R. v. Kebokee, 2018 ONCJ 173

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara​graph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. Kebokee , 2018 ONCJ 173 COURT FILE No: 15-0767 DATE: January 26, 2018 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HER MAJESTY THE QUEEN -AND-

ORVILLE KEBOKEE Before Justice Michael G. March Heard on June 5, 6, 7, 8, 13, 15, 16, 20, 27, November 2, 2017 and January 22, 2018 Reasons for Judgment released on January 26, 2018 PETER NAPIER AND CAITLIN DOWNING………………………………………………… counsel for the Crown ISRAEL S.

GENCHER…………………………………………… counsel for the accused March M.G., J. : TABLE OF CONTENTS Heading Page Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 - Assessment Report 5 - Applicable Provisions of the Code 5 - Public Protection is Paramount 7 - Lesser Measure 7 - Limited Application of the Proportionality Principle to the 8 Predicate Offence - Treatment 9 - Deference 9 - Gladue Factors 10 - The Impact of Boutilier 10 - Overruling Szostak 11 - The Applicability of the Purposes and Principles of Sentencing to D.O.

Proceedings 12 Issue 1 – Serious Personal Injury Offence . . . . . . . . . . . . . . . . . . 13

Issue 2 – Kebokee’s Potential Threat to the Physical and Mental Wellbeing of Others due to a Pattern of Repetitive Behaviour Showing a Failure to Restrain and a Likelihood to Inflict Severe Psychological Damage 14 Issue 3 – Kebokee’s Potential Threat to the Physical and Mental Wellbeing of others due to a Pattern of Aggressive Behaviour Showing a Substantial Degree of Indifference to the Reasonably Foreseeable Consequences on His Behaviour on Others 15 Issue 4 – Should the Court Find the Offender to be Dangerous? 17 Issue 5 – Is there a Reasonable Expectation a Lesser Measure Will Adequately Protect the Public against the Commission by Kebokee of Murder or Further Serious Personal Injury Offence Based on Evidence Adduced at the Hearing? 17 Christian Schmid (Probation Officer) . . . . . . . . . . . . . . . . . . . . . . 22 Scott Munro (Correctional Officer) . . . . . . . . . . . . . . . . . . . . . . . 23 Lindsay Ruscitti (Parole Officer with Correctional Services of Canada) . . . . . 23 Karen Thomson (Employee of Parole Board of Canada) . . . . . . . . . . . . 24 Angela Hayden (Parole Officer with Correctional Services of Canada) . . . . . 26 Issue 6 - How do the purposes and principles of sentencing including Gladue Factors inform any determination to be reached? . . . . . . . 34 - Protection of Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 - Denunciation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 - Specific Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 - General Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 - Separation of Offender from Society where Necessary 35 - Rehabilitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 - Gladue Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 - Reparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 - Promotion of a Sense of Responsibility and Acknowledgement of Harm 42 - Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 - Aggravating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 - Mitigating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 - Parity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

- Non-Deprivation of Liberty Where Less Restrictive Sanctions may be Appropriate in all of the Circumstances 45 Issue 7 – Should the Court Simply Impose a Sentence for the Offence Kebokee Committed without Designation? 46 Issue 8 – Should the Court Impose a Sentence of Two Years or More, and Order Kebokee to be Subject to Long Term Supervision Not Exceeding 10 Years? 47 Issue 9 – Should the Court impose a Penitentiary Sentence of an Indeterminate Length? 47 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Footnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 INTRODUCTION : 1 .

On March 24, 2016, the offender, Orville Kebokee (“Kebokee”) was convicted by His Honour, Mr. Justice G. Radley- Walters, of ‘sexual touching’ contrary to s. 151 of the Criminal Code (“the Code”). Specifically, Radley-Walters J. found Kebokee guilty beyond a reasonable doubt of having engaged in sexual intercourse with one A.S. on multiple occasions between July 1, 2014 and August 31, 2014. Over the aforementioned timeframe, A.S. was 13 years of age. Kebokee was 37. 2 .

On June 6, 2017, the Crown filed Notice, with the consent of the Attorney General of Ontario, of its intention to seek a “dangerous offender” (“D.O.”) designation for Kebokee. Due to illness, Radley-Walters J. was unable to hear the D.O. Application. 3 . On consent of Crown and defence counsel, and by virtue of subsections 669.2(1) and (2) of the Code, I heard the D.O. Application instead of Radley-Walters J. and assumed the role of the sentencing judge. 4 .

Over the course of nine days of evidence heard June 5, 6, 7, 8, 13, 15, 16, 20 and 27, the Crown called eight witnesses in support of its attempt to have Kebokee declared a D.O. The defence chose not to lead any evidence. I do not propose to mechanically review each witness’s evidence. Rather, I will refer only to the relevant aspects of each witness’s evidence as it applies to the issues to be decided. ISSUES: 5 . The Court is called upon to decide the following:

(1) Has Kebokee been convicted of a “serious personal injury offence”?

