely target a vulnerable adult female upon whom he would force a sexual encounter. Dr. Brown testified that Mr. Cosman’s sex drive, along with his interpersonal and emotional personality traits that contribute to a diagnosis of an antisocial personality disorder, allow Mr. Cosman to violate the rights of others without regard for the emotional wellbeing of his victims. [ 114 ] Dr.

Brown concluded that the programming Mr. Cosman has already received was adequate to address his needs. Further, he testified that, as noted in his report, Mr. Cosman participated in more than one sex offender program and completed the high intensity sex offender program at RPC while serving his 2003 sentence. [ 115 ] Both Dr. Haag and Dr. Brown agree that further sex offender treatment would not likely reduce Mr.

Cosman’s considerable risk to inflict serious physical injury on particularly vulnerable victims that he would find opportunistically. [ 116 ] Based on all of the evidence before the Court, I am satisfied there is no reasonable expectation that any sentence other than an indeterminate one will adequately protect the public against the risk that Mr. Cosman will reoffend in the future. Despite completing all recommended programming, both intensive and targeted to his identified needs, and despite his own perception that he benefitted from that programming, Mr.

Cosman reoffended within 2 years of returning to alcohol use. [ 117 ] Accordingly, I designate Mr. Cosman as dangerous and impose an indeterminate term of imprisonment on Count 1. [ 118 ] I further sentence Mr. Cosman to 1 year on each of Counts 2 and 3 to be served concurrently with Count 1. [ 119 ] I also impose a Criminal Code , s 109 lifetime weapons prohibition on Count 1, a lifetime SOIRA Order on all Counts, and a DNA Order on all Counts.

The Defence concedes these Corollary Orders are appropriate. [ 120 ] Finally, I direct that a copy of these reasons, along with the evidence in this sentencing hearing, and particularly the reports and testimony of Dr. Brown and Dr. Haag, should be made available to the National Parole Board in the event it is called upon to consider Mr. Cosman’s release into the community.

Heard February 1 st to 18 th , 2016. Dated at the City of Edmonton, Alberta this 22 nd day of March, 2016. M.G. Crighton J.C.Q.B.A. Appearances: Laura Marr Special Prosecutions for the Crown Nicole Sissons Barrister & Solicitor for the Accused