R v Leach, 2021 ABQB 61

Court of Queen’s Bench of Alberta Citation: R v Leach, 2021 ABQB 61 Date: Docket: 171148745Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Jonathan Leach Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice N. Dilts _______________________________________________________ 1. Introduction

[1] Jonathan Leach is 30 years old and is before me having plead guilty to the sexual assault of a 7-year-old girl in Calgary,Alberta. The index offence, as it is called, occurred in August 2017. Mr. Leach has been incarcerated since that time. [2] The issue I am to decide is whether Mr. Leach should be designated as a dangerous offender and, if so, the appropriatesentence to be imposed. Mr. Leach is a diagnosed pedophile with deep-seated personality traits that lead to his criminal behaviour. Hehas inadequate social skills resulting in social isolation and withdrawal.

That isolation gives rise to feelings of rejection, anger andresentment. He lacks the desire or ability to constructively deal with the resulting stresses he experiences. When overlain with hisattraction to female children and a need to assert dominance and control, Mr. Leach turns to sex, particularly against young victims, as apathological coping strategy. These factors together lead to his violent offending behaviour. [3] In addition to the index offence, Mr. Leach has three prior convictions for sexual assault against very young female children,two from 2005 and a third from 2011.

His victims range in age from 3 to 7 years old. Since 2005, Mr. Leach has spent a significantportion of his life incarcerated, or on probation and subject to strict conditions of release including residency and reporting. He hasparticipated in the most intense forms of sex offender treatment available in Canada both while incarcerated and while in the community,and has received extensive one-on-one therapy. [4] At the time of the index offence, Mr. Leach had completed his period of parole for his third offence and was subject to apeace bond issued under s. 810.1 of the Criminal Code, RSC 1985, c.

C-46 [Criminal Code]. That peace bond contained a number ofconditions designed to manage his re-integration into the community and to provide safeguards to protect the public. Mr. Leach waswearing an electronic monitoring device, was being supervised by the Calgary Police Service High Risk Offender Program (“HROP”),was attending community-based sex offender programming in Calgary through Forensic Assessment Out-Patient Services (“FAOS”), andwas participating in Circles of Support and Accountability (“CoSA”), a sex offender support group whose mandate is to reduce the riskof future sexual violence.

Through these various channels, Mr. Leach had access to resources 24-hours a day to help prevent hisreoffending. Despite those protective and preventative measures, Mr. Leach reoffended, sexually assaulting the 7-year-old child in theback alley of her neighborhood. [5] Following Mr. Leach’s guilty plea, the Crown made an application to have Mr. Leach designated as a dangerous offender.Both by admission and by statutory definition, the index offence of sexual assault is a “serious personal injury offence” as defined in s.752(

a) of the Criminal Code providing entry into the dangerous offender regime. The Crown met all of the statutory preconditions tomake its application. It provided Mr. Leach with the required notice, obtained the consent of the Attorney General, and filed anassessment report (see sections 752.01, 753(1), 753(2), and 754(1) of the Criminal Code). [6] The Crown urges that I find Mr. Leach to be a dangerous offender and impose a sentence of indeterminate detention in apenitentiary. It argues that the statutory elements in s. 753(1)(a)(i), (ii) and (iii) are each made out on the evidence before me.

TheCrown argues that Mr. Leach’s offending is a consequence not only of sexual deviance but of his pathological makeup. It takes theposition that the only way the public can adequately be protected from the risk of Mr. Leach’s violent offending is by an indefiniteperiod of incarceration. [7] The Crown argues that an indefinite sentence would not leave Mr. Leach without hope: if Mr. Leach is motivated andsuccessful in reducing his risk of reoffending, he has the possibility of achieving a lower security classification in prison, and evenparole.

However, the responsibility for any reassessment of his risk will be in the hands of the National Parole Board whose mandate isthe protection of the public. [8] Counsel for Mr. Leach does not argue against Mr. Leach being designated a dangerous offender, but argues that aconventional sentence of 9 years accompanied by a 10-year long-term supervision order will adequately protect the public. Counsel forMr. Leach argues that Mr. Leach has demonstrated his ability to be in the community without reoffending as long as he is in a highlystructured and supervised environment.

As a result, he argues that a long-term supervision order with strict conditions that eliminate ormitigate the stressors that trigger Mr. Leach’s offending cycle will provide adequate protection for the public. [9] In reaching my decision, I have considered Mr. Leach’s complex personality, his offending history, his corrections records,and the psychiatric and psychological evidence. My challenge is to make a present determination of Mr. Leach’s future risk ofreoffending: R v Lyons, (SCC), [1987] 2 SCR 309 at para 27; R v Currie, (SCC), [1997] 2 SCR 260 at274.

While I am assisted greatly by the expert evidence of both Dr. Yuri Metelista, Forensic Psychiatrist, and Ms. Deena Nessman,Forensic Psychologist, both of whom assessed Mr. Leach at the Southern Alberta Forensic Psychiatry Centre (“SAFPC”) and gaveevidence at this hearing, whether Mr. Leach is a dangerous offender is not a psychiatric or psychosocial determination, but one anchoredin the principles of Canadian criminal law: R v Neve, 1999 ABCA 206 at para 199.

It is governed by s. 753 of the Criminal Code, by thesentencing principles in s. 718 of the Criminal Code, and by the sophisticated case law that has developed in the area. [10] For the reasons that follow, I find that Mr. Leach meets the criteria to be designated a dangerous offender under s. 753(1)(a)(i)of the Criminal Code. I therefore restrict my comments to that subsection of the Criminal Code. 2. The Dangerous Offender Framework [11]

Section 753 of the Criminal Code sets out a two-staged process to determine whether an offender is a dangerous offender.Section 753 reads: 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find theoffender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of thedefinition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being ofother 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; […]

(2) An application under subsection (1) must be made before sentence is imposed on the offender unless (

a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under

section 752.1 and an application under subsection (1) not later than six months after that imposition; and (

b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim. […]

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. […]

(5) If the court does not find an offender to be a dangerous offender: (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. [ 12 ] The first stage of the dangerous offender hearing is to determine whether the offender should be designated as a dangerous offender (the “designation stage”). If the Crown is successful in proving the statutory criteria for designation as a dangerous offender, the court has no discretion - under s. 753(1), it must designate the offender as a dangerous offender. [ 13 ] The designation stage includes what the Supreme Court of Canada has said is both an objective element and a subjective element.

The objective element is whether the index offence is a serious personal injury offence as defined in s. 752 . The subjective element is the threat presented by the offender.

Under s. 753(1)(a)(i), that threat assessment is made up of three elements: first, whether the index offence is part of a broader pattern of violence; second, whether there is a high likelihood that the violent conduct will continue; and third, whether the violent conduct is “substantially or pathologically” intractable: Lyons at para 43 ; R v Boutilier, 2017 SCC 64 at para 26 . [ 14 ] While the Crown bears the onus of proving the statutory criteria in s. 753(1)(a)(

i) beyond a reasonable doubt, it need not prove beyond a reasonable doubt that the offender will reoffend: Lyons at paras 94-95 .

Rather, the Crown must prove beyond a reasonable doubt that there is a likelihood that in the future the offender will cause injury or inflict severe psychological damage on other persons: Neve at para 115 . [ 15 ] Given the implications that follow from a dangerous offender designation, it is imperative that the criteria at the designation stage be applied rigorously: Boutilier at para 77 . [ 16 ] In the second stage of the dangerous offender hearing (the “penalty stage”), the court is concerned with imposing the appropriate sentence to manage the established threat.

Fundamentally, a dangerous offender hearing is a sentencing hearing: Boutilier at para 53 . As such, the general principles of sentencing found in s. 718 of the Criminal Code are relevant to determining a fit and appropriate sentence: R v Paxton , 2013 ABQB 750 at para 31 [ Paxton QB ], aff’d 2018 ABCA 386 [ Paxton CA ].

