R. v. Slade, 2015 ONCJ 8

COURT FILE No.: 12-252 Citation: R. v. Slade , 2015 ONCJ 8 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — STEVEN ERNEST SLADE Before Justice Lloyd Dean June 19, September 3, 9, 17, 18, 19, 20, November 13, 15, 2013; April 7, June 3, and December 18, 2014 GARY NIKOTA ............................................................................................................ for the Crown KEVIN SHANNON ................................................................................................... for the Offender RULING ON DANGEROUS OFFENDER APPLICATION ( Note : Prior to distributing this written ruling the court gave an oral

summary of this ruling December 18, 2014, indicating written reasons would follow.) 1 These proceedings, as is obvious from the passage of time, have been protracted in length, as well as legally complex and most challenging, for not only this court but for both counsel as well. 2 On June 19, 2012, Mr. Slade pled guilty to Internet Luring and Breach of Probation. The offences took place between the 16 th day of January 2012 and the 1 st day of February 2012. 3 Following the plea of guilty to these charges the Crown, with the consent of the Attorney General, brought an Application, dated January 9 th , 2013 pursuant to the provisions of

section 753 of the Criminal Code (“ Code ”) to have Steven Slade declared a dangerous offender or in the alternative a long-term offender. 4 An agreed statement of facts was read in and filed as an exhibit. Facts of predicate offence 5 On October 22 nd , 2009, Mr. Slade pled guilty to distribute child pornography under

section 163.1 of the Code , Internet luring under

section 172.1, counselling an indictable offence under section 464(1) (two counts), and failing to attend court. 6 On November 17 th , 2009, Mr. Slade was sentenced to two years in the federal penitentiary followed by three years’ probation. He was held until a few days before his Warrant Expiry Date. On his release from custody he was bound by the probation order.

One of the conditions being that he was not to possess or use a computer, computer systems, services or programs or mobile computer devices or any other device that has a capacity of accessing the Internet except as required for employment or education purposes, the necessity of which is to be confirmed and approved in writing by his probation officer. In addition, he was also bound by a

section 161 order prohibiting the accused from accessing the Internet to contact a person under sixteen years of age. 7 On his release, November 16 th , 2011, Mr. Slade moved to Toronto. On Friday, December 2 nd , 2011, seventeen days after his release from the federal penitentiary, Mr. Slade attended at the Toronto Public Library, accessed the Internet and contacted a Facebook

profile of a young man whom he believed to be a fifteen year old boy. In fact, this Facebook profile was a police created Facebook profile (“undercover profile”), controlled by Detective Jason Belanger of the Windsor Police Service (“WPS”). This undercover profile was a profile originally created by the police back in 2008, and Mr. Slade had first contacted this profile back in 2008 when he was living in Belleville, Ontario, absconding from his previous charges. Mr. Slade had been a “friend” of this undercover profile since then. There were no overt acts by the police to contact Mr.

Slade after his release from the penitentiary. It was Mr. Slade who initiated the contact with this undercover profile, a person he believed to be a fifteen year old boy. With respect to the actual content of the Internet chat on December 2 nd , 2011, Mr. Slade messaged the undercover profile and almost immediately asked how old the person was. The undercover profile advised Slade that he was fifteen. Mr. Slade then advised that he was forty-four years of age and asked if the undercover profile wore diapers as well. Mr. Slade also asked the undercover profile if he wanted him to change his diapers.

He further asked the undercover profile if he had pubic hair or if it was shaved. While this chat was brief and ended without a definite luring offence, the officer believed that Mr. Slade was improperly using the Internet, contrary to his probation order. A copy of the various Internet chats have been acknowledged and entered as an exhibit. 8 On December 15 th , 2011, Detective Belanger checked his Facebook account and learned that Mr. Slade had sent the undercover profile an “app” request requesting a Facebook game he was playing. The undercover profile messaged Mr.

Slade and told him he would have to show the undercover profile how to play the game. Mr. Slade replied that he would. Later on December 15 th , 2011, Mr. Slade again contacted the undercover profile. During the December 15 th Internet chat another officer, Detective Jeff Taylor, subsequently assumed Detective Belanger’s fifteen year old persona and continued the conversations. During this chat the conversation almost immediately became lewd. Mr. Slade informed the undercover profile that he had just been released from prison on November 15 th , 2011, and that he was on Social Assistance. Mr.

Slade revealed that he had been in prison for two years. He also said, “So you see, I like seeing young boys naked and in diapers.” The undercover profile asked him if “the guys were mean to you there.” Mr. Slade replied, “No, they didn’t know what I was in on. So, would you bath me like a baby or take a bath and shower with me?” Mr. Slade described himself as being five foot four, 220 pounds, with brown hair and blue eyes and, quote, “six inches, cut.” Mr. Slade also asked, “Would you fuck me bare or with condom?” He also asked the undercover profile if he lives in Toronto. The undercover profile told Mr.

Slade he lives in Windsor, to which Mr. Slade replied, “I wish I was still in Windsor.” Mr. Slade further told the undercover profile that he used to live on Bruce Avenue and was arrested there. The undercover profile asked Mr. Slade if he can’t come back and Mr. Slade replied, “I can, but I might get killed because of what I was charged with because of the child porn.” The undercover profile asked Mr. Slade if someone is after him, and Mr. Slade replied, “The bitches that set me up to go to prison? Nope, not that I know of.” 9 During this conversation on the 15 th of December the undercover profile shifted Mr.

Slade’s attention to a different young boy persona in order to maintain the integrity of the undercover account. To that end, the undercover profile told Mr. Slade that he had a younger half-brother. Mr. Slade immediately questioned the undercover profile as to the half-brother’s age, to which the police officer answered, twelve. The police also attempted a video call to confirm the identity, but were unsuccessful. Mr. Slade stated he was in a public library otherwise he would.

He also stated, “I don’t have a computer at home as yet, as cops took my computer when I got arrested.” He added, “I wish I did as I’d go on cam in the nude for you.” 10 On Tuesday, January 3 rd , 2012, Detective Belanger was on-line once again using his undercover profile when Mr. Slade messaged him. This chat was very brief, as they were not able to communicate directly. 11 On Thursday, January 12 th , 2012, Detective Belanger sent an unsolicited message to Mr.

Slade to try to maintain contact with him because they had not made contact with him since January 3 rd , 2012. 12 On January 16 th , 2012, at about eight in the morning, Detective Taylor created a Facebook account in the name of Alex Delong (“Alex”), a fictional fourteen year old boy, using photographs of a Windsor Police officer when the police officer was fourteen years of age. The account listed Alex’s birthday as July 24 th , 1997. Once the Alex account was activated, Detective Belanger logged into his fifteen year old persona’s Facebook account and informed Mr.

Slade that his half-brother, Alex, was now on-line. Mr. Slade responded, “How old is he?” And when told he is fourteen, Mr. Slade asked, “He ever walk around his house naked? Cool.” It was at this time that the fictional Alex received a Facebook friend request from Mr. Slade, and the fictional Alex accepted the request. Again, the conversation immediately turned sexual, with Mr. Slade requesting, “So why don’t you take your boxers off and be naked?” Mr. Slade continued asking Alex questions about his penis size, his pubic hair and if he was circumcised or not.

At one point he asked Alex if he would be his boyfriend if he came back to Windsor. Alex asked Mr. Slade, “What’s the oldest and youngest you’ve been with?”, and Mr. Slade replied, “Ten-year-old was youngest. Oldest was like fifty.” Alex replied, “Cool. I’m fourteen.” Moments later, Mr. Slade told Alex to log into a certain website to see pictures of him nude and wearing diapers. To allow access, Mr. Slade provided a user name and a password. Using the credentials supplied by Mr. Slade, Detective Taylor was able to view images of the accused nude in a field. Mr.

