R. v. Henwood, 2017 BCSC 2302

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Henwood, 2017 BCSC 2302 Date: 20171110 Docket: 159645-4 Registry: Victoria Regina v. Darren Eugene Henwood Restriction on Publication: Pursuant to s. 486.4(1) and s. 486.5(1) C.C.C. Before: The Honourable Mr. Justice MacKenzie Oral Reasons for Sentence Counsel for the Crown: P. Donnachie Counsel for the Accused: T. Bulmer Place and Date of Trial/Hearing: Victoria, B.C.

January 5-9, 2015; May 4-5, 2015; July 7-10, 2015; September 8-11, 2015; October 26-27, and 29, 2015; January 11 and 15, 2016; December 5-8, 2016; February 6-10, 2017; and March 20-21, 2017; Place and Date of Judgment: Victoria, B.C. November 10, 2017 [ 1 ] THE COURT: In October 2014, Mr. Henwood pleaded guilty to the following offences, all of which occurred in Victoria, B.C.

The first four are outlined in chronological order. [ 2 ] On Count 12, from January 1, 2001, to December 1, 2005, sexual assault of T.M.; Count 4, on or about November 29, 2011, sexual assault of E.G.; Count 13, from December 15, 2011, to January 5, 2012, sexual assault of D.L.; Count 14, on February 3, 2013, sexual assault of G.Z.; and lastly, Count 18, from October 1, 2011, to December 15, 2011, bestiality. [ 3 ] Following the guilty pleas, the Crown advised Mr. Henwood and the court that it would be applying to have Mr. Henwood designated as a dangerous offender pursuant to

Part XXIV of the Criminal Code . Notwithstanding the guilty pleas tendered by Mr. Henwood, there was a prolonged hearing on sentencing due to a dispute between Crown and defence over what the Crown submitted were aggravating circumstances. After considering the totality of the evidence, including the complainant's testimony, as well as Mr. Henwood's testimony, I found the Crown had proven beyond a reasonable doubt the facts that are indexed at 2016 BCSC 244 .

However, to put the present application in perspective, I will note the salient facts that I found the Crown had proven. [ 4 ] Pertaining to the complainant T.M., I found that during their five-year relationship, Mr. Henwood administered a substance in her drink on three separate occasions rendering her unconscious. Once she was unconscious, Mr. Henwood had anal intercourse with her. I also accepted T.M.'s evidence that when Mr. Henwood was hospitalized in 2004, after a very serious motor vehicle accident, he apologized to her for drugging her and then having anal sex with her while she was unconscious. [ 5 ] Mr.

Henwood and E.G. were also involved in a long-term relationship, one that was preoccupied with the world of prostitution, live sex shows, and multi-partner sexual activities. However, without going into any great detail as my finding of facts are available, I found E.G. to be, to a great extent, an unreliable witness. As a result, I did not accept her evidence that Mr. Henwood forced her into prostitution and their other lurid activities, including drug dealing. However, given Mr.

Henwood recorded an event where he had anal intercourse with E.G. when she was unconscious, as well as recording how he assisted one of their pet dogs to have sex with an unconscious E.G., I had no doubt as to Mr. Henwood's guilt on these counts, even though I was unable to conclude the Crown had proven beyond a reasonable doubt that Mr. Henwood had intentionally administered a substance for the specific purpose of rendering E.G. unconscious prior to having anal sex with her. [ 6 ] Turning to D.L., she testified she met E.G. and Mr.

Henwood on a dating site after responding to an advertisement, female looking for female. However, Mr. Henwood and E.G. were intent on forming a three-way relationship with D.L. The basis for Mr. Henwood's guilty plea on this count was that while D.L. consented to vaginal intercourse with Mr. Henwood, on one occasion while

she was "wasted", Mr. Henwood had anal intercourse with her without her consent. [ 7 ] Lastly, G.Z. testified she and Mr. Henwood were good friends. They had been involved in an intimate relationship but, according to G.Z., this relationship became platonic. Mr. Henwood testified they continued to be involved intimately. Be that as it may, one evening Mr. Henwood gave G.Z. a substance to help her "relax". However, G.Z. passed out after taking some of Mr. Henwood's prescription medicine. Mr.

Henwood then proceeded to have anal sex with her while she was unconscious and recorded this incident on his cell phone. [ 8 ] Having proven these facts beyond a reasonable doubt during the sentencing hearing, the Crown now applies to have Mr. Henwood designated a dangerous offender on Counts 4, 13, and 14, pursuant to s. 753(1) of the Criminal Code . [ 9 ] The Crown is not, however, asking that Mr. Henwood be sentenced to an indeterminate period of incarceration. Instead, the Crown seeks a lengthy conventional sentence, followed by a 10-year long-term supervision order.

In the alternative, the Crown submits the court should designate Mr. Henwood a long-term offender under s. 753.1 and impose a lengthy determinate sentence, followed by the supervision order. [ 10 ] The Crown acknowledges that it has the onus to prove beyond a reasonable doubt all the elements necessary to find that Mr. Henwood is a dangerous offender or, alternatively, a long-term offender. [ 11 ] On its primary application, the Crown is relying on s. 753(1) (a)(

i) and (1) (b), submitting the evidence establishes beyond a reasonable doubt that Mr. Henwood meets the criteria set out in both of these provisions such that, in accordance with the mandatory provisions of 753(1), he must be designated a dangerous offender. [ 12 ] At the same time, as I have noted, the Crown submits that pursuant to s. 753(4.1), the evidence adduced on the application should satisfy the court that there is a reasonable expectation that a sentencing measure less than an indeterminate sentence will adequately protect the public against Mr.

Henwood committing a serious personal injury offence in the future such that, as the Crown says, it is not necessary for him to be sentenced to an indeterminate period of incarceration. [ 13 ] Even though the Crown is not seeking an indeterminate sentence, Mr. Henwood argues that the Crown has not proven beyond a reasonable doubt that the predicate offences satisfy the pattern of behaviour contemplated by either ss. (1)(a)(

i) or (1)(b), or that there is a likelihood that Mr. Henwood will cause injury, pain, or severe psychological damage to others in the future. [ 14 ] Mr.

Henwood also submits that the actuarial risk assessment tools the Crown relies on to support its application are unreliable, as they apply to him, and should not be used to ground a finding that he poses an ongoing threat to the safety or physical or mental well-being of others. [ 15 ] He also submits that the assessor appointed under s. 752.1 of the Code was biased, applied unreliable risk assessment tools, and failed to consider background facts that would undermine the reliability of his opinion and the weight that should be accorded to his evidence. [ 16 ] The defence also submits that as Mr.

Henwood does not have a history of unsuccessful treatment for sexual offending, or indeed any other prior convictions of any significance, this militates against a finding that he should be designated a dangerous offender. This issue was, however, canvassed in R. v.

