R. v. C., 2014 ONCA 312

Her Majesty the Queen v. I.M.C. [Indexed as: R. v. C. (I.M.)] Ontario Reports Court of Appeal for Ontario, Cronk, Epstein and Benotto JJ.A. April 23, 2014 120 O.R. (3d) 1 | 2014 ONCA 312 Case

Summary Criminal law — Appeal — Fresh evidence — Accused sexual offender convicted of sexual offences against 16 children and admitted had offended against about 100 — Accused using ruse to entice underage girls to have sexually explicit conversations with him while he was detained — All experts agreeing accused was psychopath — Accused taking sex-drive reducing medication before sentencing — Sentencing judge rejecting opinions of two experts that accused was potentially treatable and accepting evidence of third psychiatrist that accused's risk could not be safely managed in the community — Trial judge declaring accused to be dangerous offender — Fresh evidence only adding additional opinion on side of experts whose opinions trial judge had already weighed and rejected — Fresh evidence not admitted as lacking sufficient probative value to establish that could reasonably have been expected to have affected the result — Trial judge's finding entitled to deference — Appellate court not proper forum to adjudicate whether accused's current allegedly decreased risk establishes current need to detain him in custody — Evidence of progress since sentencing not establishing error by trial judge and should be dealt with by parole board not appellate court.

Criminal law — Dangerous offenders — Accused sexual offender convicted of sexual offences against 16 children and admitted had offended against about 100 — Accused using ruse to entice underage girls to have sexually explicit conversations with him while he was detained — Trial judge declaring accused dangerous offender — Accused seeking to adduce fresh evidence that now was effective treatment for psychopaths — Issue squarely before trial judge who weighed two opinions saying accused treatable and manageable in community and third saying risk could not be reduced to acceptable level — Trial judge rejecting evidence that could reduce accused psychopath's high risk of further violent or sexual offences to level where could be controlled as long-term offender — Fresh evidence only adding additional opinion on side of experts whose opinions trial judge had already weighed and rejected — Fresh evidence not admitted as lacking sufficient probative value to establish that could reasonably have been expected to have affected the result — Trial judge's finding entitled to deference — [page2 ]Appeal not proper forum to adjudicate whether accused's current allegedly decreased risk establishing need to detain him in custody — Evidence of progress since sentencing not establishing error by trial judge and should be dealt with by parole board not appellate court.

The accused pleaded guilty to 16 sex-related offences involving numerous children. He then admitted to sexually offending against approximately 100 children. While he was in pre-sentence custody, he telephoned approximately 175 young girls between the ages of eight and 12 and engaged them in sexually explicit conversations. He scored extremely high on the Psychopathy Checklist-Revised. The sentencing judge had before her the opinions of three psychiatrists.

The accused was taking sex-drive reducing medication before sentencing, and his self-report regarding the effects of that medication was considered by the experts in assessing his risk. According to two of those experts, there was a reasonable possibility that the accused could be treated and his risk reduced to a level where he could eventually be safely managed in the community.

The third expert expressed concern regarding the accused's self-reported claims of reductions in his sex drive through drug treatment in light of his history of unreliable self-reporting and his potential for manipulation, and assessed the accused as a poor candidate for treatment and that his risk of future sexual or violent offences remained high. The sentencing judge accepted the third expert's opinion that multiple factors suggested an inability to control the accused's risk in the community. She designated the accused as a dangerous offender and imposed an indeterminate sentence.

The accused appealed and applied to adduce fresh evidence in the form of the report of a fourth forensic psychiatrist that effective treatment now exists for psychopaths such as the accused. Held , the application and the appeal should be dismissed.

Insofar as the fresh evidence related to the accused's treatability and the existence of effective treatment modalities for psychopaths, theproposed "fresh evidence" was not in fact fresh, but merely added another voice to the opinions before the sentencing judge. Thesentencing judge rejected the opinions that there was a reasonable possibility of containing the accused's risk in the community through acombination of pharmacological and psychological treatment, and she was entitled to do so. The issue of whether psychopaths can beeffectively treated was squarely in play before the sentencing judge.

Her reasons indicated that she was alive to that issue and that sheconsidered the conflicting expert evidence concerning the accused's treatability. The trial judge made findings of fact that were groundedin the evidence that she accepted. The proposed evidence could not be expected to have affected the result at trial. Insofar as it related tothe accused's post-sentence performance, the proposed evidence related to matters which should be dealt with by the parole board, ratherthan on appeal. R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J.

No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193,14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171; R. v. Sipos, [2012] O.J. No. 5212, 2012 ONCA 751, 298 O.A.C. 233, 297 C.C.C. (3d)22, 106 W.C.B. (2d) 4 [Leave to appeal to S.C.C. granted [2013] S.C.C.A. No. 157], apld Other cases referred to R. v. A. (J.A.), [2011] 1 S.C.R. 628, [2011] S.C.J. No. 17, 2011 SCC 17, 413 N.R. 1, 2011EXP-1192, J.E. 2011-642, 275 O.A.C. 6, 332D.L.R. (4th) 235, 268 C.C.C. (3d) 135, 268 C.C.C. (3d) 135, 84 C.R. (6th) 42, 94 W.C.B. (2d) 331; R. v. Currie, (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J.

No. 10, 146 D.L.R. (4th) 688, J.E. 97-1141, 115 C.C.C. (3d) 205, 7 C.R. (5th) 74, 34 W.C.B.(2d) 264; [page3 ]R. v. Guilford, [1999] O.J. No. 4894, 44 W.C.B. (2d) 523 (S.C.J.); R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J.No. 45, 2003 SCC 46, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, J.E. 2003-1825, 186 B.C.A.C. 161, 19 B.C.L.R. (4th)243, 177 C.C.C. (3d) 97, 13 C.R. (6th) 205, 58 W.C.B. (2d) 154, affg [2001] B.C.J. No. 2021, 2001 BCCA 456, 159 B.C.A.C. 255, 158C.C.C. (3d) 155, 51 W.C.B. (2d) 296; R. v. L. (T.), [2008] O.J. No. 4569, 2008 ONCA 766; R. v.