(2) Does Kebokee constitute a threat to the safety, or physical or mental wellbeing of others, based on a pattern of repetitive behaviour showing a failure to restrain from such conduct, and a likelihood of inflicting severe psychological damage on others through such failure?

(3) Does Kebokee constitute a threat to the safety, or physical or mental wellbeing of others based on a pattern of persistent aggressive

behaviour showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences of his behaviour upon others?

(4) If the Court finds Kebokee to be a threat on the basis of (2) or (3) above, is the Court compelled to declare Kebokee a dangerous offender, or are there other options?

(5) Has there been evidence adduced at the hearing of the Application that there is a reasonable expectation a lesser measure will adequately protect the public against the commission by Kebokee of murder or a serious personal injury offence to allow for a disposition under 7 or 8 below?

(6) How do the purposes and principles of sentencing including ‘Gladue Factors’ inform any determination to be reached by the Court?

(7) Should the Court simply impose a sentence for the offence Kebokee was convicted of?

(8) Should the Court impose a sentence of two years or more, and order Kebokee to be subject to long term supervision not exceeding 10 years?

(9) Should the Court impose a penitentiary sentence of an indeterminate length? THE LAW: Assessment Report 6 . There appears to be little disagreement, if any, between Crown and defence counsel regarding the applicable law. Pursuant to s. 752.1(1) of the Code, my predecessor, Radley-Walters J. ordered the preparation of an assessment report on Kebokee. That assessment is a compulsory piece of evidence which the Court must consider in determining the outcome of a D.O. application. Applicable Provisions of the Code 7 .

The relevant sections of the Code read as follows: s.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, or (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.

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

b) or (

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

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

(

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

section 753.1 applies to theapplication 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. R.S., c. C-34, s. 688; 1976-77, c. 53, s.14; 1997, c. 17, s. 4; 2008, c. 6, s. 42. 8. Further, the Code provides: s. 757 Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit,evidence of character and repute may be admitted (

a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and (

b) in connection with a sentence to be imposed or an order to be made under this Part. R.S., c. C-34, s. 692; 1976-77, c. 53, s. 14;1997, c. 17, s. 5; 2008, c. 6, s. 50. 9. Of course, the offender has a right to be present at the hearing of the D.O. application. The Code states: s. 758 (1) The offender shall be present at the hearing of the application under this Part and if at any time the application is to beheard (

a) he is confined in a prison, the court may order, in writing, the person having the custody of the accused to bring him before thecourt. Public Protection is Paramount 10. As stated by Cronk, J.A. in R. v. G.L. 2007 ONCA 548 , [2007] O.J. No. 2935 (C.A.), (38) “….the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, ‘real world’resourcing limitations cannot be ignored or minimized where to do so would endanger public safety.

The court is required on adangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the releaseof the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between anindividual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter mustprevail.” Lesser Measure 11.

If an offender meets the legislative criteria set out under s. 753(1) of the Code, and is declared a D.O., the Court must imposea penitentiary sentence of an indeterminate length. That is the default position. However, if the Court is satisfied by the evidenceadduced at the hearing of the application that there is a reasonable expectation a lesser measure under paragraph 4(

b) or (

c) of s. 753 canadequately protect the public, only then can the Court look to other options – In R. v. D.B. 2015 ONSC 5900 , [2015] O.J. No.5138, Hill J. held: “…at a minimum, the phrasing ‘reasonable expectation’ requires an evidence based evaluation, based upon objectively valid andrelevant criteria with a probabilistic assessment exceeding chance, speculation, hope or mere possibility that something will happen.”

12. Put another way, there must be some persuasive evidence to support a finding that a lesser sanction can adequately reduce therisk to the public posed by the offender. In R. v. McCallum (ON CA), [2005] O.J.

No. 1178 (C.A.), Feldman, J.A.explained, (44) “…Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation andthe amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long termoffender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specificoffender can be treated within a definite period of time: R. v. Poutsoungas (1989), (ON CA), 49 C.C.C. (3d) 388(Ont. C.A.); R. v.

Higginbottom (2001), (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.).” 13. Thus, the evidence that an offender can be controlled by a lesser sentence must show that within a definite period of time, theoffender in question can be sufficiently treated (and/or monitored), such that the goal of public protection is maintained. Limited Application of the Proportionality Principle to the Predicate Offence 14. The sentencing principle of proportionality does not permit a Court to decline declaring an offender dangerous, where thepredicate offence would not attract an indeterminate sentence. In R. v.

Bird [2015] SKCA 134, Whitmore J.A. explained the necessityfor taking a holistic approach in reviewing an offender’s criminal past without a preoccupation for the triggering offence. He held: (47) “…Courts in dangerous offender applications do not consider only the predicate offence, but rather the entire criminal history ofthe offender.