B.A.P. , 2005 BCCA 121 , where the court concluded that the absence of a criminal record or any past unsuccessful attempts at treatment did not, in and of itself, preclude a dangerous offender designation, given the number of assaults in that case on unconscious women. [ 17 ] At the same time, it is clear from the authorities I have been provided with that on this type of application, prior criminal convictions and/or a history of non-compliance with court orders are significant factors when attempting to assess future conduct. [ 18 ] Nevertheless, the defence submits the Crown has not established beyond a reasonable doubt that Mr.

Henwood meets the criteria for either a dangerous offender or a long-term offender designation and, as a consequence, a conventional sentence should be imposed, with Mr.

Henwood being credited for pretrial custody at one and one-half to one for the predicate offences and at two to one for the offence involving T.M., resulting basically in a disposition of time served, or close thereto, and a period of probation. [ 19 ] Alternatively, the defence submitted that a sentence in the range of two years would satisfy all the relevant principles of sentencing. [ 20 ] The Crown disagrees with the defence submission as to the length of a conventional disposition, as well as the credit Mr. Henwood should receive for pre-sentence custody.

The Crown submits credit at one to one would be appropriate, given the particular circumstances of Mr. Henwood's offending and because the primary objective under

Part XXIV of the Criminal Code is protection of the public. [ 21 ] Finally, even if Mr. Henwood is designated as a dangerous offender, the defence naturally agrees that in these circumstances, I should accept the Crown's submission that a sentencing measure short of an indeterminate sentence will adequately protect the public in the future. [ 22 ] While dangerous offender legislation has existed in Canada in one form or another for many years, the legislation was revised in 1997 and 2008. As Mr. Henwood committed the three predicate offences after the 2008 amendments came into force, the Crown's application in this case is governed by the post-2008 provisions, again found in

Part XXIV. [ 23 ] To avoid unduly complicating this situation, because of the timeframe on Count 12, the offence involving T.M., the Crown is not seeking a designation on this count or with respect to the charge of bestiality. [ 24 ] The significance of the latest legislative change is that prior to the 2008 amendments, the court had discretion on whether to

designate a person a dangerous offender, even where the requirements in s. 753(1) were met. However, this

section now requires thecourt to designate an offender a dangerous offender if the requirements are satisfied.

Moreover, s. 753(4) and (4.1) now create a statutorypresumption that an indeterminate sentence is to be imposed unless evidence adduced at the hearing persuades the court that a"reasonable expectation" exists that a lesser measure will adequately protect the public. [25] Thus, the amendments impose a higher standard than previously, in that an expectation is a belief that something will happen,as opposed to the mere possibility that it might happen: D.G.S., 2015 BCCA 111 at paragraph 30. [26] Due to these amendments, a trial judge no longer has discretion not to find a person a dangerous offender if that person fits thedefinition.

However, the court's discretion has been broadened as there are now more sentencing options for a person who does comewithin the dangerous offender definition. [27] As a result, the possibility of successful treatment now has limited relevance in determining whether the person is a dangerousoffender. However, the possibility of successful treatment is significant in choosing the appropriate disposition, as the Crown recognizesin the present application: see R. v. Boutilier, 2016 BCCA 235. [28] To satisfy the court that Mr.

Henwood is a dangerous offender, the Crown must prove beyond a reasonable doubt unders. 753(1)(a)(i): one, the predicate offence is a serious personal injury offence as listed in s. 752; and secondly, Mr. Henwood constitutes athreat to the life, safety, or physical or mental well-being of other persons based on evidence that demonstrates: (

a) a pattern of repetitivebehaviour of which the predicate offence forms a part, showing a failure to restrain the behaviour; and (

b) a likelihood of causing deathor injury or inflicting severe psychological damage on other persons through a failure in the future to restrain his behaviour. [29] On the other hand, to satisfy the court that Mr. Henwood is a dangerous offender under s. 753(1)(b), the Crown must provebeyond a reasonable doubt the predicate offence is a serious personal injury and, secondly, Mr. Henwood's conduct "in any sexualmatter" including that involved in the commission of the predicate offence, has shown: (

a) a failure to control his sexual impulses; and(

b) a likelihood of causing injury, pain, or other evil to other persons through a failure in the future to control his sexual impulses. [30] While the designation is now mandatory if the offender meets the designation of dangerous offender, as I have said, s. 753(4)gives the court the option of an indeterminate sentence of imprisonment, a conventional or determinate sentence of at least two years,and a long-term supervision order of up to 10 years, or simply a conventional sentence if an indeterminate sentence is not required toprotect the public from the commission of murder or a serious personal injury offence. [31] As a result, it is apparent Parliament intended that a broader group of offenders be declared dangerous offenders than theSupreme Court of Canada envisioned in R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309, where at 339, the court spoke of "avery small group of offenders." [32] In my view, this undermines the defence submission in the present case that, as Mr. Henwood should not be classified as "theworst of the worst," he should not be designated a dangerous offender. [33] The first question therefore is whether Mr. Henwood has pled guilty to the commission of a serious personal injury offence."Serious personal injury offence" is defined in s. 752 as including a sexual assault, as well as other

definitions. Given the two

definitionsin s. 752 and the circumstances surrounding the predicate sexual assault offences, it is clear the Crown has established Mr. Henwood hascommitted serious personal injury offences under both s. 752(

a) and (b), as properly acknowledged by defence counsel. [34] The next issue is whether the Crown can prove Mr. Henwood constitutes a threat to the life, safety, or physical or mentalwell-being of other persons on the basis of establishing a pattern of repetitive behaviour, showing a failure to restrain his behaviour, and alikelihood of causing injury or inflicting psychological damage through a failure in the future to restrain his behaviour. [35] In R. v.

Hogg, 2011 ONCA 840, the Ontario Court of Appeal considered the meaning of the phrase "a pattern of repetitivebehaviour" and referred with approval to our Court of Appeal decisions in R. v. Dow, 1999 BCCA 177, and Pike, 2010 BCCA 401, andconcluded as follows at paragraph 40: [40] To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elementsof unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future.

This will ensurethat the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in Newman] – that the last straw couldbe a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same inevery detail; that would unduly restrict the application of the section.

At paragraph 43: [43] Although the pattern differed in the detail of how the offences were carried out, the predicate and past offenses still represented apattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order tohave sexual gratification in the future. [36] In Hogg at paragraph 39, the court also made an important point about the number of offences, suggesting the need forremarkable similarity where only two offences were involved, but that fewer exact similarities were needed where four offences or morewere involved.

In this regard, however, the pattern of analysis cannot be reduced solely to the number of offences committed, but mustalso focus on the elements of similarity of the offender's behaviour: see Langevin in the Ontario Court of Appeal in 1984. [37] A pattern of repetitive behaviour can be established on either of two different bases: where there are similarities in terms of theoffences, and where the offences themselves are similar in terms of the degree of violence or aggression inflicted on the victim. [38] What is essential is that the past events of which the predicate offence must be one must show repetitive behaviour.