Lévesque, [2000] 2 S.C.R. 487, [2000]S.C.J. No. 47, 2000 SCC 47, 191 D.L.R. (4th) 574, 260 N.R. 165, J.E. 2000-1934, 148 C.C.C. (3d) 193, 36 C.R. (5th) 291, 47 W.C.B.(2d) 351; R. v. M. (J.), (ON CA), [2001] O.J. No. 3055, 147 O.A.C. 388, 156 C.C.C. (3d) 97, 5 C.R. (6th) 162, 50W.C.B. (2d) 507 (C.A.); R. v. M. (P.S.), (ON CA), [1992] O.J. No. 2410, 59 O.A.C. 1, 77 C.C.C. (3d) 402, 17 W.C.B.(2d) 570 (C.A.); R. v. M. (R.), [2007] O.J. No. 4856, 2007 ONCA 872, 228 C.C.C. (3d) 148, 231 O.A.C. 198, 76 W.C.B. (2d) 211 [Leaveto appeal to S.C.C. refused [2008] S.C.C.A. No. 91]; R. v. Payne, (ON SC), [2001] O.J.

No. 146, [2001] O.T.C. 15,41 C.R. (5th) 156, 49 W.C.B. (2d) 82 (S.C.J.); R. v. Ramgadoo, [2012] O.J. No. 6149, 2012 ONCA 921, 300 O.A.C. 149, 293 C.C.C.(3d) 157, 104 W.C.B. (2d) 1066; R. v. Reeve, [2008] O.J. No. 1680, 2008 ONCA 340, 236 O.A.C. 92, 57 C.R. (6th) 163, 233 C.C.C. (3d)104, 78 W.C.B. (2d) 129; R. v. Smith, (ON CA), [2001] O.J. No. 4981, 154 O.A.C. 51, 161 C.C.C. (3d) 1, 52 W.C.B.(2d) 223 (C.A.) Statutes referred to

An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, thePrisons and Reformatories Act and the Department of the Solicitor General, S.C. 1997, c. 17, s. 4 Criminal Code, R.S.C. 1985, c. C-46, ss. 752.1 [as am.], 753.1(1), (

c) APPEAL by the accused from the dangerous offender designation and the indeterminate sentence imposed by Dorval J. of the OntarioCourt of Justice dated January 23, 2003. Michael W. Lacy, for appellant. Deborah Krick and Jennifer Crawford, for respondent. The judgment of the court was delivered by CRONK J.A.: — A. Introduction [1] The appellant is an admitted and prolific child sex offender. On October 24, 2001, he pleaded guilty to 16 sex-related offencesinvolving numerous children, mostly young girls, between the ages of four and 12.

Most of these offences involved the appellant'saccosting a child in a public place (in a park, school or outside a residence) and taking the child to a private location where the appellantsexually abused the child. Occasionally, the appellant would ask his victim to urinate in his presence. On two occasions, the appellantabducted children in a vehicle. He also repeatedly sexually abused his girlfriend's young daughter, including by attempting intercoursewith her on one occasion when she was eight or nine years of age.

Throughout these [page4 ]abusive incidents, the appellant threatenedto kill the complainant, as well as her mother and brother. [2] After pleading guilty to the predicate offences, the appellant admitted to sexually offending against about 100 children. In addition,

while he was detained in custody prior to sentencing, the appellant telephoned approximately 175 young girls between the ages of eight and 12, pretending to be a radio disc jockey who was involved in running a contest. Using this ruse, he engaged the young girls in sexually specific conversations and asked some of them to touch themselves sexually while he was on the phone with them.

He also asked some of the girls to urinate so that he could hear it. [ 3 ] On January 23, 2003, Dorval J. of the Ontario Court of Justice designated the appellant as a dangerous offender and imposed an indeterminate sentence. [ 4 ] The appellant appeals. For the reasons that follow, I would dismiss the appeal. B. Issues [ 5 ] The appellant raises two grounds of appeal.

First, he argues that the sentencing judge erred in assessing whether there is a reasonable possibility of the eventual control of his risk to the public in the community, by conflating the prospects for the eventual control of his risk in the community with the issue whether he could be "cured". [ 6 ] Second, relying on fresh evidence that he seeks to file on appeal with leave of this court, the appellant submits that the sentencing judge and counsel at the sentencing hearing proceeded on "a false understanding of the science" regarding the prospects for effective treatment of offenders who, like the appellant, suffer from psychopathy.

Based on his fresh evidence, the appellant contends there has been a "sea change" in medical knowledge regarding treatment for psychopaths and that, contrary to the expert evidence accepted by the sentencing judge, effective psychological treatment now exists for such offenders, including him. The appellant says that, viewed through the lens of this fresh evidence, his risk of reoffending can be adequately managed in the community and, therefore, his designation as a dangerous offender amounts to a miscarriage of justice.

He seeks a new sentencing hearing or, in the alternative, the imposition of a determinate period of detention, followed by a ten-year supervision order. [page5 ] C. Discussion

(1) Risk reduction versus risk elimination [ 7 ] The appellant argues that the sentencing judge erred in the manner in which she assessed whether he should be declared a long-term as opposed to a dangerous offender by confusing the issue of his "treatability" -- that is, the possibility of control or reduction of his risk in the community by means of effective treatment -- with the question whether he could be "cured" within the period of a definite sentence or a definite sentence and a maximum 10-year supervision order.

In effect, the appellant submits that the sentencing judge erred by conflating the concepts of risk reduction and risk elimination. [ 8 ] In support of this argument, the appellant points to the last paragraph of the sentencing judge's reasons, which reads as follows: [The appellant] cannot be cured. I am satisfied that the Crown has established that there is no reasonable likelihood that he will be controlled in the community following a determinate sentence. I therefore find that his conduct is intractable. He meets all criteria at sections 753(

a) and (b) [ sic ] and must be sentenced to an indeterminate period of incarceration. [ 9 ] I do not accept that this passage from the sentencing judge's lengthy reasons demonstrates the error urged by the appellant. I say this for the following reasons. [ 10 ]

Section 753.1(1) of the Criminal Code , R.S.C. 1985, c. C-46 sets out specific criteria for the designation of an offender as a long- term offender. The

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

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

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

c) there is a reasonable possibility of eventual control of the risk in the community. [ 11 ] There is no suggestion that the sentencing judge failed to consider whether the appellant should be designated as a long-term offender. She did address this issue when considering the Crown's dangerous offender application, as she was obliged to do: R. v. Johnson , [2003] 2 S.C.R. 357 , [2003] S.C.J. No. 45 , 2003 SCC 46 . Rather, the issue is whether the sentencing judge erred in her

interpretation of the third criterion for the designation of an offender as a long-term offender -- the requirement under [page6 ]s. 753.1(1) (

c) for a showing of "a reasonable possibility of eventual control of [an offender's] risk [of reoffending] in the community". [ 12 ] In Johnson , the Supreme Court considered the purpose and interrelationship of the dangerous and long-term offender provisions of the Criminal Code . 1 The court stated, at paras. 29 and 30: [T]he dominant purpose of preventive detention is "to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb".