Judges are required by the legislation to determine whether the accused committed a serious personal injury offence unders. 753(1), whether it forms part of a pattern of violent or sexual behaviour causing harm, and whether long-term supervision anddeterminate imprisonment can be reasonably expected to protect the public from murder or another serious personal injury committedby the accused. It is not open, therefore, for judges to find that detention in a penitentiary for an indeterminate period isdisproportionate to the predicate offence.” Treatment 15.

To state the obvious, the lack of any treatment offered to an offender to attempt to rehabilitate himself or herself during aperiod of incarceration or past community supervision does not translate to resort to a lesser sanction than designation as a D.O. In R. v.H.B., 2011 ONSC 1413 , [2011] O.J. No. 1049 (SCJ), Murray J. wrote: (59) “In R. v. Simon (2008) 2008 ONCA 578 , O.J. 3072, the Ontario Court of Appeal stated that the absence of priortreatment efforts are relevant to, but in no way determinative of, the assessment required by the trial judge.

It is perhaps unfortunatethat intense counselling and treatment, for example, intense sex offender treatment, has not been made available to Mr. H.B.. Dr.Hucker concludes that Mr. H.B.’s ‘potential to benefit’ from various programs which might be available is questionable. Dr. Gojer, inhis testimony, agreed that, at the end of the day, there is no difference between him and Dr. Hucker on this point. There is no doubt thatintense treatment and interventions are required for this offender. Neither expert forensic psychiatrist disputes this conclusion.

However, at this point, no one can predict whether such response will be successful in helping this offender to manage his behaviour inthe community.” Deference 16. Where a sentencing judge is uncertain as to the risk posed to the public by an offender, if released following a determinatesentence, an indeterminate sentence should be imposed and deference should be shown to the Parole Board of Canada (“the Board”),formerly known as the National Parole Board. In R. v. R.M. [2005] O.J.

No. 4977, Molloy J. held at paragraph 122, (127) “Obviously, if I was in a position at this point to determine there was a “reasonable possibility” of eventually controlling the riskof reoffence, then it would be improper to defer that determination to the National Parole Board: R. v. Currie, (SCC), [1997] 2 S.C.R. 260. However, based on what information I know now, all I can say is that I would hope the risk couldeventually be managed and that I cannot rule out the possibility of that occurring someday. But I also cannot conclude that there

currently exists a basis for saying there is a “reasonable” possibility of eventually controlling risk and I equally cannot predict when in the future, if it all, such a possibility could be “reasonably” predicted. I do believe that the National Parole Board will be in a better position to make that prediction closer to the actual date of potential release and after Mr. R.M. has had the advantage of various treatment programs. 17.

Seven years from the date of the offender’s arrest, the manageability of the offender’s risk, if released into the community, will be reviewed by the Board, assuming the offender is designated dangerous. Every two years thereafter, the offender will be entitled to a further review, if release is denied on the first eligibility date. To this extent, the offender’s sentence is ‘indeterminable’. However, the offender’s incarceration is not interminable. Much will turn on how the offender applies himself or herself to rehabilitative programs offered within a federal institution. 1 Gladue Factors 18.

The general principles of sentencing codified in s. 718 to s. 718.2 of the Criminal Code apply to dangerous and long-term offender applications. Accordingly, Gladue Factors must be considered and weighed by the sentencing judge. 19. The sentencing judge must determine whether there exists: (

a) unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the Court, and (

b) types of sentencing procedures or sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection. 20. In R. v. Radcliffe [2017] ONCA 176, Watt J.A. constrained the significance to be attributed to Gladue considerations in a D.O. application.

He described them as being of “limited relevance’ in light of the “paramount sentencing objective of protection of the public.” Where they do apply is in the analysis of whether there is a reasonable expectation that a lesser measure will adequately protect the public based on the evidence adduced at the hearing. The Impact of Boutilier 21. Following oral submissions by Crown and defence counsel made November 2, 2017, the Supreme Court of Canada released its decision in R. v. Boutilier [2017] SCC 64 on December 21, 2017.

Speaking for an eight member majority of a full panel of the Court, Cote J. reviewed extensively the D.O. provisions of the Code in addressing s.7 and s.12 challenges to the D.O. regime under the Canadian Charter of Rights and Freedoms . 22. The Court held that the D.O. scheme is structured as a “two-stage” process. Section 753(1) sets out the statutory requirements to be met before an offender can be declared dangerous (ie. the “designation” phase). Subsections 753(4) and (4.1) address the sentencing of the D.O. (ie. the “penalty” phase). 23.