Slade asked Alex if he had ever been nude in front of kids younger than him, to which Alex asked, “Am I too old?” Mr. Slade responded, “Nope, you are perfect age. Would you fuck me up the bum too?” 13 Periodically during the January 16 th chat Mr. Slade would suddenly leave the chat and return. When questioned why, Mr. Slade advised that he was using the computers at a public library in the Toronto area. Every thirty minutes the computer session would

expire and he would have to re-log-in in order to continue chatting through Facebook. During the chat on January 16 th , Detective Taylor noted a cellular phone number listed on Mr. Slade’s Facebook wall and sent him a text to verify it was an active number. Mr. Slade confirmed that it was. 14 Over the period of January 16 th , 2012 to February 1 st , 2012, Detective Taylor, posing as Alex, a fourteen year old boy, chatted with Mr. Slade either through Facebook or via SMN text messaging on nearly a daily basis. Some of these conversations are both highly sexual and disturbing.

For example, on January 19 th , 2012, during a chat with Alex, Mr. Slade said, “After you shoot your cum into my bum would you have a shower to wash me or have me leave with cum in my bum?” Over the next few days leading up to the meeting in Windsor, Mr. Slade continually engaged in sexually explicit chat with Alex. Mr. Slade asked if there was anything Alex wanted to bring or do, and Alex suggested Mr. Slade write “Diaper boy plus Alex” on the backside of his underwear as a gift for him. Alex told Mr. Slade to wear them on the bus ride to meet him and that he would keep them when Mr. Slade left. Mr.

Slade agreed to do so, and further suggested bringing additional pairs for him and his half-brother, whom he hoped would join in the sexual encounter. 15 During these conversations, discussions of meeting each other occurred often. Different methods of travel were suggested, and it was decided that a Greyhound bus would be the preferred method. Alex advised Mr. Slade that he had looked into prices for a bus ride and it would cost approximately $120 for the ticket. Mr. Slade replied, “Okay. That’s round trip. You won’t call cops because I was in prison for child porn?” When questioned about the circumstances, Mr.

Slade explained, “I was in possession of it. Now I’m on probation,” and, “I was sentenced to two years jail and three years’ probation.” Further, Mr. Slade stated, “If someone knew I was having sex or talking to someone under sixteen I will be gone for three years.” 16 Detective Taylor, posing as Alex, advised Mr. Slade that his mother would be out of town on February 1 st for the night. It was agreed that Alex would purchase the ticket and Mr. Slade would travel to Windsor to spend the night having sex with Alex while his mother was away. Alex told Mr.

Slade the ticket would be waiting for him at the Greyhound bus station in Toronto, Ontario. Mr. Slade provided his Scarborough address and his date of birth in order to purchase the ticket for him. 17 On January 30 th , 2012, Alex advised Mr. Slade he was in line waiting to purchase his bus ticket. Mr. Slade responded by asking, “You’re going to rub my front and French me when I get off the bus?” 18 On February 1 st , 2012, at 4:58 a.m., Mr. Slade sent Alex a text message advising that he wore the underwear to bed and would be wearing them on the bus. Another text message was sent at 6:58 a.m. wherein Mr.

Slade advised he was almost at the terminal in Toronto. At 8:32 a.m. Mr. Slade sent a final text message stating, “Leaving Toronto now. Do pants and undies come off in stall?” 19 Mr. Slade travelled to Windsor anticipating he would meet Alex in order to have sex with him. Upon his arrival in Windsor, Mr. Slade was arrested for luring a child and breach of probation. Mr.

Slade was wearing a pair of white underwear with “Diaper boy Alex” written on the buttocks in black marker. 20 At 2:29 p.m. that same day Detectives Belanger and Taylor attended the detention unit and Detective Belanger provided a secondary caution to Mr. Slade. When asked if he understood what was happening, Mr. Slade replied, “Yes.” When questioned about the special request from Alex regarding his underwear with “Diaper boy Alex” on them, Mr. Slade advised he was wearing them under his clothes. Shortly thereafter he was led to a private room to be photographed wearing his underwear.

Once completed, the garment was seized. A backpack Mr. Slade had in his possession was also seized, and its contents were photographed. Located in the bag, among other things, were eight diapers with either “Diaper boy Alex” or “Diaper boy” written on them, baby powder, and six more pair of underwear and a change of clothes. Photographs of the accused wearing the undergarments and the contents of the knapsack were filed as exhibits. 21 Mr. Slade was cooperative when arrested and following contact with his counsel provided a voluntary statement to the police. He provided a full confession to the police.

He admitted that he came to Windsor to have sex with teenage boys and that he did not know these teenage boys were fictional at the time. Further, Mr. Slade admitted he was aware of his court imposed conditions and that he was breaching those conditions at the Morningside Public Library in Toronto. He explained that he used his library card rarely, as there were computers that did not require the use of a library card in order to be used. 22 Mr. Slade is now 47 years of age.

OVERVIEW OF EVIDENCE ON DANGEROUS OFFENDER APPLICATION 23 A number of document briefs have been filed containing a substantial amount of material. The Crown called several witnesses. The material and witnesses set out in substantial detail Mr. Slade’s past prior criminal conduct, his conduct while he served his sentence for the prior criminal convictions, his conduct surrounding the predicate offences and other past sexual related conduct.

The Crown elicited evidence from WPS officers, corrections facilities, viva voce evidence of processes and procedures utilized by Corrections Services Canada (“CSC”) Federal Parole and provincial Probation services. As well, the Crown called evidence of a psychologist and a psychiatrist who were properly qualified as experts. They provided viva voce evidence as well as reports/assessments. The psychological evidence also consisted of records from CSC.

These records contained information with respect to psychometric testing, phallometric testing, the initial assessment, actuarial risk assessments, treatment records and a post treatment performance report. Other evidence was called regarding Mr. Slade’s past sexual conduct in the community which did not lead to any criminal charges being laid. Criminal Antecedents 24 Mr. Slade has a criminal record which includes convictions for possession of child pornography, luring a child and counselling an offence not committed, all arising out of the same investigation in the summer of 2008.

As a result he is on the Sex Offender Registry and is also bound by a

section 161 order. Following are the circumstances surrounding the 2008 offences. 25 In the summer and fall of 2008, Mr. Slade engaged in sexually inappropriate internet contact with a person he believed to be less than sixteen years of age. This conduct was initially noticed by a neighbour who contacted the WPS. Thereafter, the WPS took control of the profile of the underage boy and, similar to the predicate offence, engaged Mr. Slade in numerous on-line chats. During these chats Mr. Slade encouraged this purported underage boy to sexually assault an underage male relative. On September 10 th , 2008, Mr.

Slade masturbated on a web cam in front of a fictitious male whom he believed to be less than sixteen years of age. A search warrant was obtained for Mr. Slade’s residence. On execution of the search warrant police noted a number of objects including baby soothers and diapers. Police also seized a lap top computer, several pieces of digital storage media, CDs and a computer tower. A forensic analysis established that Mr. Slade had possession of child pornography, namely five hundred sixty-eight digital images and one hundred sixty- five digital movies. Further analysis revealed that Mr.

Slade was trading and sharing child pornography. As well, an examination of the chat logs indicates that Mr. Slade counselled a number of adults to sexually abuse children. There were also a substantial number of online chats including chats describing the creation of a video involving the physical abuse, torture and killing of a young boy. 26 Upon his initial arrest in 2008 the contents of Mr. Slade’s knapsack were seized and analyzed. The knapsack contained printed and digital images of child pornography. The initial analysis was done by Detective Belanger following Mr. Slade’s 2008 arrest. Following Mr.