[ 39 ] In Dow , Lambert J.A. summarized the requirements of the pattern this way, paragraph 24: [24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure.

At paragraph 25: [25] ... it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but … at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. That is, after all, what is meant by a pattern. [ 40 ] The Crown submits that in this particular case, the threshold pattern requirements have been established.

To prove a failure to restrain his behaviour through a pattern of repetitive behaviour and a likelihood of future injury or the infliction of severe psychological damage to other persons, the Crown relies on the consistently similar circumstances surrounding Mr. Henwood's offending, as well as the medical evidence presented by both Dr. Tomita, a psychiatrist, and Dr. Dugbartey, a forensic psychologist called by the defence who met with Mr. Henwood on two occasions. [ 41 ] Dr.

Tomita was retained by the Forensic Psychiatric Services Commission to complete a court-ordered assessment under 752(1) of the Criminal Code . Dr. Tomita interviewed Mr. Henwood for about five hours and had access to his medical records, my findings of fact, the testimony on sentencing of T.M., D.L., and G.Z., and Mr. Henwood, in addition to other material contained in Exhibit 1 on the present application. [ 42 ] Dr. Tomita also confirmed that Mr. Henwood was cooperative during their interaction. [ 43 ] Based on this information, Dr. Tomita diagnosed Mr.

Henwood with a "paraphilic disorder" stemming from anomalous sexual activity preferences, the primary paraphilic preference being non-consensual anal intercourse with an unconscious or incapacitated partner. Dr. Tomita also noted some degree of antisocial personality and narcissistic features, but was unable to conclude that Mr. Henwood has a personality disorder. [ 44 ] Based on the results of an actuarial risk assessment, Dr. Tomita concluded Mr. Henwood was in the "low risk category for future sexual violence". Using another test that assesses a person's level of psychopathic features, Dr. Tomita concluded Mr.

Henwood's "level of psychopathic features could be described as moderate." [ 45 ] As far as these specific findings by Dr. Tomita are concerned, Dr. Dugbartey testified that "in general" he had no difficulties with Dr. Tomita's report, but after speaking to Mr. Henwood's father, Dr. Dugbartey would have scored Mr. Henwood's level of psychopathic features as low. Dr. Dugbartey also noted that the test used to score psychopathy was not specifically designed as a risk assessment for future violence or sexual offending. Dr. Dugbartey opined that Mr.

Henwood was a low risk to reoffend sexually. [ 46 ] In any event, Dr. Tomita concluded Mr. Henwood was a moderate risk to reoffend sexually and, as well, a low risk for future non-sexual violence. [ 47 ] In conclusion, Dr. Tomita opined that at this point in time, Mr. Henwood's risk to reoffend sexually cannot be managed without supervision. [ 48 ] In this regard, rather than read the specific paragraphs that I am relying on, as well as the totality of the report, I reference paragraphs 126 and 139 in Dr. Tomita's report: [126] Sexual deviance refers to a stable pattern of deviant sexual arousal.

Related terms and concepts include psychosexual disorder, deviant sexual preferences, paraphilia including specific paraphilias and perversion. Sexual deviation provides an appetitive motivation for sexual violence. People whose sexual violence is due, at least in part, to sexual deviation are at increased risk of reoffending. Mr. Henwood denies any anomalous erotic or sexual preferences; however, given the nature of his sexual offending and the similar pattern across the 4 victims, I would clinically infer that there is an anomalous erotic activity preference motivating these behaviours. One assumes that Mr.

Henwood could have had consensual anal intercourse with at least 3 of the victims (T.M., D.L., E.G.) but chose not to suggesting a preference for this type of sexual activity with an incapacitated or unconscious sexual partner. To what degree this is a preferred sexual activity is unknown and given the extent of his sexual lifestyle it was only a small part of his sexual activity repertoire.

Nevertheless, the fact that he had an active and open sexual life in which presumably most activities including anal intercourse were open to him, there does appear to be at least a moderate degree of strength in an anomalous sexual preference for anal intercourse with an incapacitated partner. To what degree videotaping these activities is a necessary part of this anomalous sexual activity is unclear. From a psychiatric perspective, I would assign Mr.

Henwood a diagnosis of Other Specified Paraphilic Disorder involving non-consenting anal intercourse with an unconscious partner. … [139] I am making this diagnosis based on the clinical features of Mr. Henwood's pattern of sexual offending. He does not report any preference for non-consensual anal intercourse with an incapacitated or unconscious partner directly but it is inferred from his pattern of repeated sexual behaviour of this nature across partners and time.

Given the openness of his sexual relationships and the assumption that consenting sexual activity involving anal intercourse and perhaps role playing a scenario with an unconscious partner would be available to him, it is notable that he repeatedly chose to enact this activity in real life. It is this feature that indicates the presence of a paraphilic interest that could be considered outside of a normative open or diverse sexual lifestyle as it involves involuntary and non-consenting sex.

Further, the element of videotaping the sexual act seems to have been an important element for him but how this element fits into his paraphilic interests is uncertain as he denies an interest in this activity. Regardless, in my clinical opinion there is sufficient evidence to conclude a paraphilic disorder is present.

[49] In this analysis, the Court of Appeal noted in Boutilier that determining an offender's future risk requires at least a limitedassessment of the treatability of that offender. [50] It is clear, given the expert evidence, that Mr. Henwood's treatment prospects are cautiously optimistic, but dependent on manyvariables, as is often the case. However, I am satisfied, given the limited role that treatability now plays at the designation stage, that asfar as ss. (1)(a)(

i) of the Code is concerned, the Crown has proven to the requisite standard a pattern of repetitive behaviour on the part ofMr. Henwood, showing he has failed to restrain his deviant sexual behaviour and under ss. (1)(b), a failure by Mr. Henwood to controlhis sexual impulses, and poses a threat to others in the future. [51] As Rosenberg J.A. said in Szostak in Ontario, under the present legislation: ... the possibility of successful treatment is of limited application in determining whether the person is a dangerous offender.

Thepossibility of successful treatment is significant in choosing the appropriate disposition. [52] However, as the defence has emphasized, the most difficult issue is whether the Crown has proven beyond a reasonable doubtthat there is a "likelihood" that Mr. Henwood will cause injury or severe psychological damage to other persons in the future, asmandated under s. 753(1)(a)(i), or a likelihood of causing injury, pain, or other evil to other persons through a failure in the future tocontrol his sexual impulses pursuant to ss. (1)(b). [53] In this regard, likelihood means probable.

That is, I must be satisfied beyond a reasonable doubt that Mr. Henwood willprobably conduct himself in the future such that he will cause injury, severe psychological damage, or pain to other persons.Notwithstanding the seriousness of the offences and the timeframe involved, given the lack of any prior criminal record, combined withthe expert evidence and the particular circumstances of Mr.