The resolution of the Issues 1 through 6 above comprise the designation phase of Kebokee’s D.O. hearing. Issues 7 through 9 deal with the appropriate penalty to be imposed. Overruling Szostak 24. In R. v. Szostak [2014] ONCA 15 , the Court of Appeal for Ontario concluded that intractability is no longer an element of dangerousness since it is incompatible with the exercise of discretion to impose a determinative sentence. The Court of Appeal reasoned that an offender whose conduct is intractable should rarely, if ever, be eligible to receive a lesser sentence.

25. Cote J. disagreed. She held that the purposes of prospective evidence at the designation and penalty phases are different. The designation component of the D.O. hearing assesses the future threat posed by an offender. The penalty component focusses on the imposition of a fitting sentence to manage the established threat. At the penalty phase, the sentencing judge must turn his or her mind to whether the risk of an offender’s behaviour can be adequately managed short of an indeterminate sentence. 26.

Cote J. goes on to explain that at the designation phase, offenders will not be designated as dangerous if their treatment prospects are compelling to the extent that the sentencing judge is unable to conclude beyond a reasonable doubt that: a. they pose a high likelihood of harmful recidivism, or b. their violent pattern is intractable. Even if the treatment prospects are not sufficiently persuasive to affect the judge’s finding on dangerousness, they must still inform the judge’s decision in tailoring the sentence required to adequately protect the public.

Consequently, treatability is a relevant and necessary consideration at both the designation and penalty phases of the D.O. hearing. 27. Cote J. leaves sentencing judges with a cautionary note regarding the high threshold to be met by the Crown. She held at paragraph 45: “A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention.” The Applicability of the Purposes and Principles of Sentencing to D.O. Proceedings. 28.

Cote J. in Boutilier at paragraph 53 leaves little doubt that the purposes and principles of sentencing addressed in sections 718 to 718.2 of the Code apply to D.O. proceedings. Any error in the application of those principles by a sentencing judge is reviewable on appeal. They are to be considered in every sentencing decision, whether made under the D.O. or long-term offender regimes. 29. The offender in Boutilier contended that the reference to the objective of public protection solely in s.753(4.1) of the Code excluded other sentencing objectives and principles set out in sections 718 to 718.2.

Cote J. rejected this argument. She concluded at paragraph 56: “It is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing their ability to look at the whole picture . Emphasis on the public safety component is consistent with the fact that public protection is the general purpose of

Part XXIV of the Code . . . Further, because the enhanced objective of public safety parallels the justification for imposing an indeterminate detention, such emphasis is also consistent with the principles of sentencing generally.” 30. Cote J. went on to hold that sections 753(4) and (4.1) are essentially a codification of the decision of the Supreme Court of Canada in R. v. Johnson [ 2003] SCC 46 . Subsection 4 of s.753 lists the sentencing options available to the judge. Subsection 4.1 constrains the exercise of discretion demanded by Johnson.

When the Criminal Code was amended in 2008, it replaced mandatory indeterminate detention with an obligation on the part of the sentencing judge to tailor a disposition which is appropriate for the circumstances of the particular offender and consistent with the principles of sentencing. In doing so, Parliament conferred a discretion to apply generally sentencing principles for the benefit of the offender.

An offender’s moral culpability, the seriousness of the offence committed, mitigating factors, if any, and principles developed for indigenous offenders are each part of the sentencing process under the D.O. scheme. They are each relevant to deciding whether a lesser measure would adequately protect the public. 31. The sentencing judge is obliged to conduct a “thorough inquiry” into the possibility of control in the community.

It is not until the judge has exhausted the least coercive sentencing options to address the question of risk based on the evidence adduced that indeterminate detention can even be considered. It is the final option.

32. The framework to be followed, and endorsed by Cote J., was devised by Tuck-Jackson J. of the Ontario Court of Justice in R.v. Crowe, No. 10-10013990, March 22, 2017. Cote J. explained the procedure as set out below: “First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequatelyprotect the public against the commission of murder on a serious personal injury offence, then that sentence must be imposed.

If thecourt is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that aconventional sentence of a minimum of two years of imprisonment, followed by a long term supervision order for a period that does notexceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injuryoffence. If the answer is “yes”, then that sentence must be imposed.

If the answer is “no” then the court must proceed to the third stepand impose a detention in the penitentiary for an indeterminate period of time.” 33. The long-term offender type sentence remains an option for D.O.’s who can be controlled in the community in a mannerwhich adequately protects the public from murder or a serious personal injury offence. Where they cannot be so controlled, the lastoption – a sentence of indeterminate detention – must be imposed. ISSUE 1 – Serious Personal Injury Offence 34. A serious personal injury offence by definition under s. 752 of the Criminal Code is: (

a) An indictable offence . . . . involving (

i) the use or attempted use of violence against another person, or (ii) conduct inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more . . . 35. Kebokee was convicted of sexual touching contrary to s. 151 of the Code. The Crown proceeded by indictment. Themaximum penalty is fourteen years. Thus the offence is one for which Kebokee could receive a sentence of ten years or more. 36. In R. v.