However, while the fundamental principles of sentencing found in sections 718 , 718.1, and 718.2 are relevant in a dangerous offender hearing, Parliament has exercised its authority to place the protection of the public ahead of any other sentencing principle: R v Warawa , 2011 ABCA 294 at para 40 . Therefore, while the objectives of denunciation, rehabilitation, deterrence and retribution remain relevant factors in dangerous offender proceedings, prevention ranks ahead of all other sentencing factors: Lyons at para 27 .

[17] The court maintains discretion to determine the appropriate sentence for the offender and must only impose an indeterminatesentence if it is the least restrictive means to reduce the threat posed by the offender: Paxton CA at para 17. However, the court mustimpose an indeterminate sentence unless it is satisfied that there is a reasonable expectation that a lesser sentence will adequately protectthe public.

A reasonable expectation means a belief that something will happen, rather than a belief that something may happen: R vOsborne (CG), 2014 MBCA 73 at paras 73-74; R v DJS, 2015 BCCA 111 at para 30; R v Bunn, 2014 SKCA 112 at paras 36-38. Itspeaks to the level of confidence the court has that the public will be adequately protected by the sentence imposed. 3. The Evidence [18] The case law is clear that the court is to receive the widest possible range of information to determine whether the offenderpresents a risk to public safety: R v Jones, (SCC), [1994] 2 SCR 229 at para 128.

There are generally three types ofevidence that will be considered in a dangerous offender hearing – the offender’s past criminal acts and criminal records; extrinsicevidence relevant to those past acts and the circumstances surrounding them; and psychiatric reports opining as to the offender’s conduct:Neve at para 123. All of the evidence adduced during a dangerous offender hearing must be considered by the court at both stages of thedangerous offender analysis, although the court makes different findings in relation to different legal criteria at each stage: Boutilier atpara 44. [19] At Mr.

Leach’s hearing, a significant number of records and reports were admitted for the truth of their contents without thenecessity of calling the makers of those records. Much of that evidence addresses Mr. Leach’s history, including his offending,incarceration, programming and treatment history. Those records include previous risk assessments, some of which will be discussedlater in these reasons. [20] In addition, I heard evidence from four lay witness, three of whom had direct involvement with Mr. Leach: Ms.

Kathy Luft,Correctional Program Officer at the Bowden Institution (“Bowden”), Constable Mathew Tait, Calgary Police Service and formerly withHROP, and Mr. Brent Valstar, Corrections Service Canada (“Corrections Canada”) Parole Officer. They provided additional insight intoMr. Leach’s personality and the programs, services, treatment and oversight Mr. Leach received, particularly from January 2012 onward.Mr. Blair MacGregor, Acting Assistant Warden, Intervention at Bowden, also testified. He had no personal experience with Mr.

Leachbut explained the programs, facilities and opportunities for inmates at Bowden, particularly for those designated as dangerous offenders. [21] Collectively, these witnesses explained the services and programs available to sex offenders both in federal penal institutionsand within the community. It is worthy of note that the treatment and programming offered to a sex offender while an inmate or onparole, including the National High Intensity Sex Offender Program and the National Maintenance Sex Offender Program, is deliveredby Corrections Canada.

Once released from parole, a sex offender may be engaged in a collaborative network of treatment, oversight andsupport through FAOS, HROP and CoSA. [22] In addition to the lay witnesses, I received expert testimony from Ms. Nessman. By agreement, Ms. Nessman was qualified togive evidence as an expert in the area of forensic psychology. Ms. Nessman’s work has included the completion of offender riskassessments since 2001. She has previously been qualified to give expert opinion evidence before this court and the Provincial Court ofAlberta. [23] I also received expert testimony from Dr. Metelista. By agreement, Dr.

Metelista was qualified to give evidence as an expertin the area of forensic psychiatry. His curriculum vitae details his extensive experience in the clinical and academic realm of forensicpsychiatry from 1974 onward. He has been a psychiatrist in the Forensic Psychiatry Division of SAFPC since 2004 and has previouslybeen qualified to give expert opinion evidence before this court. [24] No victim impact statements were tendered. [25] Mr. Leach did not present any evidence. A. Mr. Leach’s Personal History [26] Mr. Leach’s personal background is available through a review of the exhibits. Very briefly, Mr.

Leach was primarily raisedby his mother and step-father, his mother and father having separated shortly after his birth. Mr. Leach visited his father’s home twoweekends per month while growing up. Although Mr. Leach has an older brother and a maternal half-sister, both of his siblings movedout of their mother’s home early in Mr. Leach’s childhood and have no relationship with Mr. Leach. [27] Mr. Leach’s childhood was marked by isolation, anger and acting out. Mr. Leach reported being bullied as a child and feelingconfused by his loneliness, resulting in feelings of anger and frustration.

He was described by his parents as quick tempered, tough tohandle, and difficult to motivate. Mr. Leach reported to Dr. Metelista that he has deep-seated anger and began acting out in grade twoboth at school and at home. When he was approximately 10 or 11 years old, Mr. Leach attempted to set fire in his father’s basement; healso began stealing, fought with his brother, lied to escape consequences, engaged in conflict at school, and defied rules. During hisadolescence, Mr.

Leach was noted to have difficulty making and maintaining friends, resulting in a tendency to associate with youngerchildren. [28] Currently, Mr. Leach has very limited contact with his parents. The contact that does occur is mostly by telephone with veryinfrequent in person visits. When previously released from custody, Mr. Leach’s family provided no support or structure to assist him inreintegrating into the community or to help prevent his reoffending.

I am satisfied that for the purposes of this sentencing hearing, Mr.Leach’s family will have no material presence in his life, nor will they provide structure or support in an effort to prevent Mr. Leachfrom reoffending should he attain release. B. Mr. Leach’s Offending and Treatment History

[ 29 ] Mr. Leach’s offending history dates back to February 2004 with the sexual assault of a 3-year-old girl at her home. Mr. Leach was then 13 years old. Mr. Leach, who was in the child’s home by invitation, went downstairs to play with her. While in the basement, Mr. Leach pulled down her pants and underwear and ran his hand across her vagina and buttocks. When the child began to cry, he pulled up her pants and they went upstairs. Mr. Leach told the child’s mother that the child had fallen off a small slide. Despite Mr.

Leach admitting to the sexual assault shortly after the incident, charges were not laid until October 2004. Mr. Leach plead guilty to sexual assault on March 9, 2005. He was sentenced to six months deferred custody, community supervision, and18 months’ probation. [ 30 ] Mr. Leach’s second offence occurred on April 16, 2005 when he sexually assaulted a 5-year-old girl. At the time of that offence, Mr. Leach was on probation for his first offence. He was convicted of breaching his conditional sentence in May 2005 and of sexual assault in September 2005.

For the latter, he was sentenced in adult court to three years custody, with ancillary orders regarding the Sex Offender Information Registration Act, SC 2004, c. 10 [ SOIRA ] and DNA. At the time of the second offence, Mr. Leach was 15 years old. [ 31 ] The sexual assault occurred at a school on a weekend. The child had accompanied her father, a teacher, to the school. Mr. Leach pulled the child into a secluded area and told her to undress. When she refused, he hit her head against the concrete wall. Mr.

Leach then removed all of her clothes, touched her vagina and buttocks with his hands, and demanded that she perform oral sex on him. When she refused, he choked her until she became dizzy and again banged her head against the wall. Mr. Leach sexually assaulted the child while laying on top of her. He also forced her to perform oral sex on him. The assault ended when an adult heard the child’s cries. Mr. Leach was apprehended shortly following. [ 32 ] Mr. Leach was sentenced to a custodial sentence in the Edmonton Young Offender Centre (“EYOC”) and underwent psychological testing and assessment by Dr.

George Pugh, Consultant Psychologist. Dr. Pugh identified Mr. Leach’s problematic personality characteristics, describing Mr. Leach as immature, self-centered, socially isolated, with poor impulse control, and lacking in social skills, particularly with similarly aged peers. Dr.