Absent such a danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the

long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met .

In order for the sentencing sanctions available pursuant to the long-term offender provisions to reduce the threat associated with an offender who satisfies the dangerous offender criteria to an acceptable level , it must be possible for the same offender to satisfy both the dangerous offender criteria and the long-term offender criteria. (Citations omitted; emphasis added) [ 13 ] The court continued, at para. 32: The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses -- and to do so without resort to the blunt instrument of indeterminate detention.

If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention . (Emphasis added) [ 14 ] The Supreme Court elaborated on the meaning of "a reasonable possibility of eventual control of the risk in the community", at para. 40: If a sentencing judge is satisfied that the sentencing options available under the long-term offender provisions are sufficient to reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level , [page7 ]the sentencing judge cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if all of the statutory criteria have been satisfied. (Emphasis added) [ 15 ] In this case, the sentencing judge did not have the benefit of the Supreme Court's decision in Johnson , which was released after the date of the sentencing judge's ruling on the Crown's dangerous offender application.

However, the sentencing judge did consider the British Columbia Court of Appeal's decision in R. v. Johnson , [2001] B.C.J. No. 2021 , 2001 BCCA 456 , 158 C.C.C. (3d) 155 (the "BC Johnson decision"), which was eventually upheld by the Supreme Court. [ 16 ] Indeed, the sentencing judge quoted extensively from the BC Johnson decision. She stated in part as follows: I have reviewed the case law provided to me on this issue. In [the BC Johnson decision], the BCCA made an extensive comparison of the dangerous offender provisions as they existed prior to and post amendment. It concluded as follows: In

summary then, the dangerous offender designation under the new provisions is designed to ensure that those offenders who are truly dangerous, whose behaviour is unlikely to be modified or controlled, will be sentenced to an indeterminate sentence for the highest degree of state control.

An offender whose conduct or behaviour is not pathologically intractable, in the sense that the offender can at least reach a stage where, though not curable, he or she can be safely controlled in the community and who would likely have been found to be a dangerous offender under the former provisions, may now qualify for long-term rather than dangerous offender status .

This offender would have at least the possibility, when the offender is no longer a risk to the community, to one day be free of state control. (Emphasis added) [ 17 ] The sentencing judge went on to outline the criteria to be met by the Crown in order to establish that an accused is a dangerous offender. In so doing, she again quoted from the BC Johnson decision: The Crown must establish: . . . . .

(4) The pattern of conduct is "pathologically intractable", otherwise defined in [the BC Johnson decision] as "deep-seated or difficult to cure". Evidence of possible treatment control or cure must be considered in this analysis. In the words of Justice Ryan in [the BC Johnson decision]: " . . . if an offender is likely to be cured of his or her condition within the parameters of the appropriate determinate sentence, the condition cannot be said to be intractable and he or she ought not to be declared a dangerous offender.

If the offender may not be cured, but may be controlled in the community within the limits defined by a long-term [page8 ]offender sentence, the offender should not be declared a dangerous offender, but a long-term offender instead ." [Emphasis added.] [ 18 ] The closing paragraph of the sentencing judge's reasons, relied on by the appellant and set out above, must be understood in the context of the entirety of her reasons, including her comments concerning the BC Johnson decision.

In the excerpts from that decision referenced by the sentencing judge, the court clearly stated that only those dangerous offenders whose behaviour is unlikely to be safely modified or controlled in the community should be subject to an indeterminate sentence as a dangerous offender. Conversely, those offenders whose risk can be adequately managed in the community should be declared long-term offenders.

[19] The sentencing judge's references to the BC Johnson decision confirm that she appreciated that the statutory criteria for a long-termoffender designation are directed at the possibility of eventual control of an offender's risk of reoffending through the managedreduction, rather than the elimination, of that risk.

In my view, in light of these references, the appellant's contention that the sentencingjudge conflated the concepts of risk reduction and risk elimination is unsustainable. [20] Other factors also support the conclusion that the sentencing judge was alert to the distinction between, and did not conflate, theprospects for reduction of the appellant's risk of reoffending in the community and his potential to be "cured". She reviewed additionalauthorities, R. v. Guilford, [1999] O.J. No. 4894, 44 W.C.B. (2d) 523 (S.C.J.) and R. v.

Payne, (ON SC), [2001] O.J.No. 146, 41 C.R. (5th) 156 (S.C.J.), which emphasize the distinction between risk reduction -- the focus of s. 753.1(1)(

c) of the CriminalCode -- on the one hand, and risk elimination, on the other hand. [21] In addition, in her reasons, the sentencing judge reviewed the expert psychiatric evidence concerning the appellant's diagnosis, hisrisk of reoffending, and the opinions of the involved psychiatrists regarding treatment of psychopathic individuals, including,specifically, the appellant.

When discussing this expert evidence, the sentencing judge dealt directly with the expert opinions concerningthe appellant's risk of reoffending and their conflicting views about the prospects for effectively managing or reducing that risk in thecommunity, discussed in detail below. [22] Nowhere in the sentencing judge's review of this evidence does she suggest that the appellant could be designated as a long-termoffender only if his mental disorders could be "cured", or if his risk of sexually reoffending could be eliminated or [page9 ]reduced tozero.

To the contrary, as I read her reasons, the sentencing judge remained focused throughout on the evidence bearing on the prospectsfor reducing the appellant's risk of reoffending to an acceptable level in the community. She was right to do so. [23] Finally, the plain language of the concluding paragraph of the sentencing judge's reasons, quoted above, itself belies the erroralleged by the appellant. This paragraph tracks certain of the language used in the BC Johnson decision. For example, the sentencingjudge found that the appellant cannot be "cured" and that his conduct is "intractable".

This language draws on similar terminology usedin the BC Johnson decision: see, e.g., at para. 93. [24] In the same paragraph of her reasons, the sentencing judge alluded to the risk reduction criterion for the designation of an offenderas a long-term offender.