Slade’s arrest for the predicate offence a more detailed analysis of the knapsack and the other items seized was conducted by Constable James Hladki of the WPS. This analysis applied the definition of Child Pornography as suggested in the case of R. vs. Meikle [2011] O.J. No 4151 (OCJ) . According to the Forensic Analysis Report (FAR) and the viva voce testimony of Constable Hladki there were two hundred thirty-five photographs of child pornography, largely young males, generally around the age of ten. Frequently these photographs showed boys performing sex acts on one another.

There were also photographs depicting young boys being anally raped or otherwise sexually assaulted by adult males. There were some photographs depicting a diaper theme. 27 With respect to the videos of child pornography, according to the FAR and the viva voce evidence of Constable Hladki there were one hundred eleven videos of child pornography, frequently young boys who appeared to be approximately ten years of age. These videos largely focused on young boys engaging in sexual activity with other young boys. There were also a number of videos depicting young boys being anally raped by adult males.

Other videos included images such as the insertion of a rubber dildo into the anus of a young boy, a seven minute video depicting the insertion of a cylindrical object into the anus of a ten year old boy, a video of a young boy manually stimulating a horse and then performing fellatio on this horse until the horse ejaculated into the boy’s mouth, an eleven minute video involving forced fellatio while the hands of a young boy were bound, sodomy on the young boy while bound, and a six minute video of an adult male binding a young boy followed by a depiction of the young boy bound and engaging in sexual activity with another young boy. 28 The FAR indicates Mr.

Slade had close to three thousand chat logs on various computing devices. These various chat logs suggest that they occurred over a two year period, from January of 2006 to the time of his arrest in 2008. In these chats Mr. Slade engages in sexually explicit chats with other males, repeatedly attempts to arrange meetings with other males, with a relatively constant desire to engage in sexual activity with their children. Included in these discussions of sexual activity with young children there is also, from time to time, a discussion of diapers and as well a mention of sexually assaulting a baby in diapers.

There is an online discussion of bestiality with a dog, encouraging others to sexually assault boys as young as eight years of age and a discussion of making a child pornography movie involving torture in order to make money. Mr. Slade seems to attempt from time to time to have children meet with him. Mr. Slade had children’s underwear sent to his apartment. In one communication Mr. Slade appeared to agree to procure the services of a thirteen year old boy for another adult male. The person with whom he was conversing agrees to pay $1000 to have sex with the male and $2000 if the boy was still a virgin.

There is a discussion about raping the boy and Mr. Slade continues on with this topic by suggesting the insertion of objects and fists. In response to suggestions about beating the victim Mr. Slade indicates “that would be hot” and suggests using a paddle and cane. Further comments suggest that the presence of blood, the sexualisation of wounds and pain to the

victim was sexually arousing to him. Mr. Slade indicated that he would accept $4000 for procuring the boy so the other male could rape, cut and beat him. However, Mr. Slade wanted the boy to live so he could live with the boy and eventually marry him. The other person leaves the conversation still asking to be able to kill the boy as part of the sexual activity. Not long thereafter Mr. Slade engages in another internet chat with a purported underage boy named Benjamin from Orangeville. During this chat there is some attempt to have this person attend at Windsor to visit him.

There were nineteen chat logs wherein Mr. Slade claimed that he sexually assaulted a ten year old boy. These claims occurred during January 2006 to March 2007. 29 The police have been unable to locate a live victim. Following his arrest on the predicate offence Mr. Slade provided a statement to Detective Belanger and while he made numerous admissions against interest pertaining to the predicate offence, he was adamant that he did not ever sexually assault a child. 30 Mr. Slade was granted bail on the 2008 charges. One of the terms of his release was that he was to report to the WPS. He failed to do so.

Within a few weeks of his release, he fled the jurisdiction. He planned on travelling to the United States. While some steps were taken to leave Canada, Mr. Slade ultimately decided to live in Belleville, Ontario, with his brother and went by the name of Steven Gillis (his mother’s maiden name). He lived there for several months until he was arrested and returned to Windsor. 31 While in Belleville, Mr. Slade had to volunteer at a community service organization as a condition for qualifying for Ontario Works.

He was offered a number of possible placements but opted to volunteer at “Komputers 4 Kids”, an organization that provides computers for disadvantaged children. A statement provided by a volunteer for “ Komputers 4 Kids” indicates that those who were sent over from Ontario Works were closely monitored and it was unlikely that they would be able to do anything inappropriate. At the time of his arrest there was a document found on Mr. Slade which indicates that he was delegated to provide a computer to a woman with a five year old son.

This activity was in contravention of the terms of his release. 32 On March 11, 2009, when Mr. Slade was arrested at his residence in Belleville police found two computers and various computer storage devices. These were seized but have subsequently been destroyed and are not available for further analysis. Mr. Slade was charged with two counts of breach of recognizance and pled guilty to both charges. In addition to sixty-five days pre-trial custody, Mr. Slade was sentenced to five days incarceration on each count concurrent. 33 In March 2009 Mr.

Slade was returned to Windsor from Belleville to deal with the 2008 charges. He was further charged with fail to attend arising out of not attending a

schedule court appearance. He did not seek bail and was detained in custody. 34 On October 22, 2009, Mr. Slade pled guilty to a number of charges including distribute child pornography, luring a child, counselling an indictable offence of sexual interference, counselling an indictable offence and fail to attend. Before being sentenced a pre-sentence report was prepared. In the pre-sentence report Mr. Slade admitted to thinking about fifteen year old males in a sexual manner, although he “has no idea why”. Mr.

Slade insisted that he would never engage in sexual activity with a minor and indicated that he would comply with any court imposed conditions. He believed that he committed the offences because he found it to be both “addictive” as well as “arousing.” The probation officer who prepared the report believed Mr. Slade to be at a risk to reoffend. 35 On November 17, 2009, Mr. Slade was sentenced to two years’ incarceration in the penitentiary in addition to six months pre- trial custody.

He was also placed on a three year probation order, as well as being placed on the Sex Offender Registry, ordered to provide a DNA sample and placed under a

Section 161 order which prohibited from attending a park where children are present, being employed or volunteering where he would be in a position of trust towards children, or using a computer system to communicate with a child under sixteen years of age. As a result of the two year sentence Mr. Slade was sent to the federal penitentiary. Corrections Services Canada and Parole Board of Canada Records 36 The Crown filed a documentary brief which contained Corrections Services Canada (CSC) and the Parole Board of Canada (PBC) records.

The Crown also filed a compendium of the numerous programs offered by CSC. 37 There are numerous programs aimed at assessing convicted sex offenders with a comprehensive treatment program aimed at addressing their particular treatment needs. Treatment is encouraged, but never compelled. Upon his arrival at the federal penitentiary

Mr. Slade was assessed by the Specialized Sex Offender Assessment Unit at Millhaven. According to one of the reports filed, Mr. Slade was not forthcoming in his description of the events that led to his charges. This lack of cooperation led to Corrections authorities contacting Detective Belanger to obtain further information. Detective Belanger provided background materials, including his FAR. During the assessment process Mr. Slade expressed some animosity towards his neighbour who reported him to the police. He denied an acceptance of sex with children or feelings of sexual entitlement.

The psychologist conducting the assessment stated that Mr. Slade did not appear to be genuine in his assertions. 38 As part of this Specialized Sex Offender Assessment (SSOA), Mr. Slade was also subject to a series of psychological, psychometric and phallometric testing. After the SSOA it was determined that there were significant risk factors which clearly needed to be addressed. It was recommended that Mr. Slade be placed in the High Intensity Sex Offender Treatment program at the Regional Treatment Centre (RTC).