Pugh concluded that: Jonathan’s own statements that he fears he will re-offend without treatment, the impulsive nature of both his sexual crimes, the increasing violence in his sexual offending and his inability to offer an explanation for what motivated his behavior (a significant lack of insight) suggest that, at the present time, he is a dangerous offender with a high probability to re-offend if not treated. ( Exhibit 2 Tab 19 ) Dr. Pugh indicated that Mr. Leach met the criteria to be diagnosed with pedophilia, but that the diagnosis was not available given Mr. Leach’s young age. [ 33 ] Dr.

Pugh recommended that Mr. Leach participate in a sex offender treatment program through the EYOC, offered as group therapy twice per week. In addition, Mr. Leach participated in individual therapy sessions every two weeks first with Dr. Pugh ( Exhibit 2 Tab 12 ) and then with Mr. Michael Lee, Psychologist at the Calgary Young Offenders Centre. This therapy addressed Mr. Leach’s offending cycle by identifying his triggers, including anger, rejection, and self-pity. It also included cognitive behaviour therapy for thought intervention to disrupt Mr.

Leach’s deviant and distorted thoughts ( Exhibit 2 Tab 28 ). [ 34 ] In December 2006, Mr. Lee referred Mr. Leach to Dr. John Naylor, Consulting Psychiatrist, Forensic Adolescent Program at FAOS, for psychiatric assessment. At that time, Mr. Leach was 22 months into his custodial sentence. Dr.

Naylor made the following observations: Jonathan Leach is a sixteen year old boy who presents with a history of repetitive sexual offending, social withdrawal and isolation, persecution, reactive anger and aggression as well as inattention. … From a psycho-social perspective, the patient has experienced: abuse, abandonment, school failure, social isolation and persecution.

These experiences may have interacted with temperamental characteristics such as poor anger control and low frustration tolerance to predispose the patient to chronic low self esteem, feelings of loss of control and a high rejection sensitivity. His “zoning out” appears to be an active and passive event, and likely an extension of his established pattern of withdrawal and avoidance from uncomfortable social situations. He admits that he has not really accepted responsibility for his actions and has not addressed the thinking that set him up for his offences. ( Exhibit 2 Tab 23 ) Dr.

Naylor concluded (amongst other things) that Mr. Leach’s prognosis depended on his ability to invest in a treatment program. [ 35 ] Mr. Leach achieved statutory release for his second offence on September 21, 2007. He was released on strict conditions including that he reside at Bedford House in Calgary, a community residential facility most frequently used to house sex offenders. Bedford House was considered an appropriate placement as it provides intensive support and monitoring by staff experienced in working with sex offenders.

A community supervision plan was developed by Corrections Canada that included one-on-one sex offender therapy with Mr. Darren Balsom, Sex Offender Therapist with Southern Alberta District Parole. Within that community supervision plan, Mr. Leach was described as a “high risk and high needs young offender” requiring the “highest level of intervention and monitoring possible to reduce his risk in the community” ( Exhibit 2 Tab 26 ). Given Mr.

Leach’s age both at the time of the offence (15) and his statutory release (17), he was considered too young to participate in the National Sex Offender Program. [ 36 ] As Mr. Leach’s second offence included physical violence as well as sexual violence, the observations following that incident highlight the increased anger in his offending and his need for dominance ( Exhibit 2 Tab 25 ). Despite early denials by Mr. Leach of pedophilic or rape fantasies, Mr. Leach admitted to Mr.

Balsom, that he relied on violent and domination fantasies when stressed or upset to make himself feel better and to give himself a sense of control. He also admitted to masturbating to sexual, violent, and angry thoughts prior to offending. His therapy included an evaluation of his use of deviant fantasies and the identification of anger and its progression and escalation as risk factors in his offending ( Exhibit 2 Tab 30 ). One of the goals of Mr. Leach’s sessions with Mr. Balsom was to develop positive coping skills. In addition, Mr.

Leach had access to programs and resources, including those at Bedford House, to assist him with developing life skills and with his reintegration into the community. [ 37 ] Mr. Leach’s statutory release was briefly suspended in May 2008 after he was assaulted in the community by someone who knew his offending history. In June 2008, a correctional plan progress report was prepared in advance of Mr. Leach’s warrant expiry. It contained the observation that Mr. Leach’s only source of support was from people and programs available through Corrections Canada and CoSA.

As a result, his release plan was designed to ensure that Mr. Leach had access to similar supports within the community

( Exhibit 2 Tab 27 ). [ 38 ] Therefore, on his warrant expiry on September 19, 2008, Mr. Leach was referred to FAOS for community-based therapy under the oversight of Dr. Cynthia Baxter, Psychiatrist. In her report dated September 25, 2008, Dr. Baxter noted that: Mr. Leach is an 18-year-old single male previously described as having poor life skills, significant anger management issues, and a lack of healthy coping skills. He grew up relatively isolated, was bullied, and video games were a prominent focus for him. Previously he has used violent fantasies to cope with stress.

At age 15, he committed two sexual assaults against two 5-year-old females [ sic ]. He has received mental health/sex offender treatment in the last three years and requires ongoing community management at this time. ( Exhibit 6 ) She referred Mr. Leach to Mr. Lee for therapy as Mr. Lee had worked with Mr. Leach previously. She noted that Mr. Leach required pro-social relationship building and needed to develop daily living skills and stress management skills. [ 39 ] Dr. Baxter and Mr. Lee’s involvement with Mr. Leach post warrant expiry was very limited. Mr. Leach saw Dr. Baxter only once and Mr.

Lee twice between September and November 2008 before abandoning treatment. In that period, staff from Mr. Leach’s residential facility reported concerns that Mr. Leach displayed sexually inappropriate behaviour and anger. By late November 2008, Mr. Leach was described as a “treatment drop out” ( Exhibit 6 ). [ 40 ] Mr. Leach’s next offence occurred on September 19, 2011 when he sexually assaulted a 4-year-old girl who had been left in the care of his former girlfriend. Mr. Leach was then 21 years old. While his former girlfriend was napping in the apartment, Mr.

Leach sexually assaulted the child by having her suck on his penis, and by touching her vagina with his fingers. The child reported the sexual assault to her family. Mr. Leach was convicted of sexual assault and was sentenced on January 19, 2012 to five years in custody and other ancillary orders. At that time, he was already in custody for failing to report under SOIRA . [ 41 ] On May 9, 2012, Mr. Leach was assessed by Mr. Ford Cranwell, Chief Psychologist at the Grande Cache Institution. Mr. Cranwell noted that anger, violence and control were present in Mr. Leach’s second offence.

He also noted that the fact that Mr. Leach overcame resistance by brutal violence and was able to sexually assault his victim suggested deviant arousal. With respect to Mr. Leach’s third offence, Mr. Cranwell noted the presence of coercion in Mr. Leach’s offending by using the fact that he was an adult to compel the child to act ( Exhibit 2 Tab 39 ). Mr. Cranwell made a positive diagnosis of pedophilia. [ 42 ] In August 2012, Mr. Leach was transferred to Bowden. A criminal profile report was prepared by a Corrections Canada parole officer providing a psychological risk assessment of Mr.

Leach’s risk of reoffending. Mr. Leach was described as impulsive, having poor emotional control and presenting only limited insight into his offending. He was described as having limited ability to identify what lead to his deviant behaviour. Frustration, negative feelings, anger and impulsivity were identified as factors contributing to Mr. Leach’s offending. Relying on psychological risk assessment tools to predict a rate of recidivism, Mr. Leach was assessed as a moderate risk for general recidivism and a high risk for violent recidivism. The parole officer concluded that if Mr.

Leach did not make positive changes, like using pro-social supports, his risk to reoffend would remain high ( Exhibit 2 Tab 14 ). [ 43 ] From November 26, 2012 to July 26, 2013 while at Bowden, Mr. Leach attended the National High Intensity Sex Offender Program. That program targets men who have been assessed as having a high risk of reoffending sexually. The evidence of Ms. Luft is that the program consisted of about 100 sessions that covered a series of topics addressing the sexual offending cycle.

The sessions were delivered as daily group sessions (Monday to Friday), with one-on-one sessions with an offender at the completion of every module. While the program has since been modified and is now integrated with programs relating to substance abuse, general violence and partner abuse, the core of the program and the skills taught are largely unchanged.