Henwood's offending, along with his guilty pleas which show a degree ofremorse, even though he challenged the allegation of providing drugs to the complainants for the sole purpose of rendering themunconscious, I am not persuaded the Crown has met the burden of proof beyond a reasonable doubt that there is a likelihoodMr. Henwood will commit a serious personal injury offence in the future. [54] As a result, the application to have Mr. Henwood designated a dangerous offender is dismissed. [55] That, however, does not end the matter. Even though I have not found Mr.

Henwood to be a dangerous offender, pursuant tos. 753(5), and as the Crown has argued in the alternative, I am entitled to treat this application as an application to find Mr. Henwood along-term offender and consider whether, on the evidence presented, the Crown can establish Mr. Henwood should be designated along-term offender, having regard to the provisions of s. 753.1. [56] In order for Mr. Henwood to be designated a long-term offender, the Crown must prove beyond a reasonable doubt that: (

a) itwould be appropriate to impose a sentence of two years or more for the predicate offences: (

b) there is a substantial risk Mr. Henwoodwill reoffend; and (

c) that there is a reasonable possibility Mr. Henwood's risk can be controlled in the community. [57] As will be seen in a moment, the first prerequisite is satisfied. As both the Crown and defence acknowledge, given theseriousness of these offences, an appropriate sentence prior to credit for presentence custody would be two years or more: see R. v. Aleck,2009 BCSC 1677, and H.W.R. (2001), 2001 BCCA 612 , 159 C.C.C. (3d) 97, the Alberta Court of Appeal. [58] Turning to the third prerequisite, as the Crown quite properly conceded in its dangerous offender application, given Dr. Tomita'sevidence, as well as Dr.

Dugbartey's evidence, there is "a reasonable expectation" the public can be protected in the future fromMr. Henwood committing a serious personal injury offence short of an indeterminate disposition. As I have mentioned, s. 753.1(c)requires the court to be satisfied by the evidence adduced during the application that there is a “reasonable possibility” of eventualcontrol of Mr.

Henwood's risk in the community, a lower standard than the reasonable expectation test in the dangerous offenderprovisions, as a reasonable expectation is a belief that something will happen, as opposed to a mere possibility of eventual control. [59] Further, neither s. 753(4.1) nor s. 753.1(1) require the evidence to show that treatment will "cure" an offender before the courtcan impose a sentencing measure less than an indeterminate period of incarceration.

Rather, what the sections require is an evidentiaryfoundation to support an assertion that either a reasonable expectation or a reasonable possibility exists that an offender's risk can bemanaged to an acceptable level in the community so as to protect the public. [60] In the present case, as I have mentioned, the Crown has acknowledged that the expert opinions of both Dr. Tomita andDr. Dugbartey have established an evidentiary foundation such that a reasonable expectation exists that a lesser measure rather than anindeterminate sentence will adequately protect the public. [61] In this regard, Dr.

Tomita reported the following at 150: [150] Mr. Henwood's risk for future violence involves a broad victim group, adult females, and there are warning signs that can bemonitored. In his case, it is situations in which he is with a potential female victim in a context where he could provide intoxicants thatrender a victim unconscious or with a victim who was using substances or had some type of medical condition that rendered thempredictably unconscious in which he might [offend].

At 151: [151] This is his first time being sanctioned for criminal offending and he appears to be the type of individual who could be expected tobe reasonably compliant with supervision. His risk is likely to manageable if he is under federal parole supervision in the community. At 153: [153] If he receives a determinate sentence and completes appropriate treatment, there is a reasonable possibility that his risk can bemanaged in the future including after the expiry of a determinate sentence, assuming he has some degree of risk reducing treatment

effect. [62] Given this evidence and the Crown's acknowledgment that there is a reasonable expectation the public can be protected by adeterminate sentence, it follows that the more modest standard that there be a reasonable possibility of eventual control of risk to thecommunity has likewise been established. [63] I now turn to the third factor under the long-term offender provisions. In the dangerous offender analysis, the vexing question ismeasuring the unquantifiable, that is predicting the likelihood of future offences. The same difficulty arises when considering along-term offender designation.

However, under the long-term offender provisions, what the Crown must establish is that Mr. Henwoodposes "a substantial risk" of reoffending. [64]

Section 753.1 provides two methods by which the substantial risk of offending may be established. Subsection (2) provides onemethod where an offender has been convicted of sexual assault, among many stipulated offences. In addition to having committed suchan offence, the evidence must establish a "likelihood" that Mr. Henwood will cause injury, pain, or severe psychological damage to otherpersons in the future. As we have seen, essentially the same test as under the dangerous offender provisions. [65] I have, however, found the evidence here falls short of establishing that it is probable or likely Mr.

Henwood will cause injuryor damage to others in the future. In other words, the conclusive presumption under subsection (2) that there is a substantial riskMr. Henwood will reoffend is not available to the Crown. [66] But again, that is not the end of the analysis. In R. v. Weasel, 2003 SKCA 131, a decision of the Saskatchewan Court of Appeal,Justice Cameron concluded at paragraph 56: ... subsection (2) is to not to be seen as defining the term “substantial risk” appearing in subsection 753.1.

Rather, it is to be seen ascreating a conclusive presumption of “substantial risk” in those circumstances to which paragraphs (

a) and (

b) of the subsection areaddressed, leaving the issue of such risk in other circumstances to be determined without the aid of the presumption. [67] That is, the Crown is not restricted in its application for a long-term offender designation by establishing a particular offence hasbeen committed and there is a likelihood of causing injury, pain, evil, or severe psychological damage in the future. [68] Similarly, in R. v. Jeurissen, 2014 BCSC 1718, Justice Ker cited our Court of Appeal in R. v.

McLeod, 1999 BCCA 347, andconcluded at paragraph 55: [55] However, a long-term offender designation is not restricted by the ambit of s. 753.1(2). In R. v. McLeod … Prowse J.A.addressed the relationship between s. 753.1(1) and (2) and rejected the argument that long-term offender designations are only availablein cases in which an offender stands convicted of one of the sexual offences listed in s. 753.1(2)(a). That argument was based on theproposition that s. 753.1(2)(

a) exhaustively determines the circumstances in which an offender will be found to pose a substantial risk toreoffend. At para. 26, Prowse J.A. concluded that all s. 753.1(2)(

a) does is establish a presumption. If the conditions contained thereinare established, the court must find that the offender poses substantial risk to reoffend. However, if the conditions in s. 753.1(2)(

a) arenot met, while there is no presumption, the court must still go on to determine whether the criteria in s. 753.1(1) are satisfied ... Thus asubstantial risk to reoffend can be demonstrated without aid of the presumption ... [69] Simply stated, if the Crown cannot meet the evidentiary onus outlined in s. 753.1(2)(b)(

i) or (ii), it cannot rely on thepresumption of a substantial risk to reoffend, even though the offender has been convicted of an enumerated offence. [70] That means the question now is, has the Crown proven beyond a reasonable doubt that there is a substantial risk Mr. Henwoodwill reoffend in the future, as outlined in s. 753.1(1)(b). In this regard, the Criminal Code does not define the phrase "substantial risk ofoffending" in either s. 753 or s. 753.1. As a result, in J.W.R. v.