She held: "I am satisfied that the Crown has established that there is no reasonable likelihood that [the appellant]will be controlled in the community following a determinate sentence" (emphasis added). [25] When the sentencing judge's detailed reasons are read as a whole, I have no hesitation in concluding that she did not lose sight of theimportant distinction between the prospects for reducing or controlling the risk of the appellant's reoffending and the potential for thecomplete elimination of that risk by reason of a medical cure for his disorders.

It follows that I see no error in her appreciation of thestatutory criteria for the designation of an offender as a long-term offender, or in her finding that there was no reasonable possibility thatthe appellant's high risk of reoffending could be controlled in the community. [26] I would not give effect to this ground of appeal.

(2) Fresh evidence [27] There are two fresh evidence applications before the court, one brought by the appellant and one brought by the Crown. [28] The appellant's proposed fresh evidence consists of a report, dated July 8, 2008, by Dr. Louis Morissette, a forensic psychiatrist atPhilippe-Pinel Institute in Montreal, prepared approximately five and one-half years after the appellant's sentencing hearing, togetherwith the transcript of the Crown's cross-examination of Dr. Morissette on the content of his report. [29] In his evidence, Dr.

Morissette addresses three main issues: the appellant's amenability to treatment; pharmacological andtherapeutic treatment for persons suffering from psychopathy; and the prospects for eventually controlling the [page10 ]appellant's riskof reoffending in the community. I will discuss his opinions on these issues later in these reasons. [30] Based on Dr.

Morissette's opinions, the appellant contends that the sentencing judge erred in her assessment of his prospects foreffective treatment and, hence, in concluding that his risk of reoffending could not eventually be safely reduced or controlled in thecommunity. [31] The Crown resists the appellant's fresh evidence application on the grounds that Dr.

Morissette's opinions lack probative value inthe circumstances and, when taken with the other evidence at the appellant's sentencing hearing, could not reasonably be expected tohave affected the result at that hearing. [32] On the second fresh evidence application, the Crown seeks leave to file the Parole Board of Canada's 2006 to 2012 decisionsregarding the appellant. The appellant does not oppose the Crown's application. (

a) Psychiatric evidence at sentencing hearing [33] The import of the appellant's fresh evidence must be assessed in the context of the expert psychiatric evidence adduced before thesentencing judge. Evidence from three psychiatrists was tendered at the appellant's 2002 sentencing hearing. First, Dr. John Bradford, aprofessor of psychiatry and director of the forensic service at the Royal Ottawa Hospital, conducted a sexual behaviours assessment ofthe appellant in mid-March 2001. Dr. Bradford did not testify at the appellant's sentencing hearing.

However, his report, dated August29, 2001, was admitted into evidence and considered as part of the evidentiary record at the hearing. [34] Second, during a two-month period in late 2001, Dr. Phillip Klassen, deputy clinical director of the Law and Mental Health Programat the Centre for Addiction and Mental Health ("CAMH") in Toronto, conducted a court-ordered assessment of the appellant under s.752.1 of the Criminal Code. His report, dated February 12, 2002, was filed with the sentencing judge and Dr. Klassen testified.

[ 35 ] Finally, the defence retained Dr. John Fedoroff, also a forensic psychiatrist and practising physician at the Royal Ottawa Hospital, to conduct a psychiatric assessment of the appellant. His report, dated August 31, 2002, was before the sentencing judge and he also testified at the sentencing hearing.

i) The appellant's diagnosis and risk of reoffending [ 36 ] There was no material dispute among these experts regarding the appellant's diagnosis.

It was common ground that [page11 ]the appellant suffers from an anti-social personality disorder (with narcissistic personality traits), sexual paraphilias of heterosexual pedophilia and urophilia (a sexual deviation involving arousal at the contact of urine), and substance abuse disorders. 2 The experts also agreed that the appellant's sex drive is very high, he is deceitful and manipulative, and he is a psychopath. [ 37 ] Similarly, there was little difference of opinion among the psychiatric experts concerning the appellant's risk of reoffending. Dr.

Klassen and two of his colleagues at CAMH scored the appellant at 31 out of 40 on the Psychopathy Checklist -- Revised (the "PCL-R"), a test designed to assess behaviours and personality traits relating to psychopathy. According to Dr. Klassen, a score of 40 on the PCL-R represents the prototypical psychopath. Dr. Bradford scored the appellant at 30.5 out of 40. Dr.

Fedoroff did not conduct his own PCL-R or other phallometric or empirical testing on the appellant. [ 38 ] The appellant's high PCL-R scores indicate that he is in the top 20 percentile of federal penitentiary offenders with respect to psychopathic behaviour. His scores stand in marked contrast to the average PCL-R score for child sex offenders, which Dr. Klassen described as being much lower -- in the range of 16 or 17.

They also indicate that the appellant is at significant risk of violent or sexually violent recidivism, thus raising challenges for his effective treatment and supervision in the community. [ 39 ] The appellant's scores on other empirically based risk-assessment instruments (the Sex Offender Risk Appraisal Guide or "SORAG" and the STATIC 99) were also high. According to both Drs. Klassen and Bradford, these scores suggested a strong correlation with recidivism and a medium to high risk of future violent or sexual reoffending by the appellant. [ 40 ] Given the appellant's test results, Dr.

Klassen offered the opinion that the appellant's long-term risk of violently or sexually reoffending is high, that his risk period will span several decades, that the severity of his reoffending would be proportionate to the presenting circumstances, and that, without aggressive monitoring and supervision, his sexual reoffences will likely involve multiple victims. [page12 ] [ 41 ] Dr. Bradford viewed the appellant as being at medium to high risk of sexually reoffending.

He described the appellant's risk of recidivism as "substantial", and noted in his report: [I]t is clear that there have been serious problems as already outlined, and specifically concerns over the abduction of children and the potential, very serious consequences that might arise. This escalation in his history is of serious concern. [ 42 ] Dr. Fedoroff did not diminish the risk posed by the appellant. He accepted Dr. Bradford's and Dr.

Klassen's risk assessments. (ii) Potential for eventual risk control [ 43 ] The core area of disagreement among the experts concerned the potential for the eventual control of the appellant's risk of reoffending in the community. The experts' opinions on this issue focused on the appellant's treatment prospects or "treatability". [ 44 ] Dr. Klassen regarded the appellant as a poor candidate for treatment given his clinical risk factors and his PCL-R scores.

In his opinion, administration of a powerful testosterone-reducing drug -- Lupron -- might reduce the appellant's risk of reoffending but vigorous external controls (strict community supervision) would also be required. However, he also stated that, given the appellant's history of unreliable self-reporting and a highly unstable lifestyle, even the consistent administration of a long-acting sex-drive reduction drug "may prove problematic". In Dr.