The topics include behavioural progression (what has happened in the offender’s life), cognitions (how thinking contributes to offending), emotions (including sex as coping), relationships, empathy (looking at the full consequences of behaviour including primary and secondary victims), problematic sexual arousal, and the development of a self-management plan that identifies specific skills to prevent reoffending. [ 44 ] Ms. Luft specializes in sex offender programming and has been involved with Bowden’s sex offender programming for 19 years. She was the program officer at the time Mr.

Leach participated in the National High Intensity Sex Offender Program. She described Mr. Leach as very passive, disengaged and removed during the program. Despite her evidence that Mr. Leach’s passivity and lack of motivation hindered his treatment gains, Mr. Leach received a “successfully completed” rating at the conclusion of the program. [ 45 ] In 2013, following completion of the National High Intensity Sex Offender Program, Mr. Leach was assessed by Ms. Kelly Butler, Registered Psychologist for Corrections Canada. Ms. Butler conducted a specialized sex offender assessment.

Some of the observations contained in her comprehensive report include Mr. Leach’s inability to empathize; his strong tendency to isolate (particularly when he was to be working on social interaction); his tendency to hold onto resentments; and his tendency to act out opportunistically and impulsively. She identified Mr. Leach as someone easily angered. She expressed concern regarding Mr. Leach’s ability to self-monitor and to identify risk factors prior to offending.

She identified significant barriers to him not offending, including his very superficial and immature understanding of his sexual attraction to young females, his struggles with rejection, his high susceptibility to being negatively affected by his social world, and his lack of skills to manage negative emotions like loneliness, sadness, rejection, frustration, and anger. She characterized his offence cycle in this way: [Mr. Leach] has undisputed sexual attractions to young female children.

He has considerable deficits in social skills, which prevent him from engaging in emotionally satisfying relationships with his peers, resulting in social isolation. When socially isolated he is unable to fully understand and deal with his negative emotions in a healthy way, but uses sexual behaviour (masturbation or offending) to relieve himself of such emotions. When he experiences rejection from the social world, real or perceived he becomes angry and feels justified about getting his needs met.

With fantasies of domination and control, his sexual attraction to female children, and his impulsivity, it will be extremely difficult for him, at that point, to refrain from sexually offending against a young female child. ( Exhibit 2 Tab 43 ) [ 46 ] Ms. Butler administered a number of cognitive and psychological tests, including some designed to assist in predicting sexual and violent recidivism for sex offenders. From her clinical assessment and the results of testing, and despite the fact that Mr. Leach had completed the National High Intensity Sex Offender Program, she concluded that Mr.

Leach was in the very high-risk category for

sexual reoffending. [ 47 ] Mr. Leach participated in the National Sex Offender Maintenance Program between August 2014 and September 2016 both while in custody and while on statutory release. That maintenance program is designed to help an offender maintain the skills taught in the National High Intensity Sex Offender Program. It targets problem solving, emotional self-management, and risk management, including the use of sex as coping. Mr. Leach received an “attended all sessions” rating for his attendance at the maintenance program. [ 48 ] Mr.

Leach achieved statutory release on February 26, 2015 and was released on the condition that he reside at Bedford House. Additional release conditions included that he have no contact with female children under the age of 16 and that he not purchase, acquire or possess pornography or sexually explicit material. [ 49 ] Mr. Leach also participated in nine one-on-one psychology sessions with Ms. Jane Aldous, Psychologist for Corrections Canada. In a psychological therapy report dated January 8, 2016, Ms. Aldous made the following observations of Mr. Leach: Mr.

Leach continues to have some difficulty identifying emotions but this improved somewhat over time. Unfortunately work on exploring the roots of his low self worth and his related rage and need for power-over, was unsuccessful and not recommended as it is very unlikely he could not [ sic ] tolerate and manage experiencing the resulting affect. In lieu, he did make some small gains in cognitive understanding (versus emotional insight) into these drivers of his cycle, but the degree of unresolved rage related to lack of worth is a powerful risk factor and remains easily triggered given the right circumstances. Mr.

Leach made some small gains in the community. Future gains will require ongoing structured social activities, a planned and structured daily routine under close supervision, and ongoing treatment. ( Exhibit 2 Tab 47 ) [ 50 ] While in custody and during his release, Mr. Leach also engaged with CoSA. Mr. Leach’s involvement with CoSA was described by Ms. Aldous as providing very valuable experiential learning that increased Mr. Leach’s ability to feel some worth by experiencing how trust is built, experiencing acceptance, learning how to behave in social groups, and learning how to participate in group activities.

She observed that “Mr. Leach isolated less than he did in the community in the past largely due to having COSA as a social vehicle. He stated he enjoyed the outings and was surprised he felt accepted and more relaxed” ( Exhibit 2 Tab 47 ). However, she noted that Mr. Leach had not generalized the skills needed to build his own social connections and that isolation remained an ongoing risk factor related to his risk of reoffending. [ 51 ] In this same time frame, the records show that Mr. Leach was in an unhealthy relationship with a woman who appeared to be extorting him for money.

He was dishonest with his corrections management team with respect to that relationship. According to Ms. Aldous’ observations, the fact that this abuse occurred without Mr. Leach sharing the information with his corrections management team underlined his continuing lack of self-worth in relationships and his lack of accountability. She identified this issue of personal accountability as critical to Mr. Leach’s risk of reoffending. [ 52 ] Mr. Leach’s cell phone was examined in relation to this unhealthy relationship and it was found to contain sexually explicit pictures.

The search history disclosed searches relating to the molestation of little girls, including “stripping nude” and “forced to strip nude”. There were also numerous searches relating to the sexual assault of adult females. Although at the time Mr. Leach denied conducting the searches, he subsequently admitted to doing so. In March 2016, the National Parole Board revoked Mr. Leach’s release. [ 53 ] Mr. Leach was re-released into the community in July 2016 in anticipation of his warrant expiry in September 2016.

On his release and prior to his warrant expiry, he was required to wear an electronic monitoring device monitored by Corrections Canada. [ 54 ] Ms. Aldous prepared a progress report in August 2016 following Mr. Leach’s re-release into the community. Despite some positive observations about Mr. Leach’s physical health and his willingness to access help, she expressed the opinion that a reassessment of his risk of reoffending would not generate a different result from 2013. Despite Mr. Leach having completed the National High Intensity Sex Offender Program and the National Sex Offender Maintenance Program, Ms.

Aldous concluded that Mr. Leach remained a very high risk to reoffend with sexual violence. Her opinion was that once Mr. Leach’s anger was triggered, it was “virtually impossible” for him to refrain from sexually offending against a young female child ( Exhibit 2 Tab 50 ). [ 55 ] On September 16, 2016, just in advance of his warrant expiry, Mr. Leach entered into a 2-year peace bond under s. 810.1 of the Criminal Code . The conditions attached to the peace bond placed him under the supervision of HROP. According to the evidence of Constable Tait and confirmed by Mr.

Valstar, HROP represents the highest level of offender supervision in the community. HROP oversaw where Mr. Leach lived and worked, and with whom he could associate. He reported to them in person weekly and was subject to scheduled and random checks. He was directed to have no contact with children under 16 unless supervised. He was also required to wear an electronic monitoring device remotely monitored by HROP. He was provided HROP’s 24-hour emergency phone number and was given Constable Tait’s personal work phone number. In addition, Mr.

Leach was required to attend treatment at FAOS bi-weekly, including group sex offender therapy and individual therapy. [ 56 ] Following his warrant expiry in September 2016 and until the index offence on August 3, 2017, Mr. Leach participated in individual and group sex offender therapy under the guidance of Dr. Denise Fillion, Clinical and Forensic Psychologist at FAOS. Mr. Leach attended a total of 17 group sex offender maintenance therapy sessions between October 2016 and August 2017, attending every other week. In addition, he continued to engage with CoSA. In October 2016, Dr.