British Columbia (Attorney General), 2017 BCSC 1272, I was referred tothe Concise Oxford Dictionary, 8th Edition, which defines "substantial" as "of real importance or value" or "having substance, real" and"risk" as "a chance or possibility of danger, loss, injury, or other adverse consequences." [71] I also noted in J.W.R. that: … the Concise Oxford English Dictionary, 11th ed., defines "substantial" as "real and tangible rather than imaginary" and defines "risk"as "the possibility that something unpleasant will happen." Based on the authorities referred to above, and the scheme and purpose ofPart XXIV of the Criminal Code, it is clear s. 753.2 is focused on "risk", and that substantial risk means a real, not imaginary, risk of thepossibility of physical or psychological harm to other persons that is beyond the merely trivial or annoying. (See Winko ... (SCC), [1999] 2 S.C.R. 625 …) In the end, substantial risk to reoffend does not mean a certainty or even a likelihood or probability to reoffend. [72] As the court in R. v.

Davis, 2012 MBQB 9, stated at paragraph 65: [65] First, I note that the concept in a long-term offender analysis of "a substantial risk” that the offender will reoffend is materiallydifferent than the concept in the dangerous offender analysis at play here, of an offender constituting a threat to life or safety based onevidence of "a likelihood" of committing further danger or harm which is based on a pattern of behaviour.

The requirement of"substantial risk" in a long-term offender analysis is broader and thus potentially captures more conduct or behaviour. [73] As a result, I conclude that a substantial risk is the real possibility of reoffending. Establishing a possibility is a much lowerevidentiary burden than establishing a probability or likelihood. [74] Therefore, while I am not persuaded the Crown has established the probability or likelihood of Mr.

Henwood reoffending,given the numerous offences he has pled guilty to, their particular circumstances, and the expert evidence, I am persuaded the Crown hasproven there is a real possibility, that is there is a substantial risk, Mr. Henwood will reoffend in the future.

[ 75 ] As the Crown has submitted, Mr. Henwood has committed serious deviant sexual assaults over many years against four different women with whom he had ongoing relationships in varying degrees, resulting in Dr. Tomita diagnosing Mr. Henwood with a paraphilia disorder. [ 76 ] As a result, I am satisfied the Crown has established beyond a reasonable doubt the requisite criteria in s. 753.1(1) for Mr. Henwood to be designated a long-term offender and I so designate. [ 77 ] That might be perhaps an appropriate moment to take the morning recess, give Mr.

Henwood a chance to take a break, and then we will come back and I will deal with sentencing. Thank you. [ 78 ] THE CLERK: Order in court. (PROCEEDINGS ADJOURNED AND RECONVENED) [ 79 ] THE COURT: Thank you. Just for the record, before I proceed, as I mentioned at the outset, the long-term offender designation will pertain to Counts 4, 13, and 14. [ 80 ] Having found Mr. Henwood's conduct has met the requirements of a long-term offender under s. 753.1(1), and that a sentence of two years or more is appropriate, I now must impose a conventional sentence for the offences to which he has pleaded guilty.

In this regard, the court in Smarch , 2015 YKCA 13 , summarized the principles governing the sentencing of a dangerous offender: [46] There is no dispute that the primary purpose of sentencing in the dangerous offender context is the protection of the public: R. v. Johnson ... In Johnson , the Court confirmed, however, that dangerous offender proceedings, as part of the sentencing process, "must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718.2 " of the Criminal Code ...

The Court further cited Lyons ... for the proposition that preventive detention “simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased” ... [47] A … judge must also consider “the possibility that a less restrictive sanction would attain the same sentencing objectives that a more restrictive sanction seeks to attain”: Johnson … With respect to the principle of proportionality in dangerous offender sentencing …. this Court held, “a proportionate sentence is one that not only balances the nature of the offence and the circumstances of the offender, but also gives considerable weight to the protection of the public”: Armstrong at para. 72. … [ 81 ] I am satisfied the same principles apply when imposing a sentence on a long-term offender. [ 82 ] As the court in Smarch indicates, a

Part XXIV application is indeed part of the sentencing process, such that I must consider the purposes and principles of sentencing found in ss. 718 to 718.2 of the Criminal Code . The general principles of sentencing described in s. 718 of the Criminal Code are: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Section 718.1 provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2(

d) and (

e) also provide that: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders … [ 83 ] The Crown has provided several authorities in support of its position on sentence.

The defence does not quarrel with the general range of sentence other courts have imposed for similar offences, but it quite properly reminds the court that sentencing is an individual exercise and must reflect the particular circumstances of the offence and the offender. [ 84 ] As I have noted, the Crown submits that under either designation, a fit sentence would be a lengthy penitentiary term with a 10-year long-term supervision order. The Crown says these are particularly serious offences, as Mr.

Henwood perpetrated the sexual assaults on unconscious partners and, as a result, a sentence of three to four years on each count of sexual assault to be served consecutively would be appropriate, along with a one- or two-year consecutive sentence on the charge of bestiality, for a global sentence in the range of 12 to 18 years. [ 85 ] In support of its position, the Crown referred to several decisions. In R. v.

Dycko , the offender appealed a four-year sentence after being convicted at trial for sexual assault and administering a date-rape drug rendering the victim unconscious and enabling him to commit the sexual assault. The Court of Appeal observed that the offender there was steadily employed, had two prior criminal

convictions for property and motor vehicle related offences, and that otherwise he was apparently of good character. Most importantly, the court found the trial judge erred in treating the offender's plea of not guilty as an aggravating factor and reduced the sentence to three years for the sexual assault and three years for administering the drug. [ 86 ] In Goodliffe , a jury convicted the offender of sexual assault. The offender was 30 years old and was a guest at the 17-year-old victim's apartment. She came home intoxicated, at which point either the offender or the victim's boyfriend gave her GHB.

The offender knew the victim had taken the drug and she would almost certainly become unconscious.

The court noted that the offender acted with callous disregard for the victim and sexually assaulted her when he knew she was in a vulnerable state and clearly unable to consent. [ 87 ] Given these aggravating factors, even though the offender had no criminal record and was a good prospect for rehabilitation, the court determined a fit sentence was 30 months' imprisonment. [ 88 ] In Field , three-year sentences to be served concurrently were imposed on an aboriginal offender after a jury convicted him of sexual assault and administering a stupefying drug.

The offender had an on-again/off-again relationship with the victim and on the night in question put Zopiclone in the victim's wine, rendering her unconscious.