This recommendation was made as there were a significant and wide ranging number of enumerated areas of concern with respect to dealing with Mr. Slade’s future risk for sexual reoffending. These concerns included a deviant sexual preference, lack of cooperation with supervision, sex drive preoccupation, impulsivity, lack of concern for others, emotional identification with children, significant social influences, capacity for relationship stability, poor problem solving skills, hostility towards women and negative emotionality. Mr.

Slade refused to accept the recommendation to attend a high intensity treatment program at the RTC. Instead he chose to pursue a medium intensity sex offender treatment program. 39 Prior to Mr. Slade’s Statutory Release Date of March 18, 2011, the issue of release on Parole was considered by the PBC, formerly the National Parole Board. According to the PBC report dated November 22, 2010, Mr. Slade’s sexual preference is for children. Moreover, Mr. Slade agreed with that finding and confirmed that his “interest lies in males under 10 with certain characteristics.” The PBC report also noted that Mr.

Slade minimized his offences, had a non-compliant attitude and had difficulty controlling his sexual impulses. As a result of the decision of the PBC, Mr. Slade was detained until a few days before his Warrant Expiry Date of November 17, 2011, and on release was supervised on Probation. These records were further amplified by the viva voce testimony of Mr. Chris Zurczak, the lead parole officer for Essex and Kent County and an affidavit and viva voce testimony of Ms. Nikki Smith, a senior representative from PBC. Evidence of Chris Zurczak 40 Mr.

Chris Zurczak, the lead parole officer for Essex and Kent County, was qualified as an expert in the process and procedures of CSC. He described the mandate and purpose of CSC: to protect society and re-integrate offenders back into society. 41 Mr. Zurczak described in general terms the process for each offender sentenced to federal incarceration. Within five days of a sentence being imposed an offender is interviewed by a local Corrections officer and asked to describe his version of the events. This version is compared to the official version of the offence.

Community contacts are also canvassed as well as the offender`s social environment. 42 Mr. Slade was assessed at the Joyceville Assessment Unit to determine security level and needs. Following the assessment a Corrections plan was formulated and the general information relayed to Mr. Slade. The involvement of the local CSC representative then ceases and the PBC then become involved in determining parole eligibility and release. 43 Every person sentenced to federal incarceration has a Correctional Plan aimed at addressing his needs and re-integrating him back into the community.

There are numerous potential programs, about two hundred of them. Treatment is always offered but participation is optional. That is, treatment cannot be forced. No one can be forced into a program, but progress in a program will affect parole. 44 While incarcerated an attempt is made to identify static and dynamic factors, and conduct a domain analyses to determine the needs and programs an offender will be offered. The programs are aimed at lessening the risk and identifying contributing factors to criminal acting out. 45 Eligibility for parole does not mean that parole will be granted.

Factors that affect parole include how an offender has done in treatment, community support (including halfway house), police concerns, victim concerns and the prison behaviour record. While parole is not a right, statutory release will be granted unless the PBC determines that an offender must be detained. Thereafter, there is a yearly review. Even if detained past the statutory release date, an offender is still encouraged to take programs. Being held to the WED is relatively uncommon – only approximately 4% of federal inmates are so detained.

Evidence of Nikki Smith 46 Ms. Nikki Smith, a representative from the PBC testified about the processes, procedures, record keeping for the PBC and described the function of the PBC. Ms. Smith described the function of the Parole Board as an administrative tribunal obligated to consider all relevant and reliable information. She described in general terms the type of reports kept and considered by the PBC. The particular reports pertaining to Mr. Slade were filed as exhibits. Ms.

Smith gave evidence regarding when an offender is eligible for release and parole. 47 The records were further explained and amplified by the viva voce testimony of Dr. Yolanda Fernandez, a psychologist. Probationary Supervision 48 The court heard evidence and received documents surrounding the supervision of Mr. Slade while he was on probation with respect to the 2008 offences. John Baker, an experienced Probation officer who specializes in the treatment of convicted sex offenders, supervised Mr. Slade. 49 Mr. Baker determined Mr. Slade needed high intensity supervision.

This is the most stringent level of probationary supervision requiring more frequent reporting and strict compliance with all probationary terms and generally far more intensive probationary supervision. Mr. Baker’s efforts to assist Mr. Slade’s re-integration into the community included connecting him with a number of social agencies including the John Howard Society and the Circle of Support and Accountability. Mr. Baker also tried to engage Mr. Slade in treatment and counselling. A referral was also made to the Centre for Addiction and Mental Health. 50 During a meeting with Mr. Baker on December 15, 2011, Mr.

Slade attempted to have his probationary term varied so that he could gain access to the internet to start a leather trinket business. That request was denied. At that same meeting Mr. Slade was warned of his restrictions and signed an acknowledgement that he was not to have contact with anyone under the age of sixteen years. Despite this warning and signing the acknowledgement within two hours of the meeting Mr. Slade attended a library in Toronto, gained access to the internet and engaged a purportedly underage boy in sexual conversations. On January 12 th , 2012, Mr.

Slade told his probation officer that he was in compliance with his probation conditions and specifically denied any computer use. That statement was obviously not true, as the facts surrounding the predicate offence establish. Mr. Slade breached his probation order continuously. 51 Debra Dumouchelle, a supervisor within Probation, provided additional information with respect to levels of probationary supervision and the process and procedures of probationary supervision. Testimony of psychologist, Dr. Yolanda Fernandez 52 Dr.

Fernandez was qualified as an expert witness with respect to the treatment of sex offenders, as well as phallometric testing. Dr. Fernandez has been employed for several years overseeing the delivery of mental health services for maximum security inmates, is responsible for sex offender treatment for all sex offenders entering the federal system in Ontario, and a senior therapist at the Bath Institution. She has also been trained in the use of various actuarial scores.

Her testimony served to give the court further insight into the CSC psychology records which were tendered as documentary evidence at this proceeding. She provided background information with respect to the process and procedures of CSC in place to deal with sex offenders. She described the specialized sex offender assessment, which encompasses actuarial scoring, phallometric tests, a review of circumstances surrounding the underlying offence and an assessment of treatment needs, including the intensity of treatment required. On completion of testing a report is prepared. 53 Dr.

Fernandez described the underlying science and the process involved in phallometric testing. Specifically, the instrument measures erectile response to various stimuli and is used in making a determination of the subject’s interest/response to the respective stimuli. The results of this testing and the results of other actuarial scoring instruments are used in formulating a treatment and release plan for convicted sex offenders. According to Dr. Fernandez sexual deviancy is strongly correlated to the risk of future reoffending. 54 Dr.

Fernandez provided evidence with respect to the phallometric testing administered to Mr. Slade. Mr. Slade’s testing resulted in a finding that Mr. Slade showed no response to sex with females of any age. He showed a low response to sex with consenting adult males. He demonstrated interest in sex that involved passive sex with male children. He also had a deviant response to sex with

male children involving violence, although not as strong a response as passive sex with male children. He exhibited no response to violence without sex. The testing overall revealed that Mr. Slade has a sexual interest in male children, with or without violence. That is, with respect to sex with boys, he was not turned off or inhibited by the presence of violence. He was however not sexually aroused by pure violence without sex. 55 Dr. Fernandez described the use of actuarial scores and the use of statistical correlations to predict future risk for re-offence.

As well, as a clinician she described the process of identifying needs and factors to be addressed in treatment. 56 She was questioned at some length about the initial assessment that was completed by the specialized sex offender assessment unit. She testified that during his assessment Mr. Slade was not forthcoming about the events leading to his prior charges, and as a consequence further information was sought and obtained from the WPS. 57 Dr.