Klassen's view, the appellant's psychopathy, his paraphilias, his history of association with anti- social peers, his involvement in a criminal lifestyle, and his limited education and vocational skills were indicators of when, not whether, he would reoffend. [ 45 ] Dr. Klassen recommended that the appellant not receive any psychologically based sex-offender treatment. In his opinion, the appellant's diagnosis of psychopathy would make it difficult, if not impossible, to treat him psychologically. Dr.

Klassen also stated that there was a growing body of evidence in the forensic psychiatric and psychological literature suggesting that offenders with high PCL-R scores not only do not benefit from psychological treatment but also may, in fact, recidivate sooner and more frequently after such treatment. [ 46 ] Dr. Bradford offered a different opinion concerning the appellant's treatability.

He noted that the appellant had not been treated in the past for his disorders and suggested that, "although there is a substantial risk he will reoffend", there is [page13 ]also "a reasonable possibility that he could be treated by a combination of pharmacological and psychological methods". [ 47 ] Dr. Fedoroff's opinion on the appellant's treatability was similar to that of Dr. Bradford. He agreed that anti-androgen medication would be expected to reduce the appellant's sex drive.

If this occurred, in his opinion, it would be expected to have a significant effect on the likelihood of the appellant's sexually reoffending. According to Dr. Fedoroff, because a sustained course of anti-androgen medication had never been tried with the appellant, it was difficult to assert that he was untreatable. [ 48 ] There was also evidence before the sentencing judge regarding the appellant's response to prior trial treatment efforts. While under the care of Dr.

Bradford at the Royal Ottawa Hospital, the appellant received an anti-androgen drug called cyproterone acetate ("CPA") and sertraline (also known as "Zoloft"). 3 The appellant reported a decrease in sexual interest in female children and fantasies while receiving CPA. In Dr. Bradford's opinion, the appellant's results on follow-up phallometric testing showed that his deviant sexual interest in female children and his arousal responses in relation to pedophilia were decreased by the medication. Drs.

Klassen and Fedoroff stated that repeat phallometric testing does not provide a reliable means for measuring response to treatment or predicting future offending behaviour.

[49] The experts stressed that reliable self-reporting by an offender is key to effective treatment. Dr. Klassen expressed concernregarding the appellant's self-reported claims of reductions in his sex drive. In his view, the appellant's history of unreliable self-reportingand his potential for manipulation, among other factors, suggested that his sex drive did not drop significantly while he was receivingCPA. Dr.

Fedoroff acknowledged that, according to the appellant's own self-reports, the appellant was still actively fantasizing aboutsexual contact with female children and masturbating, as often as two to three times per day, while he was receiving CPA. Dr. Fedoroffagreed that there was no significant reduction in the appellant's sexual preoccupation and masturbation as a result of the CPA. As well,during this medication trial, the appellant reportedly told nursing staff that he experienced little change in his sexual interest. [page14 ] (

b) Sentencing judge's ruling [50] The sentencing judge reviewed the evidence of the appellant's predicate offences, his background circumstances, the impact of hisoffences on his youthful victims, and his sexually inappropriate conduct while in custody (his numerous telephone calls to young girlswhile posing as a disc jockey). She also addressed the psychiatric evidence regarding the appellant, in detail. [51] The sentencing judge accepted the unanimous expert evidence regarding the nature of the appellant's illnesses and his high risk toreoffend.

She found that his conduct while detained -- i.e., engaging young girls by telephone in sexually explicit conversations --combined with his phallometric test scores, described above, confirmed the high probability of his recidivism.

She also accepted Dr.Klassen's evidence that the severity of the appellant's reoffending would be proportional to the presenting opportunities, and that it willlikely involve multiple victims. [52] The sentencing judge dealt directly with the conflicting expert opinions concerning the potential for effective treatment of theappellant and, hence, the prospects for reducing his risk of reoffending in the community. In so doing, she considered the appellant'sscores on the tests administered by Drs.

Klassen and Bradford, the results of his trial period of anti-androgen therapy at the RoyalOttawa Hospital, the likely effectiveness of pharmacological and psychological treatments, and the appellant's demonstrated history ofunreliable self-reporting. She accepted Dr. Klassen's evidence of the lack of established effective treatments for psychopaths, and hisopinion that if treated pharmacologically, the appellant's sex drive "may" be lowered.

She went on to note the absence of evidence as tothe extent of any sex drive reduction that such medication might achieve, the evidence that the appellant was not motivated to change,and the appellant's lack of insight into the consequences of his actions. She also noted Dr. Klassen's testimony that a small number ofstudies have reported higher recidivism rates for psychopaths after psychological treatment. [53] The sentencing judge placed little weight on Dr. Fedoroff's evidence.

She expressly rejected his opinion that without proof of failedtreatment (treatment followed by a reoffence), the appellant could not be viewed as untreatable. She observed that, based on Dr.Fedoroff's evidence, "only a failure of the proposed treatment will show that [the appellant] is untreatable, even if that leads to thepossible or probable offence on a child". In the sentencing [page15 ]judge's view, this stance did not take into account the risk of seriousharm to others should treatment of the appellant fail. [54] The sentencing judge accepted Dr.

Klassen's opinion that multiple factors suggested an inability to control the appellant's risk in thecommunity. These included his multiple paraphilias; his inability to suppress his sexual impulses; the depth of his psychopathy (his anti-social personality disorder); his history of association with anti-social peers; his long-standing involvement in a criminal lifestyle; hislimited education; his lack of empathy and deceitfulness; his lack of relationships; and his superficiality. [55] Based on all these factors, the sentencing judge held: The Court cannot rely on the accused to assist in his own treatment.

The effectiveness of the pharmacological treatment would bedifficult to assess. External control or supervision would therefore be crucial to manage the risk posed by him. The nature of [theappellant's] offences must be considered within this parameter. He does not attempt to establish rapport with children to gain theirconfidence and trust in order to sexually touch them.