The offender had unprotected intercourse with the victim throughout the night. [ 89 ] The court in Field described a number of aggravating circumstances which included the offender's somewhat dated criminal record of criminal conduct toward an intimate partner, the element of planning in the offence, the offender took full advantage of the victim's incapacity and lack of awareness, the offender breached the victim's trust in him, and the offender exposed the victim to health risks through administering the drug and having unprotected sex. [ 90 ] The court also noted mitigating circumstances, including his steady work history and efforts to upgrade his training, his ongoing relationship with his teenage daughters, his role as a caregiver to his elderly mother, and the relative lack of criminal convictions. [ 91 ] In Field , the court referred to Saadatmandi and Tayyebi, an unreported decision, where the court sentenced two offenders for the sexual assault of an 18-year-old victim.

In the latter case, the court noted the aggravating factor that both offenders had unprotected sex with the victim. The court also noted that giving the victim GHB without her knowledge or consent undermined clearly her right to choose whether to engage in any sexual activity and was a reprehensible and gross violation of the victim's personal dignity and autonomy. The court sentenced Mr. Saadatmandi to four years and Mr.

Tayyebi to three years in jail. [ 92 ] In Berry , the court sentenced the offender for sexual assault, assault, and voyeurism in relation to one victim, and for voyeurism in relation to a second victim. The offender and first victim were in a common law relationship during the period of the offences. On the sexual assault charge, the offender had video-recorded himself sexually touching and digitally penetrating the victim without her consent while she was either asleep or unconscious.

The court described the acts as extremely intrusive and determined a fit sentence for the sexual assault was two years and one year consecutive on the voyeurism charge. [ 93 ] In Bell , an Ontario decision, the court sentenced an offender to four years after convicting him of two counts of sexual assault and two counts of administering a noxious substance. The offender was a social acquaintance with the victim and her boyfriend, the male victim.

He was drinking with the pair at the female victim's apartment when he provided a drug and put it in the drinks, and after they were unconscious, he sexually assaulted them. [ 94 ] Again, the court noted several aggravating factors, including the advantage the offender took of the victim's semi-intoxication to render a substance in order to satisfy his own sexual desires, and the negative long-term effect on the complainant.

At the same time, there were mitigating factors: no prior criminal record, he was relatively young, he presented a low risk to reoffend, and he had a relatively stable employment history. [ 95 ] I pause here to note that in the present case, in addition to the aggravated circumstances of having anal intercourse with unconscious partners, I agree with Crown counsel that, especially with T.M., Mr.

Henwood's offences involved a breach of trust, given the consensual relationships with each complainant. [ 96 ] As far as sentencing on the charge of bestiality is concerned, in D.L.W. , the court discussed several authorities. However, in my view, they are somewhat limited, given the Supreme Court of Canada overturned the conviction on the basis that the trial judge erred in concluding that bestiality did not require penetration. Nevertheless, I agree with the Crown that a one- to two-year sentence for the bestiality offence would be appropriate.

The only question is whether it should be concurrent or consecutive to the sentence on Count 4, the sexual assault of E.G., as the defence has submitted. [ 97 ] The overall defence’s position on sentence is dramatically different. In this regard, the defence understandably emphasizes that Mr. Henwood is before the court as a first-time offender, which is significant when I consider his difficult upbringing in Swaziland, where he spent his early years witnessing the violence and racism of the South African apartheid society in the '80s. Mr.

Henwood arrived in Canada with his father and siblings and eventually settled in Victoria. His father has since returned to Africa. Prior to testifying, Dr. Dugbartey spoke to Mr. Henwood's father, who advised Dr. Dugbartey that his son presented no difficulties as a youth, a relevant factor in Dr. Dugbartey's critique of Dr. Tomita's report and Mr. Henwood’s risk assessment. [ 98 ] Moreover, up until the last few years, Mr. Henwood has had a relatively good work history in trucking and construction.

However, since his serious motor vehicle accident in 2004, he has been involved in what has been described as a highly-sexualized lifestyle, both for profit and otherwise, involving many partners, short-term and long-term, as well as drug dealing, even though he has never been convicted of any such offences. [ 99 ] The defence submits that, as Mr. Henwood is now 44 years of age with no criminal record, the fundamental principles of sentencing would be met by a much more modest disposition, even before pre-sentence custody is considered.

In this regard, defence counsel acknowledges that, given the seriousness of these offences, denunciation and general deterrence are important principles, but says Mr. Henwood's rehabilitation must also be a primary consideration. I do not disagree with this general proposition. I do not,

however, agree that Mr. Henwood's moral culpability is reduced when he says his offending was the result of his misguided sense of entitlement, given he was in consensual relationships in varying degrees with each complainant. [ 100 ] As Crown counsel has said, being in an intimate, consensual relationship did not give Mr. Henwood any right to commit these offences. [ 101 ] At the same time, the defence reminds the court that Mr.

Henwood entered guilty pleas, but again quite properly acknowledges the obvious point that as there was a dispute as to the facts, necessitating the complainants testifying, the pleas here would not attract the same degree of mitigation as would otherwise be the case, that is, if there were guilty pleas alleviating the necessity of any complainant from testifying. [ 102 ] However, I agree with the defence that Mr. Henwood's denial of some aspects of the Crown's assertions involving E.G. and D.L. were borne out by my ultimate findings of fact, such that Mr.

Henwood's denial of some of the alleged aggravating circumstances was justified. [ 103 ] As a result, I find Mr. Henwood's guilty pleas a mitigating factor to a certain extent. [ 104 ] As far as the appropriate range of sentence is concerned, the defence again does not disagree with the Crown's general position as to the appropriate range of sentence for a single incident of sexually assaulting an unconscious woman. What the defence submits is that the offences involving E.G. and D.L. should be concurrent, as D.L. was living with Mr.

Henwood and E.G. at the time and that the bestiality charge should be a concurrent disposition as well. [ 105 ] Finally, the defence submits a long-term supervision order for 10 years is not necessary and that the maximum period of probation would accomplish the same objectives as a long-term supervision order. Alternatively, the defence submits a much more modest supervision order would be appropriate. [ 106 ] Taking into consideration all of the aggravating and mitigating circumstances, especially Mr.

Henwood's lack of prior criminal convictions, and the fact that this is not a case where he has had prior counselling and treatment and then reoffended, as is so often the case when a person is designated as either a dangerous offender or long-term offender, and all the relevant principles of sentencing outlined in s. 718 and s. 718.1, I am satisfied the fundamental principles of sentencing require the court to impose the following sentences: on Count 12, the sexual assault of T.M., four years; on Count 4, the sexual assault of E.G., three years; Count 13, the sexual assault of D.L., three years; Count 14, the sexual assault of G.Z., four years; and the bestiality charge, one year. [ 107 ] As Mr.