Fillion made similar observations that Mr. Leach’s sole source of community support to prevent reoffending existed within CoSA, HROP, FAOS and Dr. Baxter: [Mr. Leach] noted that he is currently motivated to remain offence-free, and has support in the community (e.g., CoSA, HROP, here, Dr. Baxter). He added that he also has other offenders whom he utilizes for support, stating that they understand him and help him in different ways.

Notably, he shared his experiences with CoSA adding that he felt the group was very helpful. ( Exhibit 6 ) [ 57 ] Particularly from January to August 2017, the records demonstrate that Mr. Leach was not only aware of the community supports he had available to him to prevent his reoffending, but that he relied on them. The notes of the psychiatric session on January 27, 2017 show that Mr. Leach contacted FAOS and requested a psychiatric appointment because he was struggling and slipping into a

negative cycle. Out of that meeting, Mr. Leach was provided 24-hour access to FAOS personnel. Dr. Fillion’s notes read: Mr. Leach explained that he had started to isolate more, was not engaging in self-care (e.g., his personal hygiene was poor), and was increasingly moody/labile. He identified that his change in behaviour is at least in part related to unemployment and related boredom. Mr. Leach noted that his friend and HROP called him on the changes, and he has been addressing it since. When asked, Mr.

Leach further stated he has not been going to as many CoSA events (e.g., weekly), but still participates in his circle of support meetings and the big events. Mr. Leach stated that he has been cleared to return to work (his wrist) and will recommence next week. However, he identified several obstacles (e.g., meetings with FAOS, Dr. Baxter, HROP) and this was problem solved – e.g., he’s asked HROP if he can shift weekly meetings, he could put group on hold here or attend less frequently, he only sees Dr. Baxter once per couple of months. Mr.

Leach discussed his relationship with [his girlfriend], stating that she has been staying with him several nights a week, since she was evicted from the YWCA re: not having been able to pay rent. He admitted that she is likely staying with him too often, but does not believe he will lose his place there. Discussed the importance of keeping himself safe and stable. … We reviewed some long term goals for Mr. Leach, and he stated that he would like to start his own business at one point, but realizes he will have to get a stable job and finances first. Mr. Leach was provided Mr.

Harbourne’s contact information, in the case that he needs to talk to someone immediately, and I am not available. ( Exhibit 6 ) C. The Index Offence [ 58 ] The evidence is consistent that at the time of the index offence, Mr. Leach understood that CoSA, HROP, Dr. Baxter, Dr. Fillion and the FAOS group therapy program provided important community supports to prevent his reoffending. He was provided access to 24-hour support through FAOS and HROP if needed. Notwithstanding his apparent ability to identify his negative cycle, he did not seek help or intervention at the time of the index offence.

Yet, the circumstances surrounding the index offence paint an internal picture of increasing isolation, mounting stressors, and a decline in what was already substandard self-care. [ 59 ] In August 2017, Mr. Leach was working for a landscape crew full time but with irregular hours. Although he was being supervised by HROP, Mr. Leach’s in person check ins had become less frequent to accommodate his work schedule. While he had been participating in CoSA every other week, he reported to Dr. Metelista and to Ms. Nessman that he had withdrawn from his friends and the CoSA circle.

He reportedly was struggling in his relationship with his girlfriend, who was unemployed and homeless. He was waiting for HROP to approve a change to his residence, but was having difficulty finding roommates. On August 1, 2017, he reported to FAOS that his potential roommates had “bailed.” [ 60 ] As recorded in the reports of Dr. Metelista and Ms. Nessman and as set out in the HROP entries, HROP officers, CoSA staff and CoSA volunteers all noted that in the months leading up to the index offence, Mr.

Leach was demonstrating little attention to his self-care, only cleaning, showering and maintaining his residence when prompted. One of Mr. Leach’s friends observed that Mr. Leach had isolated himself and was spending money recklessly, like spending all of his weekly earnings on food and marijuana for his girlfriend before paying his rent. To Ms. Nessman, Mr. Leach described himself as being “really miserable” at the time. He identified that he was experiencing increased stress relating to his relationship and uncertainties regarding where and with whom he was going to live. [ 61 ] Mr.

Leach attended FAOS sex offender maintenance group therapy on August 1, 2017, just two days prior to the index offence. The notes of that meeting make no mention that Mr. Leach alerted others to his need for help. In addition, HROP conducted a home check on July 27, 2017 and Mr. Leach initiated phone contact with HROP on both August 1 and August 2, 2017 seeking approval to attend a CoSA camping trip and regarding his proposed new residence. There is no evidence that Mr. Leach alerted CoSA, HROP, or FAOS that he was concerned about reoffending or in need of help. [ 62 ] On August 3, 2017 Mr.

Leach was working with the landscape crew when he encountered a 7-year-old girl playing alone in the alley near her home. The girl was not known to him; however, Mr. Leach had seen the child in the days leading up to the offence and was seen watching her earlier that day, returning to where she was despite work being finished in that area. Mr. Leach reported to Ms. Nessman that he was daydreaming of his life and that he began to think of his previous sexual offending and how offending made him feel better. [ 63 ] Mr.

Leach approached the child, told her she was in trouble for trespassing, threatened that he could call the police, and directed her to go with him. He took her to a secluded area and then sexually assaulted her by reaching his hand inside her clothes and underwear and touching her vagina with his fingers for one to two minutes. Mr. Leach denies penetrating the child; however, the child reported that she “felt his whole hand inside of her.” Mr. Leach stopped the sexual assault when he heard someone nearby. After the sexual assault, he told the child to count to 30 before she could leave.

The child did so and then immediately reported the sexual assault to her parents. Mr. Leach returned to work but was apprehended shortly following. [ 64 ] According to the information contained in the exhibits, Mr. Leach initially denied sexually assaulting the child. However, after being confronted with the GPS data that showed his tracking points, he admitted to sexually assaulting the child. The records indicate that Mr. Leach downplayed the sexual assault, suggesting that he did not hurt or injure the child in any way. D.

The Assessment Process Under s. 752.1 of the Criminal Code [ 65 ] Following the index offence, Mr. Leach was remanded to SAFPC for assessment pursuant to a warrant of remand under s. 752.1 of the Criminal Code . He remained at SAFPC from November 20, 2018 to January 17, 2019. SAFPC is a forensic hospital for psychiatric and psychological assessment of offenders. At SAFPC, Mr. Leach was examined by Dr. Metelista for psychiatric assessment

and was interviewed by Ms. Nessman for psychological assessment. A social work assessment report was also prepared. In addition, Mr. Leach’s behaviour while at SAFPC was observed and recorded. Mr. Leach was found to have the cognitive capacity to participate in treatment. Said differently, no concerns were identified that Mr. Leach lacked the cognitive capacity to understand, participate in and benefit from treatment or programming. This finding is consistent with all of Mr. Leach’s prior assessments. Ms. Nessman [ 66 ] Ms. Nessman’s opinion, formed following a detailed review of Mr.

Leach’s corrections and medical records, 10 hours of clinical interviews, and extensive psychological and risk assessment testing, is that Mr. Leach remains a high risk of sexually reoffending. I am satisfied that her opinion was thoughtfully and thoroughly reached. [ 67 ] Ms. Nessman described a number of high-risk factors relating to Mr. Leach’s risk of sexual reoffending. Those high-risk factors include chronicity, escalation, and coercion. Ms. Nessman described Mr. Leach’s history of sexual offending as chronic due to its early onset and its persistent and repeated nature. She also concluded that Mr.

Leach’s sexual offending showed signs of escalation. In her opinion, the fact that Mr. Leach offended while under intensive supervision showed a higher level of disregard and impulsivity than his prior offending. Mr. Leach offended knowing that he would be caught. In addition, she concluded that Mr. Leach’s offences included both physical and psychological coercion. These high-risk factors, as well Mr. Leach’s admission that he intended to cause harm or fear to his victims, all contributed to her opinion that Mr. Leach is a high risk to reoffend. [ 68 ] In addition, Ms. Nessman expressed the opinion that Mr.