Fernandez was asked about the chat logs from 2008 obtained from the WPS wherein there were “chats” surrounding the creation of a film involving the rape, degradation, mutilation and torture of a young boy in return for the payment of money. According to Dr. Fernandez these chat logs suggest sexual interest in sexual activity that involves violence, and was in accord with the phallometric testing which suggests that Mr.

Slade was definitely not disinhibited by violence. 58 The document brief filed during the application indicates that shortly after this online discussion about creating a snuff film and sexually abusing a child, Mr. Slade appeared to attempt to make arrangements to have a young boy attend at his house. Dr. Fernandez indicated that as a clinician this would definitely be concerning. However, clinically she could not make a prediction about what a person would or would not do in the future. 59 There were questions asked of Dr.

Fernandez about the chat logs pertaining to bestiality with a dog and horse, ejaculating and urinating on children, being naked in public, conversations about diapers, bondage and wanting to play the role of a child. According to Dr. Fernandez, this indicated that Mr. Slade was indiscriminate in his sexual interests. While this wide ranging sexual interest in deviant activities might suggest novelty seeking and might go in a benign direction, these sexual interests could also go in a different and concerning direction involving violence.

Over time the person may be willing to look in a lot of different directions from a sexual perspective. From a clinical perspective this desire to seek more out presents a challenge for treatment as there is a need for novelty and treatment should assist him in pursuing conduct that allows him to address this need for novelty in a way that is not harmful or illegal. 60 Dr. Fernandez was also specifically asked about Mr. Slade’s numerous inquiries over the internet when he asked if children bled or screamed during the abuse. As well, on one occasion Mr.

Slade indicated that he would be willing to have sex with a two-week– old baby. Dr. Fernandez indicated that these particular comments also indicate that Mr. Slade is quite indiscriminate in his sexual interests. Not surprisingly, she testified that a sexual interest in babies is quite uncommon. She also indicated that Mr. Slade’s inquires about whether children bled when a person first had sex with a child and Mr. Slade’s apparent arousal by this information demonstrated a lack of remorse. As well, while some sex offenders would find the distress of a victim abhorrent, Mr.

Slade did not appear to be distressed at the idea that children would be harmed or distressed by the criminal activity. This indicated a treatment target to try to instil a better understanding of the effect of trauma on victims. 61 While Mr. Slade denied an acceptance of sex with children, from a clinical assessment the assessment unit did not believe that his assertion was genuine and clinically the unit did not believe there was genuine remorse. 62 During treatment Mr. Slade was asked about his obtaining and possessing pornography. Mr.

Slade claimed that he searched the internet about once a month for an hour and his search did not discriminate between different ages and types of sexual activity. This assertion was not in accord with the information provided by the police. That is, there appears to be a measure of minimization by Mr. Slade . According to Dr. Fernandez this minimization would make treatment more difficult. 63 Dr. Fernandez discussed the actuarial scores that were utilized to assess Mr. Slade’s then present risk of recidivism. According to Dr. Fernandez, given Mr.

Slade’s reoffending and committing the predicate offence, his present risk of future violent recidivism would be higher. 64 Dr. Fernandez testified that following the conclusion of the initial assessment, there was an initial recommendation for a moderate intensity treatment program. However, as a result of the scores on the phallometric tests, Mr. Slade’s deviancy and CSC polices in place, there was an override so that Mr. Slade was recommended for the High Intensity Sex Offender Treatment Program (“HISOTP”)

at the RTC. The RTC is a secure psychiatric hospital which is located on the grounds of the Kingston Penitentiary. The HISOTP, at the time of Mr. Slade’s incarceration was not available at that time at the Bath Institute. An offender may choose not to attend a certain program. Mr. Slade chose not to attend the HISOTP. As CSC does not compel treatment, he was not forced to attend the HISOTP. According to Dr.

Fernandez, from a clinical perspective this indicated that he did not appreciate the seriousness of his problem and was not prepared to address his problem at a level that it needs to be addressed. 65 During cross examination, Dr. Fernandez described the HISOTP, which attempts to motivate individuals to deal with issues of risk. From the minute an individual arrives at the assessment unit there is an attempt to motivate that person to deal with risk. HISOTP is a structured program but tailored to assist each offender in identifying his own issues.

She testified that although it is highly structured it also addresses individual needs. Given that Mr. Slade was successful in some respects in his work record and in completing his high school equivalence there is no evidence to suggest that he could not complete the program. At this point, he is simply choosing not to. She could see no reason why Mr. Slade couldn’t successfully complete the program. She further advised the HISOTP is now available at the Bath Institution. Also during cross examination Dr. Fernandez testified that some of Mr.

Slade’s behavior, in terms of minimizing and blaming others, is not uncommon and that it is sometimes difficult for persons to become motivated to be successful in a treatment program. 66 Dr. Fernandez was well aware of the medium Intensity sex offender treatment program as she used to deliver this program. She described the program as an effective or reasonable program. The program would have tried to help Mr. Slade identify his trigger areas and provide him with the tools that he would need to control those triggers and manage them once released in the community.

The program would have attempted to develop a plan on how to manage risk factors in the future, how to mitigate them, keep them in-check as much as possible and would have dealt with what Mr. Slade needs to do personally. The program would have also spent some time talking about managing sexual deviancy. While in the treatment program Mr. Slade appeared to focus on his own personal trauma from being sexually abused as a child. While not insignificant this is not particularly relevant to managing future risk. His progress in managing his future risk was limited.

His understanding of his problem with deviant sexual arousal and sexual pre-occupation was underdeveloped. Dr. Fernandez indicated that the medium intensity sex offender treatment program was not adequate to address his needs. Mr. Slade needed a more comprehensive approach to address his sexual deviance. However if an offender does not wish to attend at a HISOTP he will not be forced to do so and will be allowed to attend at a moderate intensity program as CSC would prefer that he at least gain some tools to manage his deviancy, rather than none. 67 Dr. Fernandez discussed Mr. Slade’s sexual pre-occupation.

There were 2,800 chat logs that were sexually orientated, along with the child pornography. The assessment indicated that Mr. Slade spent a considerable amount of his time in sexual endeavours. This preoccupation would need to be addressed in treatment. This sexual pre-occupation was noted even after Mr. Slade completed the medium intensity sex offender treatment program. 68 Dr. Fernandez was asked about the conduct of Mr.

Slade in signing an acknowledgement regarding a probationary requirement that he not contact children and a few hours later attending at a public library and contacting purportedly underage children over the Internet. According to Dr. Fernandez, clinically this suggested that Mr. Slade was not actually committed to managing his deviant sexual arousal and was essentially going through the motions. His extremely short survival time before reoffending, while not statistically significant, from a clinical perspective, indicated that upon his release from custody Mr.

Slade either had no intention of managing his deviancy or had no ability to do so. As for Mr. Slade’s actions in travelling by bus to Windsor, this conduct represents an escalation of his conduct. Clinically, it makes little sense that he would have travelled to Windsor to meet an underage boy for no reason. 69 Dr. Fernandez further stated Mr. Slade’s reluctance to take sex reduction medication indicates from a clinical perspective a lack of commitment to address his treatment needs. This reluctance suggests that at this point in time Mr. Slade is not willing to do everything he possibly can to manage his risk.

This issue might be able to be addressed in the context of the HISOTP. Further, with respect to treatment, Mr. Slade’s thrill seeking coupled with his wide ranging sexual deviancy suggests a complicated and challenging case for treatment. Clinically it is difficult to predict what direction his deviancy will lead him, including a potentially violent direction. While it is very difficult to narrow down what the next type of sexual behaviour will be, it could entail violence. Without treatment his risk will remain the same, namely moderate to high risk, but more likely high risk.