Stuckless (1998), (ON CA), 41 O.R. (3d) 103 (Ont C.A.) and R.c.B. (G.) [2005] NBCA 72, boththe Court of Appeal for Ontario and the New Brunswick Court of Appeal respectively characterized the sexual abuse of a child as aninherent form of violence, which is severely psychological in its impact. Indeed, in her Victim Impact Statement, A.S. confirmed that shewas depressed and suicidal as a result of what Kebokee did to her. She cut herself. She overdosed twice. She continuously relives theincidents (i.e. the repeated acts of sexual intercourse Kebokee engaged in with her). 37.

Kebokee’s conduct inflicted nothing short of severe psychological damage upon A.S. ISSUE 2 – Kebokee’s Potential Threat to the Physical and Mental Wellbeing of Others due to a Pattern of Repetitive BehaviourShowing a Failure to Restrain and a Likelihood to Inflict Severe Psychological Damage 38. Kebokee committed the predicate offence between July and August 2014 – just months after he was released from thepenitentiary. At the time, Kebokee was 37. His victim, A.S. was 13. She was vulnerable. She had little in the way of supervision fromher grandparents who were raising her.

The sexual offending continued at a frequency of approximately twice per week over thesummer of 2014. It involved vaginal and anal intercourse. 39. Roughly two years earlier in February 2012, Kebokee received a sentence of 27 months taking into account 3 months pre-sentence credit for the offence of sexual interference. Kebokee’s criminal conduct involved 10 to 12 instances of sexual intercourse witha 15 year old girl. 40. Kebokee, at least in his statements to Dr. Ramshaw, fails to appreciate the heinous nature of his offences. He believes theyare not serious.

41. The Crown has argued that a pattern of sexual offending can be made out if one looks back to Kebokee’s convictions as ayouth in May and July 1992. In my view, too significant a gap exists between these sexual convictions from 20 or more years ago, andhis sexual offending in 2011 and 2014. Kebokee’s victim in May 1992 was a year older than he was. At the time she was 16. He was15. 42. Later in July 1992, Kebokee exploited sexually a five year old boy. He performed oral sex on his victim, and inserted afinger in his anus.

Although the age gap is similar in nature to what occurred with Kebokee’s latest two sexual victims, there is noevidence that he sexually offended between July 1992 and February 2012. Two decades have elapsed. However, Kebokee did not stopoffending – his criminal record continued unabated from the early 90’s to the present day. Recently though, the character of hisoffending seems to have changed. 43. Kebokee’s criminality of late has developed a marked, pernicious penchant for young girls. In R. v. Byers [2011] O.J. No.3129 (SCJ) and R. v. Robinson [2009] O.J. No. 5373, D.

Tomaso J. and MacDonnell J. respectively found that a pattern of repetitivebehaviour could be made out from two similar occurrences. 44. Although Dr. Ramshaw testified that in her view, Kebokee did not have a coercive preference for minors, she did opine that hehas a “…take what I want when I want” approach. Further, she diagnosed Kebokee with antisocial personality disorder (with significantpsychopathy), borderline and narcissistic traits, an opiate use disorder (severe) and attention deficit hyperactivity disorder.

Although aparaphilic disorder could not be ruled out, his sexual offending was more characteristic of exploitation and opportunism. Using theSTATIC99R actuarial tool to predict the risk of sexual re-offence, she scored Kebokee as a 6, the highest possible score. Dr. Ramshawexplained that Kebokee is approximately 3.77 times more likely to recidivate sexually than the average sex offender. 45. In interviews with Dr. Ramshaw, Kebokee denies he has a sexual problem. His complete lack of insight does not bode wellfor his propensity to visit severe psychological harm on young females, if released into the community.

He is a criminal opportunistwith apparently zero appreciation for the impact of his conduct on others. 46. I am satisfied beyond a reasonable doubt that the Crown has demonstrated Kebokee’s potential threat to the physical andmental wellbeing of others due to a pattern of repetitive behaviour showing a failure to restrain and a likelihood to inflict severepsychological damage.

ISSUE 3 – Kebokee’s Potential Threat to the Physical and Mental Wellbeing of Others Due to a Pattern of Aggressive BehaviourShowing Substantial Degree of Indifference to the Reasonably Foreseeable Consequences of His Behaviour on Others. 47. Kebokee has a long and varied criminal record. It starts on October 9, 1991 when he was six days past his fifteenth birthday. He was 39 at the time he was convicted of the predicate offence on March 24, 2016.