He acts impulsively and randomly when the opportunity arises. [56] In the result, the sentencing judge concluded that the Crown had met its burden to establish that "there is no reasonable likelihoodthat [the appellant] will be controlled in the community following a determinate sentence". Accordingly, she declined to exercise herdiscretion to impose a long-term offender designation, instead declaring the appellant a dangerous offender and imposing anindeterminate sentence of imprisonment. (

c) Dr. Morissette's opinions [57] Dr. Morissette does not challenge many key aspects of the expert evidence at the appellant's sentencing hearing. For example, he accepts the description of the appellant's diagnosis, detailed above.4 He also accepts that the appellant has a history of a criminallifestyle; that he acts superficially; that he is unhesitatingly manipulative; that his sexual offences were chronic; and that, at the time ofthe hearing, he was at high risk of reoffending. [58] There are, however, three aspects of Dr.

Morissette's proposed evidence upon which the appellant seeks to rely in aid of his claimthat a new sentencing hearing is required. It is Dr. Morissette's opinion that (1) at the time of the appellant's [page16 ]sentencing hearing,the positive factors supporting the conclusion that there was a reasonable possibility of controlling his risk of reoffending in thecommunity outweighed the negative factors supporting a contrary conclusion, thus justifying the appellant's designation as a long-termoffender; (2) contrary to Dr.

Klassen's evidence, medical studies and experience after the date of the appellant's sentencing hearingsuggest that psychopaths can be effectively treated; and (3) the appellant has benefitted from pharmacological and therapeutic treatmentssince his sentencing hearing, demonstrating that he is amenable to treatment and change, and that his risk of reoffending can be managedin the community. (

d) Test for admitting fresh evidence on appeal [59] The principles governing the admission of fresh evidence on appeal are well established. In R. v. Palmer, (SCC),[1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, at p. 775 S.C.R., the Supreme Court identified the following fourcriteria for the admission of such evidence:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial, (3) the evidence must be credible in the sense that it is reasonably capable of belief, and (4) the evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected tohave affected the result. (Citations omitted) See, also, R. v. A. (J.A.), [2011] 1 S.C.R. 628, [2011] S.C.J.

No. 17, 2011 SCC 17. [60] These criteria for admitting fresh evidence on appeal apply regardless of whether the appeal relates to the verdict or a sentence at acriminal trial: R. v. Lévesque, [2000] 2 S.C.R. 487, [2000] S.C.J. No. 47, 2000 SCC 47, 191 D.L.R. (4th) 574, at para. 16. [61] In this case, the Crown does not challenge the due diligence, reliability and credibility components of the Palmer test -- only thefourth Palmer criterion is in issue. It is the Crown's position that Dr.

Morissette's evidence lacks probative value and, if it had beenbefore the sentencing judge, it could not reasonably be expected to have affected the result at the sentencing hearing. [page17 ] [62] In Lévesque,the Supreme Court held that, in the context of the admission of fresh evidence on appeal, the concepts of admissibilityand probative value overlap. The court explained, at para. 24: To be admissible, it is not sufficient that the fresh evidence meet the prerequisite of relevance.

It must also be credible and such that itcould, when taken with the other evidence adduced at trial, be expected to have affected the result.

Accordingly, the probative value ofthe fresh evidence must, to some degree, be reviewed by a court of appeal when it is determining the admissibility of the fresh evidence.The question to be considered was expressed as follows by McIntyre J. in Palmer: If presented to the trier of fact and believed, would the [fresh] evidence possess such strength or probative force that it might, taken withthe other evidence adduced, have affected the result? (Citations omitted; emphasis in original) See, also, R. v. Reeve, [2008] O.J.

No. 1680, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para. 72. [63] The determination of the appellant's fresh evidence application must be approached in light of the above-noted principles. (

e) Application of the test for admitting fresh evidence on appeal (

i) Potential for eventual risk control [64] I turn first to Dr. Morissette's opinion that, at the time of the appellant's sentencing hearing, the positive factors militating in favourof the conclusion that there was a reasonable possibility of controlling his risk in the community outweighed the factors supporting acontrary conclusion. In my view, there is no basis for admitting Dr. Morissette's opinion on this issue as fresh evidence on appeal. [65] In his report, Dr.

Morissette listed a series of considerations that he described as "positive factors" regarding the "possibility that the[appellant's] risk of reoffending could be manageable or acceptable in the community". He also listed what he termed "negative factors"bearing on this critical issue. He then expressed the following opinion: As of 2002, my opinion is that the positive factors are more preponderant and my opinion is that there was a reasonable possibility that[the appellant] could have been "controlled" in the community. Reading the file since 2003 confirms that impression. [66] I make three points.

First, the considerations identified by Dr. Morissette -- both positive and negative -- were part of [page18 ]theevidentiary record before the sentencing judge. None of them constitutes new or previously unknown information. [67] Second, Dr. Morissette's opinion on this issue is not "fresh" -- it simply represents a concurring expert opinion to those offered byother experts at the sentencing hearing. Recall, for example, Dr. Bradford's opinion that there was a reasonable possibility of containingthe appellant's risk in the community through a combination of pharmacological and psychological treatment. Dr.

Fedoroff said muchthe same thing, emphasizing the risk-reduction features of anti-androgen medication (pharmacological treatment). The sentencing judgeconsidered and rejected these opinions, as she was entitled to do. [68] In R. v. Smith, (ON CA), [2001] O.J.

No. 4981, 161 C.C.C. (3d) 1, 154 O.A.C. 51 (C.A.), at para. 71, SimmonsJ.A. of this court made the following instructive comments regarding the admission of a concurring expert opinion as fresh evidence onappeal: Where proposed fresh evidence consists of "a concurring expert opinion", it may be excluded either because of an absence of duediligence or because the interest of justice in finality of criminal proceedings forecloses its admissibility.

Ultimately what is required isan assessment of whether "the concurring opinion" raises new considerations with sufficient potential to impact the verdict such that theinterests of justice require its admission.

[69] These comments are apposite here. Dr. Morissette's opinion that the "positive factors" regarding the possibility that the appellant'srisk of reoffending could be controlled in the community outweighed the countervailing "negative" factors adds nothing to this issue thatwas not before the sentencing judge. His opinion is only a further voice on one side of the risk containment debate regarding theappellant.

I am not persuaded that his opinion on this issue, if it had been before the sentencing judge, would have affected the result atthe appellant's sentencing hearing. [70] Finally, I would stress that it was the sentencing judge's task to weigh all the evidence concerning the potential for eventual controlof the appellant's risk of reoffending in the community. Her finding on this issue, absent legal error, is entitled to deference from thiscourt. No legal error has been demonstrated here. Nor has it been shown that her finding, on the evidence before her, was unreasonable:see R. v.