Henwood has pled guilty and I have determined these to be fit sentences when considered individually, I must now determine whether the sentences should be served consecutively or concurrent with each other. [ 108 ] In this regard, Crown counsel submits that as the offences are completely separate as far as place and time, except perhaps the situation involving D.L. and E.G., and involve different complainants over a significant number of years, the sentences should be consecutive.

On this point, the recent comments of our Court of Appeal in K.V.E ., 2013 BCCA 521 , are instructive: [41] The Crown has referred to a number of cases that consider the impact of imposing concurrent sentences where there are multiple victims. In Abrosimo , at para. 32, Justice Frankel noted that “consecutive sentences were appropriate as the two incidents are wholly unconnected”. Frankel J.A. held that if the sentencing judge had imposed concurrent sentences, it would have the effect of imposing no sentence at all for the offences committed against one of the victims. [42] There were four victims in R. v.

Maliki ... The court commented that to treat the offences as “a singular event” would allow the offender to commit crimes “cheaper by the dozen”... The Manitoba Court of Appeal overturned a concurrent sentence on the basis the sentencing judge committed a “free ride error” in dealing with sentencing when there are multiple victims ... [43] The Crown referenced R. v.

G.P.W. … at para. 116, where Rowles J.A. stated: “a person convicted of separate and distinct offences should not get special consideration simply because the offences, in which the same or similar conduct is repeated, are committed against the same people in a domestic setting”. [ 109 ] As the offences here involved four separate complainants over different time periods, I am satisfied these are "wholly unconnected incidents" and, as a result, there is, in my view, no doubt the sentences pertaining to each complainant must be consecutive. In my view, to do otherwise would effectively grant Mr.

Henwood a sentencing discount for having traumatized and adversely affected four lives instead of one. [ 110 ] Given all of the circumstances surrounding each offence, I agree with the Crown that the sentences should be consecutive. These five consecutive sentences total 15 years. [ 111 ] Even though the Crown says its suggested range of 12 to 18 is appropriate, learned Crown counsel quite properly conceded the principle of totality must be considered if consecutive sentences are imposed on the five individual offences. [ 112 ] On this point, as Mr.

Henwood committed separate and distinct offences, I have a duty to consider his overall culpability as Crown counsel has acknowledged. This principle of totality has been summarized by our Court of Appeal in Li , 2009 BCCA 85 , where at paragraph 26 the court states: [26] Whether sentences for multiple offences are made consecutive or concurrent, it is the task of the sentencing judge to fix an appropriate global sentence that reflects the specific circumstances of the offences and the unique circumstances of the offender.

The importance of this balancing is reflected in the principle of proportionality, which has been codified in s. 718.1 of the Criminal Code under the heading “fundamental principle”: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[27] The principle of totality also factors into the imposition of an appropriate aggregate sentence for multiple offences. In M.(C.A.) , Lamer C.J.C. described the principle: [42] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A.

Thomas describes the principle in Principles of Sentencing ... at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”. [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences.

The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle.

If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. [ 113 ] The Crown submits that, having regard to this principle of totality, an appropriate global disposition in this case would be in the range of eight to twelve years, but that due to the aggravating circumstances, the sentence should be at the higher end. On this point, however, I have accounted for the aggravating circumstances in determining what I find to be a proper sentence for each individual offence.

As a result, I find that a global disposition towards the lower end of the range the Crown has suggested does satisfy the principles of sentencing, including denunciation, deterrence, and rehabilitation. [ 114 ] As a result, there will be a global aggregate sentence of nine years. [ 115 ] However, as our Court of Appeal pointed out in P.P.H. , the length of the individual sentences must be adjusted in order to arrive at an appropriate global sentence.

Therefore, the sentences will be adjusted as follows: Count 12, three years; Count 4, two years; 13, two years; Count 14, one and one-half years; Count 18, half a year, for a total of nine years. Those sentences are obviously consecutive. [ 116 ] However, it is necessary to deduct from this global sentence of nine years the time Mr. Henwood has been in custody since his arrest on March 20, 2013, to today's date, November 10, 2017. According to both Crown and defence counsel, this period amounts to 1,695 days.

For the benefit of the public at large, the Supreme Court of Canada in Summers , 2014 SCC 26 , has mandated that sentencing decisions go through this mathematical formula almost to the day. Having said that, the Crown naturally agrees that these many days in custody should reduce Mr. Henwood's sentence, but the Crown submits that in this particular case, Mr. Henwood should not be given enhanced credit for pre-sentence custody. [ 117 ] On this point, the defence has to establish that Mr. Henwood should receive enhanced credit as opposed to a straight one-to-one calculation.

This is clearly not an insignificant factor as the difference could be between two to four years' incarceration. At the same time, as Crown counsel has properly acknowledged, because Mr. Henwood committed the offence involving T.M. prior to the Truth in Sentencing Act which came into force on February 22, 2010, Mr. Henwood could have been eligible for enhanced credit at two-to-one, as generally occurred prior to 2010, depending on the particular circumstances in any given case.

On this point, see the Ontario Court of Appeal analysis in R.S. , 2017 ONCA 141 . [ 118 ] In my view, in most circumstances, there is little doubt that the court should grant enhanced credit. What complicates the analysis in the present case is that Mr. Henwood has now been designated a long-term offender and, as such, the prospects of an early release are somewhat more problematic than with other offenders. [ 119 ] This factor is relevant in determining what amount of credit the court should assign for any dead time as outlined in Summers .

In this analysis, it is important to recall the direction of the Supreme Court of Canada in Wust , 2000 SCC 18 , at paragraphs 44 and 45 : 44. I see no advantage in detracting from the well-entrenched judicial discretion provided in s. 719(3) by endorsing a mechanical formula for crediting pre-sentencing custody. As we have re-affirmed in this decision, the goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence … 45. … “Dead time” is “real” time.

The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody. [ 120 ] The Supreme Court of Canada confirmed this general observation in Summers at paragraph 17 , when it said, "A judge retains the discretion to deny credit at the enhanced rate.” At the same time, as I have mentioned, unless an offender will be denied early release, generally, in my view, a court should award enhanced credit based upon presentence detention. [ 121 ] The Court of Appeal in Hopley , 2015 BCCA 499 , discussed this issue, after the sentencing judge there concluded Mr.

Hopley should only receive credit of one to one for presentence detention, given he was designated a long-term offender and sentenced to just over seven years. On this point, the sentencing judge declined to give Mr. Hopley enhanced one and one-half credit to one, so as to ensure his sentence was long enough to allow him to "complete the programming in the institution that should help his rehabilitation". A similar conclusion was reached by the Saskatchewan Court of Appeal in Cote , 2015 SKCA 52 .