With treatment, risk is reduced although to an unquantifiable amount. Successful treatment means internalizing the program rather than merely sitting through a program. Dr. Fernandez indicated that no one can predict how long it will take to treat Mr. Slade so that his risk will be manageable. It is Dr. Fernandez’s opinion that there is no commitment to treatment, and while Dr. Fernandez hopes Mr. Slade will be ready at some time to engage in treatment, no one can predict when that will occur. 70 Dr.

Fernandez further testified that sexual activity with underage children is definitely potentially a damaging experience. This often has a psychological impact on them. This psychological trauma is not dependant on physical trauma. As well, some of the internet chats which discussed violence could have caused psychological trauma. Testimony of psychiatrist Dr. Phil Klassen

71 Dr. Klassen, was appointed pursuant to

section 752.1 of the Code to conduct an assessment. His report was filed as an exhibit in the application. He also testified during the application. He was qualified, on consent, as an expert to give opinion evidence with respect to psychiatry, paedophilia, risk assessment and future dangerousness. 72 Dr. Klassen provided some background information on certain psychiatric concepts germane to the application. 73 He ultimately diagnosed Mr. Slade as suffering from a personality disorder, namely a sexual paraphilia, including multiple paraphilia, as well as a schizoid personality disorder. He believes Mr.

Slade is at significant risk to reoffend sexually, particularly as it relates to Mr. Slade’s sexual paraphilia. According to Dr. Klassen’s report Mr. Slade suffers from a paraphilia disorder, more specifically, a deviant sexual preference. The paraphilia of greatest concern is Mr. Slade’s same-sex pedophilia, his sexual preference for prepubescent males. Dr. Klassen in his testimony indicated that he would expect this to be a stable preference, which is more likely with same- sex or homosexual pedophilia. In Mr.

Slade’s case, he has never had sexual relations with an adult and one would expect this interest in minors to continue albeit generally speaking sexual interest and sexual behaviour tends to decline as people get older. Dr. Klassen explained that while this risk of sexual behaviour declines over time, this is not something that is dichotomous; that is, this sexual misbehaviour is not continuous to point “X” and then discontinues. Within a risk level there is a fairly linear decline with advancing age. The slope of the risk line for offenders against adult females declines more quickly.

The risk slope line is also steepest for incest offenders, or even for offenders against family members. However the slope of the line is shallowest for persons with pedophilia, particularly same sex pedophilia. That is, for same sex pedophilia, the time horizon for worrying about the behaviour continues more or less to death. This misbehaviour can continue into a person’s seventies or eighties. There is a continual risk of reoffending, albeit eventually quite small. 74 Dr. Klassen testified and in his report wrote of Mr. Slade’s sexual deviancy relating to having an interest in diapers.

Such diaper fetish involves a masochistic element, exhibitionism and fantasizing that he is a child in a sexual context (known as auto pedophilia). However, for Mr. Slade the main focus is his same sex pedophilia with these other facets to Mr. Slade’s deviancy orbiting the primary interest. These other paraphilia are expected to be stable although the intensity of a person’s interest tends to wane over time. 75 During the assessment Mr. Slade told Dr. Klassen that in the past he was previously aroused to mostly young boys perhaps twelve years of age but now was primarily attracted to adult males. Dr.

Klassen testified that Mr. Slade’s criminal behaviour was consistent with his sexual preferences and he does not believe Mr. Slade’s self-report about his sexual preferences to be true. 76 Dr. Klassen was asked about his clinical perspective regarding the Internet chat logs. He indicated the nature of the themes that a person is preoccupied with or gravitates towards tells us something about the underlying interests. While the aggressive and even sadistic themes are in the range of possibilities for Mr. Slade, Dr.

Klassen recognized there is a tendency to push the envelope online and the comments might be more graphic, intrusive or problematic to what one typically sees in real life. While Mr. Slade’s thoughts on paper are pretty fringe, it is not clear what they would translate into behaviourally in all but the most optimal conditions. Optimal conditions for Mr. Slade would be few consequences and relatively unfettered access to children, with little supervision. 77 Dr. Klassen noted that Mr. Slade’s pornography collection has more non-coercive material than coercive material. While Dr. Klassen could not exclude that Mr.

Slade is coercive or sadistic with children, what a person says on the Internet does not necessarily translate into that kind of behaviour with a victim. Dr. Klassen further stated that Internet chats can illustrate what a person indulges in and his sexual preoccupation. They can also speak to what a person’s potential might be under ideal circumstances. That said there typically is a gap between what a person might say and what a person might do. Dr.

Klassen likened the viewing of child pornography as “setting up your own phallometric laboratory” and often those who view child porn are frequently pedophilic. 78 Dr. Klassen provided evidence on the best approach from the perspective of a psychiatrist to analyze and quantify the risk of future sexual recidivism. In his opinion, the essence of the art and science of risk assessment is to minimize the art and maximize the science. To do so clinicians rely on actuarial scales rather than clinical judgment. Clinical judgment is rarely used to override actuarial risk.

These actuarial assessment tools do not indicate that a particular person will or will not recidivate but rather that a person similarly situate will recidivate. This approach is commonly used in Corrections and in Ontario Review Board hearings. These actuarial scales do not capture the severity of the reoffending. During cross-examination Dr.

Klassen acknowledged that there are issues with the use of actuarial scales but suggested that these scales are better than other approaches and certainly better than clinical assessments. 79 Internet luring offenders may be partitioned off from far more fantasy driven offenders to more hands on offenders. For the purpose of his actuarial assessment, Dr. Klassen likened Internet luring to invitation to sexual touching. In cross-examination he acknowledges some shortcomings in relying on the numbers generated by the instrument in that it is not known how many in the sample are offenders with similar offences.

This could weaken the confidence in the extrapolation. As well, Internet luring involves two sets of

persons, those who are fantasy driven pedophiles and those who are more like hands-on pedophiles. While there is validity in using these instruments Dr. Klassen would feel more confident if there was a new replication of the statistic. Dr. Klassen also provided background information on the LSIOR, a shorter term risk assessment tool, which was utilized by probation and corrections officers. 80 Dr. Klassen risk assessment included an analysis of a number of actuarial scores including the SORAG and STATIC 99R. 81 According to the SORAG scale Mr.

Slade placed in the 81 st percentile, with respect to the standardized sample which indicates that similarly scoring individuals reoffended violently or sexually at a rate of 76% over ten years. 82 According to the STATIC 99R scale Mr. Slade is at the 97 th percentile with respect to the standardization of samples, which indicates that of a hundred randomly selected sex offenders 97% would be at lower risk than Mr. Slade. In terms of risk, Mr. Slade has approximately 5.2 times the risk of offending in comparison with the “average” sex offender.

This would put a similarly situate person in the range of 30-50% over ten years of opportunity. Dr. Klassen places Mr. Slade’s risk closer to 50%. 83 Taken together, actuarial scores indicate that Mr. Slade is at moderately high to high risk of recidivism qualitatively. 84 Dr. Klassen also provided his perspective on the circumstances surrounding the predicate offence. The fact that Mr. Slade travelled to Windsor by bus to meet with whom he believed to be underage boys Dr. Klassen feels is significant, as his prior offending remained in the fantasy realm. In the predicate offence, Mr.

Slade’s actions in travelling to Windsor with diapers - his primary fetish- in his back pack suggest that the trip to Windsor was a sexually motivated journey. 85 Dr. Klassen did acknowledge that there is a possibility that police officers may become a very enticing thirteen year old. However as a psychiatrist there is little he could add to the observation. That said a police officer could not tempt a person into engaging in the conduct unless the person had the inclination to engage in it. As a general rule, people go through life engaging in personal probability statements to determine conduct. 86 Dr.