Save a handful of exceptions, Kebokee has rackedup criminal convictions in every calendar year since 1991, and multiple convictions in many instances within a single calendar year. 48. Of the eighty or more entries on his criminal record, five were for sexual assault and two for sexual touching. His othercrimes of violence include four assaults between 2002 and 2011. To boot, there are numerous institutional convictions for assault orthreatening the commission of an assault between 1998 and 2016. Mr. Kebokee has proven himself to be an aggressive, volatileindividual over his long criminal career. 49. In R. v.

J.Y. (SK CA), [1996] S.J. No. 61, Sherstobitoff J.A. of the Saskatchewan Court of Appealexplained the meaning of the word “persistent” in s. 753(1)(a)(ii) as follows: “. . .the Oxford Concise Dictionary defines the word persistent as meaning “enduring” or “constantly repeated.” The judge made noerror in finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committedthe offences extended from 1964 to 1992 without any significant periods during that time when no offences were being committed.” 50.

Granted many of Kebokee’s offences are property related, but often there is a high risk that in the commission of a propertyoffence, violence can ensue. For example, the homeowner who awakes in the course of a break and enter may confront the intruder.

The loss prevention officer in the midst of a shoplifting incident may impede the getaway of the thief. The well-meaning neighbour or member of the public may attempt to prevent the theft of property known to belong to someone other than the suspect by conducting a citizen’s arrest. Last but not least, police may pursue the person believed to have committed a property crime and violence may erupt. 51. Driving offences carry many risks of violence as well. Aggression can manifest itself not just in the driving itself, but with the person pursued and arrested.

On April 28, 1999, Kebokee was convicted of dangerous driving. He dragged his victim – the person attempting to prevent the theft of his vehicle – 100 feet and made a quick right turn to prevent the property owner from entering his own vehicle. The victim managed to hold on for another 200 or 300 feet before losing his grip on the front passenger door. The victim fell on the roadway and struck his head. Even though the offence itself, without knowledge of the underpinning facts, might not evoke a graphic image of violence, it was replete with aggression on Kebokee’s part. 52.

Impaired and/or dangerous driving can, of course, carry an enormous potential for violence to be visited upon innocent users of the highways, or pedestrians. Kebokee has been convicted of dangerous driving on January 30, 1998, October 23, 1998, April 28, 1999, and August 13, 2002. He has been convicted of impaired driving on November 2, 1999 and August 13, 2002. He persists in driving and has been convicted of driving disqualified on November 2, 1999, December 19, 2000, August 13, 2002, October 11, 2002, September 29, 2008, November 26, 2009, May 12, 2011and January 9, 2012.

Orders of the Court commanding Kebokee not to engage in certain conduct appear to go unheeded time and again. 53. Further, Kebokee is indifferent to a substantial degree in acknowledging the reasonably foreseeable consequences of his conduct, as it impacts others. In diagnosing Kebokee with Antisocial Personality Disorder, Dr. Ramshaw commented that Kebokee met all of the symptomatic criteria for such a condition. He lacked remorse for or was indifferent toward the people he hurt, mistreated, or stole from. He exhibited borderline narcissistic personality traits. He had a limited capacity for empathy.

All of this demonstrates that Kebokee is a continuing threat to the safety and mental wellbeing of others. 54. I am satisfied that the Crown has demonstrated beyond a reasonable doubt Kebokee’s potential threat to the physical and mental wellbeing of others due to a pattern of aggressive behaviour showing a substantial degree of indifference to the reasonably foreseeable consequences of his behaviour on others. ISSUE 4 – Should the Court Find the Offender to be “Dangerous”? 55.

Having determined that Kebokee committed a serious personal injury offence on May 24, 2016 and that he is an offender who constitutes a threat to the physical and mental wellbeing of others due to a pattern of: (

i) repetitive behaviour showing a failure to restrain such conduct and a likelihood to inflict severe psychological damage in future, and (ii) aggressive behaviour showing a substantial degree of indifference to the reasonably foreseeable consequences of his behaviour on other, I will have no option but to designate Kebokee a ‘dangerous offender’ and impose an indeterminate period of detention, unless there is a reasonable expectation that a lesser measure will adequately protect the public from his commission of murder or a further serious personal injury offence based on the evidence adduced during the D.O. hearing.

ISSUE 5 – Is there a Reasonable Expectation a Lesser Measure Will Adequately Protect the Public against the Commission by Kebokee of Murder or a Further Serious Personal Injury Offence Based on Evidence Adduced at the Hearing? The Prospective Evidence 56. The single most important piece of prospective evidence adduced at Kebokee’s D.O. hearing was, of course, Dr. Ramshaw’s report and her viva voce testimony. Dr. Ramshaw has been practising in the field of forensic psychiatry for over 17 years. She has prepared in the past a significant volume of D.O./Long-Term Offender assessments.