Leach either does not recognize or cannot acknowledge all of the behaviours that contribute to his sexual offending, meaning that his thought process and belief system prevent him from accepting responsibility for his deviant sexual behaviour: Mr. Leach displays a limited capacity to express remorse and any attempts to do so present as disingenuous and more likely a [ sic ] reflecting disappointment in his personal loss of freedom. He also shows a lack of self-awareness regarding his risk of reoffending.

Although he acknowledges many of [ sic ] own personality deficits and the triggers that commence his offence cycle, he refuses to acknowledge the progressive thoughts and behaviour that lead up to his offending. ( Exhibit 2 Tab 55 ) In Ms. Nessman’s opinion, Mr. Leach has to understand that he is the one who thinks of, fantasizes about and finds a way to offend for him to be able to control his deviant sexual behaviour. [ 69 ] In addition, Ms. Nessman noted that Mr.

Leach minimizes his offences, minimizes the seriousness of the sexual assaults, denies elements of his offending previously admitted, and dismisses his actions as being the result of impulsivity. In her opinion, these attitudes and Mr. Leach’s personality disorder, including antisocial, borderline, and avoidant features, support ongoing sexual violence. [ 70 ] Ms. Nessman described Mr. Leach as having a deep need to belong, but also as someone who, despite having received significant treatment and supports, has not improved his ability to relate to others. As a result, he continues to experience rejection.

Despite the supports built for Mr. Leach in the community, he is stressed by daily experiences including financial pressures, employment difficulties and relationship challenges. Ms. Nessman described his offence cycle as one where he begins to give up, stops self-care, and focuses on past abandonment and rejection. When he does so, he becomes angry and frustrated, exhibits poor impulse control, and feels the need to assert himself and to exercise power and control. Ms. Nessman’s opinion is that to Mr. Leach, offending against a vulnerable child is a source of power, control, and sexual release.

It also offers him the reassurance that he will be incarcerated again, returning him to a highly structured environment where his stressors are eliminated or mitigated. [ 71 ] With respect to the risk of sexual recidivism, Ms. Nessman and her team employed the STATIC-99R and the STABLE-2007 risk assessment tools. The STATIC-99R is an actuarial risk assessment tool designed to assist in the prediction of sexual and violent recidivism for sex offenders. It uses only static (unchangeable) factors that have been found to correlate with sexual recidivism in adult males. Ms. Nessman’s evidence is that Mr.

Leach’s score on the STATIC-99R placed him in the well above average risk category for sexual recidivism, the highest risk category available. [ 72 ] The STABLE-2007 is an actuarial risk assessment tool that looks at stable dynamic factors related to sexually offending behaviours. It attempts to assess risk based on the offender’s current life circumstances, identifying relevant dynamic factors. The relevant factors identified for Mr. Leach included relationship stability, social rejection, impulsiveness and the use of sex as coping. Mr.

Leach’s score on the STABLE-2007 placed him in the high-risk category as compared to other sex offenders. Ms. Nessman testified that when combined with his score from the STATIC-99R, Mr. Leach is rated overall as being a very high risk of sexual reoffending. Together, Ms. Nessman’s clinical observations, the results from actuarial risk assessment tools, and the results of structured professional judgment tools all informed her opinion that Mr. Leach remains a high risk of sexual reoffending. Dr. Metelista [ 73 ] Dr. Metelista diagnosed Mr.

Leach as having Pedophilic Disorder, with signs attributable to Sexual Sadism Disorder. In addition, he opined that Mr. Leach meets the diagnostic criteria for Substance (cannabis) Use Disorder and Unspecified Personality Disorder (with prominent antisocial, avoidant, and borderline traits). Dr. Metelista formed his opinion after a detailed review of Mr. Leach’s personal history (family, medical, education and employment), his relationship and psychosexual history, and his criminal and psychiatric history. He also interviewed Mr.

Leach, observed him at SAFPC and reviewed the results of the psychological testing administered at SAFPC. [ 74 ] With respect to the diagnosis of Pedophilic Disorder with signs attributable to Sexual Sadism Disorder, Dr. Metelista made a number of observations of Mr. Leach from interviews and psychological testing. Notably, he concluded that Mr. Leach minimizes the seriousness of his sexual interest in children and explains his behaviours as being a response to stress. Despite that, Mr.

Leach admitted to being sexually aroused by thoughts or fantasies involving force or rape, admitted to using deviant pornography for masturbation, and acknowledged that he becomes more excited about the fear and pain he causes his victims than from the sex itself.

[75] In discussing the impact of Mr. Leach’s offences on his victims, Dr. Metelista opined that Mr. Leach did not display signs ofsincere remorse towards his victims, but presented as focused on how his offending has impacted him and his loss of liberty. Consistentwith others who have assessed Mr. Leach, Dr. Metelista observed that Mr. Leach’s absence of sincere remorse precludes insight into theimpact his actions have on others and makes it easier for him to reoffend. [76] With respect to the diagnosis of Unspecified Personality Disorder (with prominent antisocial, avoidant and borderline traits),Dr.

Metelista’s evidence was that Mr. Leach has very low self-esteem, shallow emotions, poor stress tolerance, and poor impulse control.Dr. Metelista expressed the opinion that Mr. Leach’s pedophilic urges and actions are a key part of his long-established coping responseto stress. Dr. Metelista expressed the opinion that Mr. Leach seeks relief from stress through sexual reoffending and that he acts outagainst children as a pathological coping strategy. Dr. Metelista’s opinion is that Mr. Leach offends not because of a high sex drive thathe cannot resist, but because of how offending makes him feel: Mr.

Leach feels better after he offends even after he is placed in custody. [77] Dr. Metelista also observed that interactions with adults cause Mr. Leach stress and that as a result, Mr. Leach tends to isolate.Dr. Metelista’s evidence was that Mr. Leach demonstrated this tendency while at SAFPC where he was observed to stand away from theline of patients to avoid interaction with others. Dr. Metelista expressed the opinion that Mr. Leach’s tendency to isolate may lead toreoffending. [78] With respect to the risk of Mr. Leach reoffending, Dr. Metelista’s evidence was that Mr.

Leach acknowledged that he needstreatment and expressed an interest in attending treatment programs that could help him stop offending. However, Dr. Metelistaexpressed the opinion that Mr. Leach has already learned the skills needed to refrain from offending but has failed to integrate thatknowledge and to apply the necessary skills. Dr. Metelista resisted any suggestion that the index offence was impulsive, noting that Mr.Leach had numerous opportunities to play out in his head the coping strategies he has been taught to prevent his reoffending.

Dr.Metelista concluded that the circumstances around the index offence support the conclusion of premeditation and choice: despite all ofhis knowledge and all of the resources and time spent to educate him against reoffending, Mr. Leach chose to offend. [79] Dr. Metelista described Mr. Leach as a predator who knows the risks of his acting, recognizes the consequences of hisoffending and acts anyways. He concluded that Mr. Leach is not deterred from acting by his experience with the criminal justice system.Mr.

Leach knows that when in custody, he will be free from stressors, his life will be predictable, and the uncertainties of where to live,developing relationships and providing for himself, will be removed. Dr. Metelista expressed the opinion that as long as Mr. Leach’sineffective coping strategies persist, Mr. Leach is likely to continue to offend. E. Post Incarceration Conduct [80] In a dangerous offender hearing, the offender’s conduct up to the time of the hearing is relevant to the court’s assessment ofthe likelihood of future harm: R v Carleton, 1981 ABCA 220 at paras 11-12, aff’d (SCC), [1983] 2 SCR 58.

On thatbasis, I was provided and have reviewed the corrections records from Mr. Leach’s current incarceration. Those records identifyadditional concerns regarding Mr. Leach’s risk of reoffending that warrant comment. [81] In January 2020, Mr. Leach self-reported illicit drug use, including heroin and meth. He requested treatment for opioid usedisorder. The records also reference repeated attempts by Mr. Leach to conceal and divert his medications, specifically suboxone andtrazodone. Those attempts purportedly occurred in December 2019 and January, June, and July 2020. While Mr.