Klassen found that while it’s challenging to state with certainty whether Mr. Slade is likely to reoffend a case could be made that he is likely to reoffend. Further, given Mr. Slade’s performance in treatment, his awareness of his sexual proclivity and his rapid recidivism, Mr. Slade could be said to be indifferent to the reasonably foreseeable consequences of his behaviour. 87 With respect to his prospects for treatment, Dr. Klassen discussed past attempts to treat Mr. Slade and his failure to take responsibility for his actions.

His record of fleeing the jurisdiction following his arrest for the 2008 offences, contemplating fleeing the country, not participating well in treatment and reoffending seventeen days after his release from custody suggests that his track record for taking responsibility and accountability is poor. 88 With respect to the treatment of Mr. Slade’s personality disorder, according to Dr. Klassen, Mr. Slade was not particularly troubled by his personality, and as a result, there is no sense of a high degree of personal distress motivating him to change.

As a result of this lack of motivation, treatment of his core personality style is not likely to be of particular value. 89 In terms of dealing with his pedophilia, Dr. Klassen believes that Mr. Slade is an excellent candidate for sex-drive reducing medication, and indeed the taking of sex reduction medication is critical and perhaps essential to reducing risk. The various options in administering and adjusting sex reduction medications were also discussed at some length in cross-examination. Dr. Klassen believed that the taking of sex drive reduction medication could be part of a treatment program.

According to Dr. Klassen, apart from rare occasions where a person is incapable of giving consent, a physician would not administer sex reduction medication unless a person consents. 90 In his report, Dr.Klassen notes that Mr. Slade does not suffer from antisocial personality disorder per se , but does have some antisocial personality traits, including failing to conform to social norms with respect to lawful behaviour, irresponsibility, a failure to plan ahead and a lack of remorse.

He does not have so much a problem with self-regulation but rather a problem in a very specific area, namely the control of his pedophilia.

91 In cross-examination Dr. Klassen indicated that generally there are two main things that drive sex offending, namely psychopathy and pedophilia. The more worrisome offenders have both. While Mr. Slade has a pedophilia, he does not have a high PCLR score, which would lead Dr. Klassen to conclude he is not psychopathic. 92 Dr. Klassen indicated that Mr. Slade’s lack of disclosure during treatment could be attributable to the prison setting, his schizoid tendency and his lack of interpersonal skills in communicating. It is possible he could be more forthcoming if he engages in further treatment.

As well, while his self-disclosure was not that great with Dr. Klassen, this could be attributable to Mr. Slade being anxious about his sentencing hearing given the serious nature of the hearing. In the past his self-disclosure has been somewhat better and might improve with successful treatment. 93 Further, in cross-examination Dr. Klassen acknowledged that everyone’s impulsivity diminishes over time and this diminished impulsivity would give an offender more time to contemplate whether he will follow through with reoffending. That said Mr.

Slade has more of a compulsivity problem rather than an impulsivity issue. His offending suggests persistence rather than sudden and emotionally driven acting out. 94 According to Dr. Klassen, during Mr. Slade’s last time in the federal penitentiary he dismissed the notion that he was going to engage in treatment. Dr. Klassen believes that high intensity treatment would be preferable. 95 With respect to the issue as to whether there is a reasonable possibility of eventual control of the risk in the community, Dr.

Klassen suggested, with some hesitancy, that following treatment and with a potentially lengthy residency condition Mr. Slade may present with a reasonable possibility of eventual control in the community. However it is Dr. Klassen’s opinion that Mr. Slade will remain a risk for many years to come and his risk would remain well beyond the expiry of a ten year supervision term. 96 According to Dr. Klassen, Mr. Slade’s risk could not be managed by probation as probation lacks the necessary levers to address Mr. Slade’s difficulties.

Absent chemical castration, which is not available with probation, it would not be helpful to treat on probation. He described the treatment program in the provincial setting as similar to the federal system but less intense. Other evidence 97 The Crown also adduced evidence of Mr. Slade’s efforts in the past to place himself in a position of trust and authority towards young boys. 98 Mr. Slade was involved in Scouts Canada for several years until he was expelled due to inappropriate behaviour.

His inappropriate behaviour consisted of meeting with young boys at the Scout shop and on one occasion having a young boy attend at his residence. Mr. Slade hired counsel in an unsuccessful attempt to secure re-instatement with Scouts Canada. 99 Mr. Slade also attempted to hire a young boy as a babysitter through a community based electronic web site. The web site provided an outlet for people who wanted to donate household goods, products or services, or secure part-time employment. On February 27, 2008, a thirteen year old boy posted an advertisement on the website seeking employment as a babysitter.

A person, now known to be Mr. Slade, responded: “Would you babysit adult babies. Let me know.” Mr. Slade’s response to the advertisement set off red flags to those involved in the community electronic billboard. Amber Daoud testified she became concerned and contacted the thirteen year old who posted the advertisement and asked him to tell his parents. Ms. Daoud then engaged Mr. Slade in conversation over the Internet. Mr. Slade sent her naked pictures of himself. Mr. Slade admitted to her that he liked seeing young boys nude as they were changing and getting ready for bed. Mr.

Slade told her it “gets me hard too.” Mr. Slade further admitted to her that he “was into child porn and shit like that”. During the course of this Internet conversation Mr. Slade also asked Ms. Daoud about her employment as a child care worker and indicated to her that he wanted to work with her as a child care worker. He indicated that he would like to change the diapers of kids, indicating that he thought it would be cool to do so. Mr.

Slade was ultimately banned from the website, as well as related web sites and the police were contacted but no charges were laid. 100 The court heard testimony from Desmond Phillips who was one of the proprietors of Notty Acres Farms, a bed and breakfast establishment. He testified Mr. Slade lived at the Notty Acres Farms, assisting in the guest house in return for room and board. At the time Mr. Phillips was the non-custodial parent of three children who were five, seven and nine years of age. On a number of occasions Mr. Slade offered to babysit these children.

101 Mr. Slade did not testify or call any evidence on the application. 102 The Crown provided the court with an electronic casebook in which there were eighty-seven cases. The position of the Crown 103 The Crown submits the offence of Internet Luring constitutes a serious personal injury (“SPIO”) offence pursuant to section752 of the Code and therefore a conviction for Internet Luring could give rise to Mr. Slade being declared a dangerous offender. 104 It is the position of the Crown that Mr. Slade’s admitted conduct surrounding the predicate offence constitutes both an offenceof violence as defined in subsection (

a) and a sexual offence as set out in subsection (

b) within the definition of serious personal injuryoffence found in s. 752. 105 The Crown submits the conduct of Mr. Slade in the predicate offence from the initial contact, through the recruitment process,where he engaged in highly sexually charged banter with a person whom he believed to be underage, which culminated in an attempt toconsummate the sexual assault on the underage boy, constitutes the attempted use of violence against another person or conduct likely toendanger the life or safety of another or likely to inflict severe psychological damage on another person. Therefore, the Crown arguesMr.

Slade has committed an offence of violence under subsection (a). 106 As well, the Crown submits the actions of Mr. Slade which include the numerous admissions made during his Internet chatswith purportedly underage boys, followed by his subsequent conduct of writing the name of his intended victim on his underwear,travelling to Windsor by bus while texting his intended victims, discussing immediate sexual contact on his anticipated arrival andcarrying a back pack with diapers, leave little doubt as to his intention to commit a sexual assault.

The Crown also points to hissubsequent admission to Detective Belanger - that he travelled to Windsor to meet these underage boys. All of that evidence the Crownargues collectively provides cogent evidence of an attempt to commit a sexual assault involving underage boys and therefore falls withinthe ambit of subsection (b). 107 Once the court has determined that Mr. Slade has committed a serious personal injury offence the Crown argues there isenough evidence before this court to make a finding that Mr. Slade is a dangerous offender. 108 The Crown points to Mr.