She has been qualified as an expert witness and has given evidence in numerous applications under

Part XXIV of the Code. 57. Under s.752.1 of the Code, Dr. Ramshaw produced a detailed, comprehensive report on Kebokee. She utilized various actuarial tools to assess Kebokee. She found him to be at “. . .a high risk of general, violent and sexual re-offending.” She summarized

that: “Mr. Kebokee has a high PCL-R 2 score; he was in the second highest category on the SORAG 3 and in the highest on the STATIC 99 4 . Further he has numerous dynamic risk factors. His risk would increase in the context of opportunity involving access to victims and to substances. Mr. Kebokee has led a criminal lifestyle with few boundaries, exacerbated by opioid dependence. While his offences were neither extreme nor sadistic, they were frequent, exploitative and in the service of his immediate needs.

Despite supervision, structure and sanctions, he has failed to restrain his behaviour, and there has been no evidence of decline over time. He has had a relatively short survival period in the community prior to re-offending, and he has not led a pro-social lifestyle for any significant time as an adult.” 58. What warrants repeating are the psychiatric diagnoses reached by Dr. Ramshaw. They included:

a) Antisocial Personality Disorder (with Conduct Disorder in childhood and significant psychopathy)

b) Borderline and Narcissistic Personality Traits

c) Opiate Use Disorder (severe)

d) Substance Use Disorders (alcohol, cannabis, cocaine)

e) Attention Deficit Hyperactivity Disorder (by history). 59. In more fully explaining Kebokee’s antisocial personality disorder, she added that it is driven by “. . .pro-criminal sentiments, anger, sensation seeking (including drugs), a disregard for others and a need for immediate gratification.” 60. Dr. Ramshaw categorized Kebokee’s history of offending into two streams – non-sexual and sexual. On the former, she wrote: “Mr.

Kebokee’s non-sexual violent offences, including domestic violence, appeared to have been primarily impulsive in the context of affective dysregulation with anger and pro-criminal sentiments. His anger tends to have a rapid onset associated with not getting his immediate needs met, slights, and interpersonal conflict. In keeping with the psychological testing, he also has a perceived need for rapid relief from the anger resulting in impulsive behavioural dyscontrol.” 61. On the latter, she opined: “Mr. Kebokee’s sexual offences appeared to be exploitative and opportunistic in nature.

He has gravitated toward vulnerable individuals, in the context of opportunity (victim access), with poor judgment and a need for immediate (sexual) gratification. Substance abuse has likely contributed to some of this behaviour with associated disinhibition and poor judgment. Though four of his prior sex offences occurred when he was a youth, and there was a significant gap in his sexual offending, his offences twenty years later are similar in nature.” 62. Dr. Ramshaw was pessimistic in her assessment of Kebokee’s desire for change. She wrote: “During the current assessment, Mr.

Kebokee vacillated about his need for change. He stated that he would take sex offender treatment “but more for myself, not the courts.” He stated, “Obviously I have to go to drug treatment” and would attend drug treatment programs. On the Sex Offender Treatment Preference Survey, Mr. Kebokee indicated that in his view he did not need treatment targeting sexual behaviours or issues. He was ambivalent at best about abstaining from opioids. In keeping with his high psychopathy score and Mr.

Kebokee’s poor response to prior supervision and treatment, significant resources would be required to impact his future behaviour. In order to impact his willingness to change, he would need intense counselling, support, structure, and meaningful activities. 63. In conclusion, Dr. Ramshaw made a “guarded prognosis for change” to Kebokee’s pattern of offending. She made nine specific recommendations as follows: 1) Aboriginal specific programming, as recommended in the Gladue Report, would likely assist him in his healing, and in developing

more pro-social meaningful activities. 2) Anger management, and self-regulation and self-management skills: A full course of Dialectical Behavioral Therapy (DBT) could assist him to learn these skills. This would include the four core components; group therapy, individual therapy, a crisis counselor available at all times and peer supervision for therapists. While it is not clear to me that this is available to men in CSC, this treatment is the standard of care for individuals with affective dysregulation in the community.

It could also assist with substance relapse prevention. 5 3) Abstinence from illicit drugs and alcohol is highly recommended, though he remains at a high risk of using (particularly opioids). A course of motivational interviewing might increase his willingness to address his problematic substance use. I would recommend attendance in regular long-term treatment for substance abuse. Medication for opioid dependence such as methadone or suboxone is also recommended. This requires regular monitoring and a stable residence.

Random urine drug screens would assist in monitoring his substance use. 4) Sex offender treatment is recommended, starting with individual therapy, followed by group therapy as tolerated. With any further sex offending concerns, sex drive reducing medication would be recommended. 5) Relationship counselling to assist him in developing greater relationship stability and pro-social interactions. 6) Employment would assist in structuring his life.