Leach is noted ashaving denied diverting his medication, he also admitted to deliberately holding medications to self-test whether a higher dose wouldhelp his cravings for cocaine and meth. [82] This additional evidence was not put to either Ms. Nessman or Dr. Metelista and post-dates the preparation of their reports;however, both Ms. Nessman and Dr. Metelista, amongst others, expressed the opinion that drug or alcohol use is an additional risk factorto Mr. Leach’s risk of reoffending. 4. Analysis A. Phase 1 - Dangerous Offender Designation [83] Although Mr.

Leach does not resist designation as a dangerous offender, the court’s obligation is to apply rigour to theevidence to be satisfied that a dangerous offender designation is warranted because of the threat presented by the offender.

That includesan assessment of whether the index offence is part of a broader pattern of violence; whether there is a high likelihood that the violentconduct will continue; and whether the violent conduct is “substantially or pathologically” intractable. [84] Whether the index offence is part of a broader pattern of violence requires examination not only of the number of pastoffences, but whether there is a relevant pattern of behaviour. The intention is to determine whether there is an established pattern ofbehaviour from which future behaviour can be predicted: Neve at para 113.

A pattern can be established where there are elements ofsimilarity in the offenders’ behaviour (R v Langevin, [1984] CanLII 1914 (ONCA)); or where there is similarity in the result of theoffender’s behaviour: Neve at para 111. [85] In my view, this element of the threat assessment is easily met. Mr.

Leach’s offending contains enough of the same elementsof unrestrained deviant and dangerous behaviour that it is reasonable to conclude that he is likely to offend in the same way in the future.His offences, including the index offence, have all been sexual assaults against the same victim group: young and vulnerable femalechildren.

While there are distinguishing features to each offence, there is sufficient similarity in the circumstances of the offending, thevictim group and the type of sexual violence to conclude that there is a clear pattern of violent offending behaviour of which the indexoffence forms a part and from which it can be predicted that Mr. Leach is likely to offend in the same way in the future. [86] The second element of the threat assessment requires the court to undertake a prospective assessment of risk. An offender

cannot be designated as a dangerous offender unless he presents a future threat. The point of this step is to go beyond an assessment of present danger and attempt to look into the future: R v Ominayak , 2012 ABCA 337 at para 21 . [ 87 ] In this regard, the expert evidence and the historic treatment and assessment records inform my determination that Mr. Leach presents a high likelihood of future violent offending. Mr. Leach has been the subject of numerous psychiatric and psychological assessments.

Notably, his core personality characteristics are consistently identified and are linked to his offending cycle and risk of reoffending. The psychiatrists and psychologists who have assessed Mr. Leach consistently describe him as being a high risk to reoffend with sexual violence. [ 88 ] Both prior to and following the index offence, Mr. Leach was able to identify many of the risk factors that lead to his offending. However, he has demonstrated superficial or no insight into his offending behaviours, including his sexual attraction to young females. In her 2014 Specialized Sex Offender Assessment Report, Ms.

Butler, in my view, captured Mr. Leach’s fleeting and immature understanding of his pedophilic disorder. She noted that Mr. Leach claimed to experience a shift in his sexual interest from children to adults, and suggested he could “instantly morph” his deviant sexual fantasies into healthy ones. Ms. Butler’s observations were that Mr. Leach’s “understanding of his sexual attraction to young females is very superficial and immature and does not consider the gravity and deep-seated nature of having a sexual attraction toward young children.” Like Ms. Nessman, Ms. Butler suggested Mr.

Leach has not accepted his sexuality, nor has he learned how to address it in a healthy manner ( Exhibit 2 Tab 43 ). [ 89 ] Moreover, his repeated offending despite extensive treatment demonstrates that Mr. Leach has not internalized or operationalized what he has been taught. The records satisfy me that Mr. Leach has displayed a lack of effort in implementing the life skills that would contribute to his independence and lessen his risk of reoffending. I note that there are a number of examples in the exhibits where Mr.

Leach claimed to be using learned skills to help manage his stress, and yet in reality he was observed to revert to his usual pattern of behaviour of isolation and deviant fantasies. This and his repeated offending demonstrate that Mr. Leach has not internalized the treatment he has been provided in such a way as to prevent future offending. [ 90 ] Moreover, the evidence surrounding the index offence satisfies me that Mr. Leach was aware of the resources available to him to prevent his reoffending. As articulated by Dr. Metelista, Mr.

Leach made a series of choices – to ignore his known risk factors; to not access available resources; to court with the idea of offending; to watch the victim; to return to where he expected her to be; and ultimately to sexually assault her. All of these factors indicate deliberateness in his conduct. Despite an expressed desire to not reoffend, Mr. Leach has been unable to activate the tools he has been taught or unwilling to access the resources he knows are available to him to prevent his reoffending. The index offence occurred while Mr.

Leach was under the highest level of community supervision available and when subject to electronic, scheduled and random monitoring. This satisfies me that supervision and the threat of incarceration present no deterrent to him. When considered alongside the identified risk factors including his inability to empathize, his lack of remorse, and his minimization of the impact of his offending on his primary and secondary victims, I am satisfied that Mr.

Leach poses a high likelihood of future violent sexual offending. [ 91 ] The next consideration in the prospective assessment of risk requires the court to consider future treatment prospects and whether the offender’s pattern of offending is difficult or impossible to treat. In Boutilier at para 27 , Côté, J defined this idea of intractable conduct as behaviour the offender is unable to surmount. In R v Ominayak , 2007 ABQB 442 at para 209 , aff’d 2012 ABCA 337 , Topolniski, J set out six considerations to assist in evaluating whether an offender’s behavior is intractable and unlikely to be treatable.

Those include: (

a) whether the offender has deeply ingrained personality disorders that are resistant to change; (

b) the availability or lack of availability of appropriate treatment facilities; (

c) the offender’s poor outlook for improvement even where facilities exist; (

d) the expert’s inability to estimate or predict a time frame for improvement; (

e) some, but very little, hope for treatment some time in the future; and (

f) treatment that will be long and difficult because the offender has more than one disorder and a limited capacity to learn. Many of these factors are applicable to Mr. Leach. [ 92 ] If the potential for success of future treatability can in part be assessed based on the effectiveness of past treatment, then Mr. Leach has demonstrated that his behaviour is intractable. Mr. Leach has twice reached warrant expiry after being provided intensive sex offender treatment and in both instances, has been assessed as being a high risk of sexual reoffending. In 2013 despite Mr.

Leach having completed the National High Intensity Sex Offender Program, Ms. Butler concluded that it remained extremely difficult for Mr. Leach to refrain from sexual offending against young female children ( Exhibit 2 Tab 43 ). In August 2016 following Mr. Leach’s completion of the National Sex Offender Maintenance Program, Ms. Aldous noted that it was virtually impossible for Mr. Leach to refrain from sexually offending against a young female child once his anger is triggered ( Exhibit 2 Tab 50 ).

Despite having been provided hundreds of hours of sex offender treatment, both while incarcerated and while in the community, in group settings and in one-on-one therapy, Mr. Leach’s risk of reoffending with sexual violence against young female children has not reduced. As confirmed by Dr. Metelista and Ms. Nessman, Mr. Leach remains a high risk of sexual reoffending today. [ 93 ] I am satisfied beyond a reasonable doubt that Mr. Leach poses a high likelihood of harmful recidivism. His inability to restrain his behaviour constitutes a threat to the life, safety, physical and mental well-being of the public.

I find that the Crown has established beyond a reasonable doubt that Mr. Leach’s conduct meets the criteria for dangerous offender designation under s. 753(1) (a)(

i) of the Criminal Code . I find that Mr. Leach is a dangerous offender and designate him as such. B. Phase 2 - Sentencing

[ 94 ] Even though the evidence has established that Mr. Leach is unable to surmount his violent conduct, at the penalty stage I am to be concerned with whether the risk arising from his behaviour can be adequately managed outside of an indeterminate sentence: Boutilier at para 31 .