Slade’s antecedents, related record, sexual deviancy and prior response to community supervision andtreatment to support its submission. The Crown submits there is ample evidence of similar conduct involving unrestrained dangerousconduct which leads to the inevitable conclusion that Mr. Slade is likely to reoffend in the future. It is the position of the Crown thatwhether the test be “likely” as suggested in R. v. Currie, (SCC), [1997] 2 S.C.R. 260, or “very likely” as suggested inR. v. Lyons, (SCC), [1987] 2 S.C.R. 309, the Crown has as required by sections 753(1)(a)(

i) and 753(1)(

b) of the Codeestablished well beyond any reasonable doubt that Mr. Slade is very likely to violently re-offend as a result of pathologically intractablebehaviour. The Crown points to the actuarial analysis of Dr. Klassen to support its position. 109 The Crown further submits the circumstances of the predicate offence indicate an attempt over several weeks to groom twounderage boys over the Internet. The Offender packed his knapsack with diapers, consistent with his fetish. He wrote the name of hisintended victim on his underwear. He picked up a bus ticket. He travelled to Windsor.

He texted the underage boys discussing his desiresto promptly consummate the sexual relationship with them. He placed himself in a position where, but for the fact that the underage boyswere police officers he could have quickly consummated the offence of sexual assault. They Crown argues Mr.

Slade’s actions wereacts far beyond preparatory acts and in law constitute acts done for the purpose and intention of committing a crime of sexual assault.Collectively the only common sense inference is that on the continuum from preparation to attempt the Offender moved inexorably toattempt. 110 The Crown submits that once the court finds Mr. Slade a dangerous offender the totality of the evidence indicates that there isno reasonable expectation that a lesser punishment than an indeterminate sentence would adequately protect the public.

In the alternativethe Crown submits, if the court determines there is a reasonable expectation that a determinant sentence will adequately protect thepublic against the commission of murder or a SPIO, the Crown seeks a dangerous offender designation with a lengthy and substantialdeterminant sentence and a ten year Long-Term Supervision Order (LTSO). In the further alternative the Crown submits if the courtdetermines the Crown has failed to establish beyond a reasonable doubt the elements set out in section 753(1)(

a) or (b), the Crown reliesupon the specific provisions in section 753(5) and

section 753.1 which provide a specific statutory authority to designate Mr. Slade a

long-term offender. The position of the Defence 111 It is the Defence’s position that a dangerous offender designation at this juncture is not available or required. 112 Defence counsel submits that the psychiatric evidence in general is fair and unbiased and should be seriously considered particularly in light of Mr. Slade’s very limited criminal record and the limited evidence of his prior behavior. Defence suggest that the psychiatric and psychological evidence should lead this court to find that Mr.

Slade is not a lost cause but rather an excellent candidate for treatment and counselling which would enable him to reintegrate into society. He submits the psychiatric evidence tendered in this matter points to an outcome in which Mr. Slade ought to be sentenced to a further period of custody to be followed by a LTSO which will assist him in his rehabilitation and at the same time protect the public. Defence counsel has asked this court to consider a LTSO less than the maximum of ten years. 113 Defence counsel submits the Court should sentence Mr.

Slade to a further two years in the penitentiary in addition to the time Mr. Slade has spent in pre-sentence custody (a little more than 34 months). Counsel submits Mr. Slade should be given credit for the time he has spent in pre-sentence custody on a 1.5 to 1 basis and as of today’s date that would equate to approximately four years and three months. Therefore Mr. Slade, if given a two year sentence today, would be receiving the equivalent of a six year and three month sentence. 114 Defence counsel submits an additional two year sentence will afford Mr.

Slade access to the HISOTP which was the program recommended to Mr. Slade during his previous period of custody but was, at the time, unavailable in the medium security Bath Institute where he was assigned. It’s the defence’s position that both Dr. Fernandez and Dr. Klassen have testified that this would be an appropriate course of treatment for Mr. Slade. 115 Defence counsel further submits this may well have been a case for the defence to ask the court to consider a lesser period of further custody. Counsel indicates that Mr.

Slade is in agreement that a Federal placement is necessary in these circumstances and therefore counsel asks the court to find that two further years is within the appropriate range in these circumstances. 116 It is further suggested by defence counsel that a LTSO with appropriate conditions would be appropriate. Of particular concern with respect to Mr. Slade’s’ case would be the imposition of an Order that he take sex reduction medication. The PBC can impose a condition that requires a specific treatment and failure to comply with same would result in a breach of that Order and Mr.

Slade could be charged and face consequences which may include being placed in custody. The LTSO would be suspended while he was in custody. Defence counsel also points out that CSC and PBC have a number of resources available that contemplate and provide for dealing with offenders and their re-integration into the community, including making a residency condition for up to 180 days, which is a renewable condition . Given the forgoing defence counsel submits the Court could make such recommendations upon sentence that will guide PBC in fashioning an order that will adequately take into account the needs of Mr.

Slade and the areas of concern contemplated by Dr. Klassen and Dr. Fernandez. DANGEROUS OFFENDER DESIGNATION 117 The dangerous offender and long-term offender provisions of the Code are set out in

Part XXIV, sections 752 to

Section 753 deals with dangerous offender applications and the relevant parts of that

section for this case are as follows: 753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender 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 the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other

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

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

b) of the definition of that expression in

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

(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.

(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(

a) and (

b) apply, a sentence imposed under paragraph (4)( a ), or a sentence imposed and an order made under paragraph 4( b ), replaces the sentence that was imposed for the offence for which the offender was convicted.

(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. 118 Section 753(1) describes two paths to a finding that a person is a dangerous offender. 119 Section 753(1) (

a) deals with offenders who have been convicted of a SPIO as defined in s. 752 (a). If the offender has been convicted of a SPIO as defined in s. 752 (a), the court must then determine whether the Crown has established that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. The Crown can meet this burden by showing that the offender fits within any of the three subcategories of s. 753(1) (a). 120 Section 753 (1)(

b) is a second path to finding that a person is a dangerous offender. It also involves a requirement that the offender be convicted of a SPIO. The Crown can meet this burden by establishing the offender has committed an offence or attempted to commit an offence described in (

b) of the definition of serious personal injury in s. 752. 121 The burden of proof rests with the Crown to establish beyond a reasonable doubt the statutory criteria in s. 753 (1)(

a) or (

b) have been met. If they do, the dangerous offender application succeeds. The offender must be declared a dangerous offender. The criteria under s. 753(1) are disjunctive. That is, an offender may be declared a dangerous offender if the evidence establishes that he/she meets any one of the four criteria under subsection (1)(

a) or (b): see R. v. Lewis (1984), 46 O.R. (2d) 289 (C.A.) . 122 As stated in s. 753(4) when the offender meets the requirements of s. 753(1)(

a) or (

b) and is declared a dangerous offender, the court must impose either an indeterminate sentence, a determinate sentence for the offence for which the offender has been convicted and order him to be subject to long-term supervision for a period that does not exceed ten years, or impose a sentence for the offence for which the offender has been convicted. 123 As stated in 753(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 SPIO. 124 As stated in s. 753(5) if the offender is not found to be a dangerous offender, the court may treat the application as a long-term offender application, and either declare the offender to be a long-term offender or conduct another hearing, or impose a sentence for the offence for which the offender has been convicted.

If the offender is found to be a long-term offender, the court shall impose a sentence for the offence for which the offender has been convicted and order the offender be subject to long- term supervision for a period that does not exceed ten years. (s. 753.1(3)) Serious Personal Injury Offence (SPIO) 125 SPIO is defined in s. 752 as follows:

“serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychologicaldamage on another person, and for which the offender may be senten

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