Currie, (SCC), [1997] 2 S.C.R. 260, [1997] S.C.J. No. 10, 146 D.L.R. (4th) 688, at paras. 35 and 40; R. v.Ramgadoo, [2012] O.J. No. 6149, 2012 ONCA 921, 293 C.C.C. (3d) 157, at para. 42; R. v. M. (R.), [2007] O.J. No. 4856, 2007 ONCA872, 228 C.C.C. (3d) 148, at para. 53, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 91. [page19 ] (ii) Treatment of psychopaths [71] Dr. Klassen's evidence at the sentencing hearing had two components relevant to the appellant's fresh evidence application.

First, itwas his opinion that no effective psychological treatment options are available for offenders who, like the appellant, suffer frompsychopathy. Second, Dr. Klassen referred to some emerging evidence in the relevant scientific literature suggesting that thepsychological treatment of psychopaths may exacerbate their conditions, leading to earlier and more frequent reoffending. Thisobservation was based on what Dr.

Klassen described in his report as "somewhat of a paradigm shift in the forensic psychiatric andpsychological literature" regarding treatment and risk management interventions for individuals with high PCL-R scores. [72] The appellant acknowledges that, based on his understanding of the applicable science at the time of the sentencing hearing, Dr.Klassen's evidence on these matters was not in error as at 2002. However, the appellant argues that Dr. Morissette's evidencedemonstrates that, in light of current scientific knowledge and experience, Dr. Klassen was "wrong" on both counts.

In particular, saysthe appellant, Dr. Morissette's evidence indicates that effective psychological treatment is available for psychopaths, and that there is noscientific support for the claim that a psychopath's risk of reoffending is enhanced by psychological treatment. In fact, the contrary viewconcerning enhanced risk following psychological treatment, reported in the literature as at 2002 and relied upon by Dr.

Klassen, hassince been withdrawn or modified by the authors of the applicable studies. [73] As a result, the appellant submits, the scientific foundation for the sentencing judge's conclusion regarding the possible containmentof his risk has "shifted". Based on what the appellant describes as this "sea change" in the scientific understanding of the treatment ofpsychopathic sex offenders, he argues that the sentencing judge's disposition was a miscarriage of justice warranting appellateintervention. [74] I would reject this submission. [75] First, there is nothing new in Dr.

Morissette's opinion that effective treatment modalities exist for psychopaths. Once again, hisproposed evidence on this issue adds nothing to what was already before the sentencing judge. [76] Dr. Morissette recommends that the appellant receive medication by injection every month or every three weeks, coupled withpsychological treatment and community supervision on release. The sentencing judge specifically addressed the [page20 ]possibility oftreating the appellant pharmacologically, by administering a sex-drive reduction drug.

She was also cognizant of the appellant's trialperiod of pharmacological treatment prior to the hearing. Having considered the evidence on these issues, the sentencing judge was notsatisfied that this form of treatment would reduce the appellant's risk of reoffending to an acceptable level. This was the sentencingjudge's call to make.

I see nothing to support the conclusion that her finding on this issue was unreasonable. [77] Second, contrary to the appellant's submission, the suggestion that psychopaths may be amenable to psychological treatment doesnot constitute a "sea change" in medical understanding of the treatment options for psychopathic sex offenders. [78] Recall that in his report, Dr. Bradford offered the opinion that there was a reasonable possibility of containing the appellant's risk inthe community through a combination of pharmacological and psychological treatment. Dr.

Fedoroff said much the same thing,although he appears to have placed greater emphasis on the risk-reduction features of anti-androgen medication (pharmacologicaltreatment). As I have said, the sentencing judge considered and rejected these opinions. She was entitled to do so. [79] Third, Dr. Morissette's opinion that, based on current medical knowledge, there is no support for the proposition that psychopathsmay be at an enhanced risk of reoffending after psychological treatment adds nothing new to the information that was before thesentencing judge. To the contrary, Dr.

Morissette's opinion on this issue is virtually identical to that of Dr. Fedoroff. [80] Dr. Fedoroff specifically challenged Dr. Klassen's opinion that psychological treatment is contra-indicated for psychopathicoffenders. He expressly disagreed with Dr. Klassen's suggestion that there was growing empirical evidence that offenders with high PCL-R scores do not benefit from psychological treatment and may reoffend more frequently and more quickly after such treatment.

Dr.Fedoroff noted that some literature then in publication outlined treatment recommendations for institutionalized sex offenders andcommented that one of the creators of the PCL-R test had told him that "there is no scientifically reliable evidence suggesting thatpsychopaths (individuals with high HPCL-R scores) cannot be treated". He also indicated that he was unaware of any definitive long-term treatment study confirming Dr.

Klassen's suggestion that psychopaths may be at enhanced risk of reoffending after or because ofpsychological treatment. [page21 ] [81] Thus, the questions whether psychopaths can be effectively treated and whether their risk of reoffending can be exacerbated bypsychological treatment were squarely in play before the sentencing judge. Her reasons reveal that she was alive to these issues, that sheconsidered the conflicting expert evidence concerning the appellant's treatability, and that she made findings of fact that were groundedin the evidence that she accepted. Dr.

Morissette's opinions on these matters are therefore not "fresh". His is but a fourth voice from thepsychiatric community that speaks to the precise questions addressed by the psychiatric evidence at the sentencing hearing. This is notevidence that is properly admissible as fresh evidence on appeal: see, e.g., R. v. M. (P.S.), (ON CA), [1992] O.J. No.

2410, 77 C.C.C. (3d) 402, 59 O.A.C. 1 (C.A.). [82] At the end of the day, the sentencing judge's conclusion that the appellant's risk could not be adequately controlled in thecommunity rested on a host of considerations, described above. Dr. Klassen's evidence of his understanding of the scientific literatureconcerning the potential deleterious effects of psychological treatment on psychopaths was only one of many factors that led her toconclude that there was no reasonable possibility of managing the appellant's risk in the community. [83] In these circumstances, in my view, Dr.

Morissette's opinions on these issues do not meet the fourth Palmer criterion for admittingfresh evidence on appeal. (iii) Appellant's post-sentence progress [84] The final aspect of the appellant's proposed fresh evidence concerns his suggested post-sentence progress while in custody. In hisreport and testimony, Dr. Morissette offered the opinion that, based on the appellant's therapeutic and pharmacological interventionssince 2002, his response to those treatment interventions, and his willingness to change and accept treatment, there is now a reasonablepossibility that his risk can be managed in the community.