At paragraph 81, the court said: [81] There is nothing novel about courts expressly limiting pre-trial remand credit in the context of long-term offender sentencing to ensure adequate treatment can be achieved while incarcerated. At paragraph 82, the court said this conclusion:

… is in line with the comments in para. 79 of Summers , that all relevant circumstances must be considered when determining remand credit. A very relevant circumstance would include consideration of how long Mr. Cote would have to remain in custody to provide for treatment programs in order to adequately protect the public once he is released. [ 122 ] In addition, the Court of Appeal in Hopley upheld the sentencing judge's decision because, as a long-term offender, coupled with Mr. Hopley's extensive criminal record, the court was of the view that early release was unlikely.

Again, the loss of eligibility for parole or early release is one of the significant factors the Supreme Court of Canada noted in Summers that would justify pre-sentence credit at a rate of one and one-half to one. [ 123 ] While the court in Summers stated that there will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available, I do not read this as saying a person designated as a dangerous or long-term offender should never receive enhanced credit for dead time. [ 124 ] On this point, Ms.

Ash, an employee of the Correctional Services of Canada, testified in the present case that inmates who have been designated dangerous or long-term offenders are still eligible for all the early release provisions, just like any other inmate. Whether they are actually released early is an entirely different matter and will, of course, depend on their compliance with all the directions surrounding counselling and treatment, and their overall performance in custody. [ 125 ] In Hopley , the Court of Appeal concluded that the trial judge was entitled to find that, based on the evidence before her, it was unlikely Mr.

Hopley would qualify for early release and therefore, in those circumstances, there was "no reason to assign enhanced credit for the meaningless lost opportunity." [ 126 ] In this analysis, I accept that, due to Mr. Henwood's severe physical difficulties necessitating the use generally of a wheelchair and a daily ingestion of several prescription drugs to allow him to function, his time on remand has been difficult. I am also advised by defence counsel that Mr. Henwood spent 21 weeks in segregation. At the same time, I am mindful of the court's comments in Hopley that the principal focus of sentences under

Part XXIV is the protection of the public, as well as the comments of the court in Smarch . [ 127 ] Being guided by all of these principles, and given the totality of the evidence in the present case, I am satisfied that Mr. Henwood would likely qualify for early release. I also find that granting enhanced credit, given the sentences I have imposed, is not contrary to the fundamental principles of sentencing and indeed will satisfy the concerns outlined in Cote and Hopley that there will be an adequate period of incarceration that would give Mr.

Henwood the opportunity for counselling and treatment before being released into the community. [ 128 ] I also simply note in passing that in R. v. Aleck , Justice Ehrcke credited Mr. Aleck's pre-sentence custody at a ratio of one and one-half to one, even though Mr. Aleck was designated a long-term offender. [ 129 ] As a result, I am satisfied Mr. Henwood has established he is entitled to enhanced credit at one and a half to one. However, for the general reasons expressed in Hopley and Cote , I am not persuaded it would be appropriate to exercise my discretion and give Mr.

Henwood a two-to-one credit on the sentence pertaining to T.M. [ 130 ] Therefore, I will reduce the sentence of nine years or 3,285 days, by 2,543 days for time served on remand, for a global sentence of 742 days or two years and 12 days of new time. On this particular point, any classification is obviously in the purview of the Correctional services, but if my math is correct, and I think it is, Mr. Henwood will be within the federal system, I simply invite Corrections to consider classification to perhaps William Head Institution, in this jurisdiction, because of the numerous medical specialists that Mr.

Henwood has access to in this community, but I think that is all I can say on that particular issue. I assume the determinative factor in any classification will be the availability of appropriate counselling and treatment programs, having regard to Mr. Henwood's personal circumstances and the offences for which he is being sentenced on. [ 131 ] When I am finished with my sentencing, I am going to give counsel a brief opportunity to see if I have made any mathematical errors in my calculations. [ 132 ] The next question centres on the issue of a long-term supervision order.

In Ipeelee , 2012 SCC 13 , the Supreme Court of Canada stated that there are two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of reoffence; and (2) rehabilitating the offender and reintegrating him or her into the community. [ 133 ] Under the present legislation, the court must sentence a dangerous offender or a long-term offender to a determinate period of incarceration of at least two years, subject to dead time, followed by a long-term supervision order for a period that does not exceed 10 years, the purpose again being to protect the public from the threat that the offender currently poses, at the same time focusing on rehabilitation. [ 134 ] In assessing this issue, it is important to recognize that a long-term supervision order is not intended to be penal, in the sense of being designed to achieve goals of deterrence or denunciation.

Rather, the supervision period is intended to accomplish the goal of preventing future crimes: J.W.R. , 2010 BCCA 66 . [ 135 ] On this point, once a long-term supervision order expires, the National Parole Board ceases to have any authority over an offender, and unless some other restrictive order is made under the provisions of s. 810.2 of the Criminal Code , an offender would not be subject to any restraints or controls. At the same time, s. 753.2 permits an application by an offender such as Mr.

Henwood to apply to the court to reduce the period of supervision or terminate it altogether. [ 136 ] In considering Mr. Henwood's rehabilitation and reintegration into society, I acknowledge the defence assertion that because of Mr. Henwood's significant medical issues and relative immobility, his ability to reoffend is reduced. However, as the Crown has pointed out, Mr.

Henwood was able to commit the more recent offences, even though he was affected by significant physical limitations. [ 137 ] Given all of the circumstances surrounding these offences, coupled with the medical evidence, and recognizing the need for

community supervision once Mr. Henwood is released, I am satisfied it is appropriate to order there be a five-year long-term supervision order. In my view, a supervision order of this duration would satisfy the dual objectives outlined in Ipeelee . [ 138 ] Finally, pursuant to the mandatory provisions of s. 490.012(1) of the Criminal Code , as Mr.

Henwood has been convicted of more than one offence of sexual assault, it is mandatory that there be a lifetime order pursuant to the Sex Offender Information Registration Act . [ 139 ] There will be a DNA order, and a prohibition order as mandated by s. 109 of the Criminal Code , 10 years for the items listed relevant to a 10-year prohibition and a lifetime prohibition with respect to the items related to a lifetime prohibition. [ 140 ] The victim surcharge will be payable forthwith and the brief sentence in lieu of payment will be concurrent. [ 141 ] Pursuant to s. 760 of the Criminal Code , there will be an order that a copy of the reports and testimony given by Dr.

Tomita and Dr. Dugbartey, and any observations of the court with respect to the reasons for finding Mr. Henwood a long-term offender, together with a transcript of the trial, will be forwarded to the Correctional Service of Canada. [ 142 ] I believe that deals with everything but, as I said, Mr. Bulmer, Ms. Donnachie, if there is any disagreement with respect to my mathematical calculations, let Mr. Registrar know and I will return.

If I do not hear from you on that point, I will assume I am correct, and if I do not hear from you with respect to any other issues, that is my decision on this particular matter. [ 143 ] Thank you, Mr. Bulmer, thank you, Ms. Donnachie. [ 144 ] MR. BULMER: Thank you. [ 145 ] MS. DONNACHIE: Thank you. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D. MacKenzie