My responsibility is to impose the least intrusive sentence required to achieve the protection of the public: Boutilier at para 60 . [ 95 ] While not expressed in the context of a dangerous offender proceeding, the Supreme Court in R v Friesen , 2020 SCC 9 at para 123 discussed the issue of public protection in the context of sexual violence against children: Where the sentencing judge finds that the offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offender from society in s. 718 (

c) of the Criminal Code . Emphasizing this objective will protect children by neutralizing the offender’s ability to engage in sexual violence during the period of incarceration (see K.R.J. , at para. 52 ). The higher the offender’s risk to reoffend, the more the court needs to emphasize this sentencing objective to protect vulnerable children from wrongful exploitation and harm ( L.M. , at para. 30; S. (J.) , at paras. 39 and 84 ). [ 96 ] I will not repeat the observations made in the context of the threat assessment already conducted.

Those observations have equal relevance to my assessment of the appropriate sentence Mr. Leach is to receive. Mr. Leach has been assessed to be a high risk to reoffend with sexual violence. He is unable to internalize treatment despite having the capacity to benefit from programming and treatment, and he has already completed the most sophisticated and intense form of treatment for sex offenders in Canada and is yet only 30 years old.

He lacks any support in the community outside of sex offender programming and services, and notably was participating in FAOS group therapy and CoSA’s support circle when he reoffended. He was also was subject to a peace bond and the highest level of supervision available within the community. His offending, while opportunistic, was also deliberate. It is characterized by his use of vulnerable children to obtain sexual gratification, with the express intention of causing fear and harm. All of these are aggravating circumstances that I have considered in Mr.

Leach’s sentencing. [ 97 ] There was no suggestion by Mr. Leach’s counsel that a conventional sentence for the index offence would adequately protect the public from the risk Mr. Leach presents of violent sexual offending against young female children and I agree. The question remaining, therefore, is whether Mr. Leach’s behaviour can be adequately managed if he is sentenced to a determinate period of incarceration accompanied by a 10-year long-term supervision order.

I have concluded that it cannot. [ 98 ] A determinate sentence accompanied by a long-term supervision order is a preventative sanction built upon supervision in the community: R v Sipos , 2014 SCC 47 at para 19 . It is available where an offender’s risk of reoffending can be effectively managed through programming and community supervision. However, real-world resourcing limitations compared to the supervision needs of an offender cannot be ignored where to do so would endanger the public: R v Little , 2007 ONCA 548 at para 70 . [ 99 ] Both Dr. Metelista and Ms. Nessman gave evidence as to whether Mr.

Leach’s behaviour can be adequately managed outside of an indeterminate sentence. Ms. Nessman offered seven non-medical recommendations that might manage Mr. Leach’s risk within the community. She did not, however, express any opinion as to when these recommendations might be effective. Her recommendations, summarized, are: 1. more intense supervision in the community, including monitoring of Mr. Leach’s behaviour for indicators that precede his offending (i.e. isolation, viewing pornography, and not problem solving); 2. placing Mr.

Leach in a secure residential placement to allow for additional monitoring and to reduce the stressors of more independent living; 3. restricting or eliminating Mr. Leach’s access to videogames and pornography; 4. further sex offender programming, including monitoring of his level of participation and commitment; 5. continual monitoring of Mr.

Leach’s stress and emotional reactivity levels through individual counseling or therapeutic support; 6. frequent and intense monitoring to ensure he is abstaining from cannabis use, including participation in substance abuse training; and 7. vocational placement in a low risk environment to allow him to develop a sense of identity, purpose and self-confidence. [ 100 ] Ms. Nessman was not aware whether resources are currently available to provide the supervision or residency recommended. She also acknowledged that it could be difficult for supervising agencies to identify when Mr.

Leach is decompensating as the indicators that signal his risk of reoffending, like isolation and poor self-care, do not differ materially from Mr. Leach’s baseline functioning. Finally, she expressed the opinion that Mr. Leach likes engaging in the therapeutic process and would likely be cooperative with future treatment efforts, but that he tends to say what he thinks his professional assessors or therapists want to hear, rather than reporting true gains. Each of these limitations present significant barriers to the likely effectiveness of supervision in the community. [ 101 ] Dr.

Metelista concluded that given Mr. Leach’s personality, his prognosis is very guarded. He expressed the opinion that Mr. Leach’s Pedophilic Disorder cannot be changed and that therefore the only possible treatment is psychotherapy to address Mr. Leach’s personality, including his low self-esteem, self-perception, anger, and resentment. However, Dr. Metelista opined that Mr. Leach’s personality issues are deep-rooted and represent who he is. Dr. Metelista concluded that the success of any treatment will depend on the type of therapy Mr.

Leach receives, the level of rapport between therapist and patient, and the indicators targeted. Dr. Metelista could not express an opinion as to how soon any success could be achieved, if at all. However, he did express the opinion that treatment in the community would have close to no possibility of success as Mr. Leach would continue to be bombarded with stressors he cannot cope with. While Dr.

Metelista agreed that treatment delivered in a penitentiary environment followed by release into a very controlled environment was conceptually a good idea, he could not express any opinion as to how soon or how strong Mr. Leach’s remission might be.

[ 102 ] The evidence of Mr. Valstar is that a dangerous offender who receives a determinate sentence and long-term supervision order is in the same position as any offender sentenced to a finite period of incarceration: that offender is entitled to apply for parole after serving one-third of his sentence (and day parole six months earlier), is entitled to statutory release after serving two-thirds of his sentence, and remains on parole until his warrant expiry. Where a long-term supervision order is imposed, that long term supervision order takes effect on warrant expiry.

While a dangerous offender is not on parole while under a long-term supervision order, he remains under supervision of Corrections Canada and will be subject to whatever conditions of release are imposed by the National Parole Board. [ 103 ] At every stage of possible re-entry into the community, Corrections Canada conducts a risk assessment to address whether and how the risks relating to the offender can be managed within the community.

Where appropriate, Corrections Canada will recommend to the National Parole Board that release be granted on strict conditions that can include residency, reporting and restrictions on movement where necessary to ensure the safety of the public. For so long as the offender is on parole, Corrections Canada conducts ongoing assessments of the risk posed by the offender and has the ability to suspend an offender’s parole to reassess whether his risk remains manageable within the community.

Where warranted, the National Parole Board has the authority to revoke an offender’s parole. [ 104 ] However, regardless of whether or not that offender has participated in and benefitted from the programming recommended in his corrections plan, and regardless of whether an offender’s risk profile has actually reduced, the dangerous offender with a determinate sentence is entitled to regain his liberties as statutorily permitted. [ 105 ] The evidence of Mr. Valstar and Constable Tait satisfies me that there are practical limitations on the resources available to supervise an offender in the community. Mr.

Valstar’s evidence was that Corrections Canada has fewer resources for monitoring an offender in the community than HROP and lacks the policing authority and safety measures available to members of the police service. His evidence was also that community residential facilities are not designed or equipped to effectively serve as house arrest. [ 106 ] The cautious recommendations of Ms. Nessman and guarded possibility expressed by Dr. Metelista must be placed in the context of real-world resources. Both are predicated on intense community support and supervision.

From the index offence, it is evident that even with a collaborative network of community support available to him 24-hours a day and the highest level of community supervision and monitoring, Mr. Leach acted on the opportunity to offend. According to the evidence of Constable Tait and Mr. Valstar, there is no higher level of supervision available than what is provided by HROP.

I agree with the sentiment expressed by the Court of Appeal for Saskatchewan in R v Otto , 2006 SKCA 52 at para 22 that a person who requires 24-hour a day supervision for the indefinite future cannot be said to be reasonably likely to be controlled in the community. The resources needed to provide the level of supervision that might mitigate Mr. Leach’s risk to the public are not available, nor am I satisfied that even if they were available, they could be effective in preventing the chance encounters that Mr. Leach acts on. [ 107 ] Dr.

Metelista’s observation is worth capturing: It is also important to note that Mr. Leach has been provided with the [ sic ] numerous pertinent sexual offender programs, and he has had many professionals involved in his case over the years. He has also been provided with a variety of community supports that include probation/parole

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