In other words, based on the appellant's progress and treatment gains inprison, there is reason to conclude that the public may be adequately protected from his risk of reoffending. [85] In my opinion, this court's recent decision in R. v. Sipos, [2012] O.J. No. 5212, 2012 ONCA 751, 297 C.C.C. (3d) 22, leave to appeal to S.C.C. granted [2013] S.C.C.A. No. 157,5 is dispositive of whether this evidence is admissible on appeal. [page22 ] [86] In Sipos, this court held that the appellate process ought not to be a forum to reassess a dangerous offender designation based on theoffender's alleged post-sentence progress.

Rather, when it is asserted that an offender has made therapeutic gains while in custody, theparole board is best positioned to decide whether and when the offender should be released into the community. As Doherty J.A.explained in Sipos, at para. 21: Appellate review is fundamentally an error correcting exercise. It looks backward to the decision under appeal. While appellate review issometimes undertaken with the benefit of evidence not before the trial judge, the question always remains -- did the court below fall intoreversible error when it made the decision under appeal?

The possibility that a different decision might be made were the appellate courtto consider the same issue de novo as of the time of the appeal (in this case some 14 years after the trial judge) is irrelevant to appellatereview. [87] Justice Doherty continued, at paras. 22 and 23: The distinction between review for an error at the original proceeding and an assessment of the offender's status at the time of the appealis no mere formalism. The distinction is essential to the principle of finality, a core value in the justice system. If this court decides toallow the appeal, there must be a new sentencing hearing.

Everyone involved in that hearing, including the victims caught up in therelevant matters underlying the dangerous offender proceedings, will be brought back to the dangerous offender hearing stage of theprocess. The Crown must attempt to reconstitute its case years after the fact. More importantly to the proper administration of justice,victims may be required to undergo the further trauma of new proceedings at a time when they could justifiably have believed that thehorror, no doubt associated with reliving the relevant events in a courtroom, was long behind them.

I accept that the difficulties described above are inherent in appellate review whenever it leads to an order for a new hearing. They arenot, in my view, however, necessary to do justice to the appellant in a case like this one, where material relied on to support the claim fora new hearing offers no support for the assertion that there was a meaningful error made at the initial proceeding.

Where an offender'sreal claim is that he has progressed to the point that his status should be reassessed, an appeal from the original decision is not theappropriate mechanism by which to achieve that new assessment. [88] As Doherty J.A. observed in Sipos, the principle of finality is foundational to the criminal justice system. It is fully engaged where,as here, no error at the original sentencing hearing having been established, an offender seeks a reassessment of his or her designation asa dangerous offender based on alleged post-sentence progress, including willingness to undergo treatment.

As Sipos holds, it is thestatutory duty of the parole board to assess an offender's status on a regular basis and to determine whether any changes in his or hercircumstances, if proven, warrant release: see, also, R. v. M. (J.), (ON CA), [2001] O.J. No. 3055, 156 C.C.C. (3d) 97,147 O.A.C. 388 (C.A.); [page23 ]R. v. L. (T.), [2008] O.J. No. 4569, 2008 ONCA 766. [89] I make these additional observations. First, in opposing the admission as fresh evidence of Dr.

Morissette's opinion regarding theappellant's suggested post-sentence treatment gains, the Crown argues that his opinion is speculative, based on incomplete informationand, in effect, of insufficient reliability to alter the conclusion that the appellant's high risk of reoffending is not manageable in thecommunity. [90] In my view, there may well be substance to these criticisms. For example, although Dr.

Morissette suggests that the appellant wasgiven Provera -- an anti-androgen drug -- in June of 2007 and at the time of his report in July of 2008, it is unclear whether and for howlong this treatment continued thereafter, and how the therapeutic effects of the medication were monitored. Moreover, Dr. Morissettesuggested that, "from what we know, [the appellant] responded well". But the basis of this opinion appears to be the appellant's own self-reports and repeated phallometric testing in 2001. Both of these methods for assessing the appellant's response to treatment were rejectedby Drs.

Klassen and Fedoroff and, ultimately, by the sentencing judge. Suffice to say that it will be for the parole board to determine theextent and reliability of the appellant's alleged post-sentence therapeutic gains. [91] Finally, as I have mentioned, the Crown has filed fresh evidence, without objection by the appellant, in the form of the appellant's2006 to 2012 Parole Board of Canada reports. I note that in its most recent report before this court, from 2012, the parole board detailedthe institutional programming undertaken by the appellant and his response to that programming.

The board indicated that the appellant'srisk of general and sexual recidivism remains high, that further therapeutic work by the appellant is necessary -- indeed "imperative" --and that the appellant himself has acknowledged both that he is still attracted to young girls, and that he "continue[s] to have a long wayto go in order to contemplate any form of release".

[ 92 ] It does not appear that Dr. Morissette's report was before the parole board. The reasons for this are unclear. It will be for the parole board to determine, based on Dr. Morissette's evidence if it is filed with the board, whether the appellant's risk has been reduced to a level justifying his release into the community. [page24 ] (

f) Conclusion concerning appellant's fresh evidence [ 93 ] For the reasons given, I conclude that the appellant's fresh evidence application should be dismissed. The proffered fresh evidence either fails to meet the fourth Palmer criterion for admission on appeal or, as I have described, it relates to matters properly to be dealt with by the parole board, rather than on appeal. D. Disposition [ 94 ] Accordingly, I would dismiss both the appellant's fresh evidence application and his sentence appeal. Appeal dismissed. Notes 1 The long-term offender provisions were introduced to the Criminal Code in 1997 (

An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act , S.C. 1997, c. 17, s. 4). 2 The experts' opinions diverged on the nature of the appellant's primary paraphilia. Drs. Bradford and Fedoroff regarded it as urophilia, while Dr. Klassen viewed it as heterosexual pedophilia. However, the experts were unanimous that the appellant suffers from both types of paraphilia. 3 According to Drs.

Klassen and Fedoroff, sertraline may have been administered for the appellant's symptoms of depression, though it may also have the side effect of reducing sex drive. 4 Like Drs. Bradford and Fedoroff, Dr. Morissette regards urophilia, rather than heterosexual pedophilia, as the appellant's primary paraphilia. In this respect, his opinion of the appellant's disorders differs from that of Dr. Klassen. 5 The appeal to the Supreme Court of Canada in Sipos was argued on April 15, 2014. Judgment was reserved. End of Document