He would likely benefit from attending vocational skills courses. 7) Increasing community supports and resources, including assisting with increased family involvement, are recommended. 8) External supervision with close monitoring, supervision and support through the parole system upon his release would assist in community stability. 9) Mr. Kebokee should not have access to unsupervised minors. 64. When Dr. Ramshaw testified, she reviewed the LSI-OR, a risk assessment tool used by correctional authorities to predict future offending and found that in 2008 and 2009, those scores were very high.

She characterized Kebokee’s reporting history as “very concerning.” It was replete with warnings about breaches of probation and actual charges therefor, frequent address changes, multiple rescheduled appointments and general attempts to manipulate the justice system. 65. When discussing treatment with Dr. Ramshaw, Kebokee told her he would accept structure, “but not too much.” He offered he would take sex drive reduction medication, but only if he had to. He did not want to take it. He did not believe he had a sexual problem. 66. In explaining her use of the PCL-R, Dr.

Ramshaw described it as a means to identify psychopathic traits. It measures “…how far an individual will go to meet [his or her] needs at the expense of others.” A high score translates to a high risk for violent recidivism. Further, those individuals with high scores, in her opinion, are harder to supervise and are less amenable to treatment. 67. Kebokee scored 31 out of 40 on the PCL-R. 81% of the inmate population score lower than he did. The general population scores typically in the 4 to 6 range out of 40. Kebokee’s highest scores were for lack of remorse and need for stimulation. 68. Dr.

Ramshaw also employed the SORAG – an actuarial tool for measuring the risk of sexual offending. Kebokee scored in the second highest category. 89% of those in that category will sexually re-offend within ten years.

69. The STATIC99 is a similar actuarial tool. Six is the highest score one can achieve. Kebokee attained it. Accordingly, he is by that measure 3.77 times more likely to sexually re-offend than the average sexual offender. 70. In

summary, Dr. Ramshaw’s use of the risk assessment tools all placed Kebokee at a high risk of re-offending. The risk, of course, would increase if Kebokee were out of custody with access to drugs and vulnerable individuals. 71. With respect to Dr. Ramshaw’s nine treatment recommendations, she made clear the distinction between making them available to Kebokee and his desire to actually avail himself of them. Kebokee has a poor history of compliance with recommendations made by anyone in authority.

His criminal record contains one conviction for failing to attend for prints, one for escaping lawful custody, two for failing to comply with an officer in charge undertaking, two for disobeying a court order, three for being unlawfully at large, three for failing to attend court, three for breaching a condition of bail, eight for driving while disqualified and eleven for breaching his probation. Even if Kebokee were to embrace all of Dr. Ramshaw’s recommendations, she would only go so far as to say, in light of his background, this could “…potentially change his response style.” 72. Dr.

Ramshaw was firmly of the view that Kebokee needed a high level of supervision and structure while accessing her treatment recommendations. This is hardly surprising. Kebokee himself did not think he could quit using drugs or stop moving around. Dr. Ramshaw could thus provide only a “guarded” prognosis at best. 73. Kebokee is quite capable of manipulation. As Dr. Ramshaw explained, he knows how to convince people. When he wants something, he knows what to say. 74. Upon a considered assessment of Dr.

Ramshaw’s findings and opinions, it is hard to conceive of a “lesser measure” than detention which would adequately manage the risks Kebokee presents. Indeed, Dr. Ramshaw concluded her testimony by clarifying that all of the nine treatment recommendations would have to be in place for there to be any prospect of reducing risk. Only then might Kebokee possibly change. 75. Kebokee’s defence counsel points out that Dr. Ramshaw did not find the offender to be paraphilic, or to display sexual predatory tendencies. More precisely, Dr. Ramshaw could not rule out a paraphilic disorder.

She did conclude Kebokee was exploitative and opportunistic. 76. The defence further argued that, upon cross-examination, all of the Crown witnesses conceded there was a reasonable expectation that lesser measures existed to adequately protect the public. I have carefully reviewed the evidentiary record, and with respect, I disagree. I shall cite several examples. Christian Schmid 77. Mr. Schmid has been a probation officer for over 20 years. He has supervised countless offenders subject to probation orders and/or conditional sentences. 78.

In giving his evidence based on his own and colleagues’ notes, he was able to identify Kebokee’s difficulties with compliance through failures to report and attempts to move about freely, not just within Ontario, but in the United States as well – particularly Florida. These themes of non-compliance recurred time and again over the period from August 2001 to June 2016. 79. At one point during a meeting with Mr. Schmid in 2011, a cell phone in Kebokee’s possession rang. Mr. Schmid asked Kebokee for the cell number. Kebokee refused to tell Mr. Schmid what it was. Kebokee claimed it was his wife’s phone.

He did not want the probation office to have her number. Instead, he suggested that the only way the probation office could reach him was by letter. 80. One probation officer after another assigned to Kebokee’s supervision over the 15 year span from 2001 to 2016 has recommended that Kebokee is not suitable for future periods of community supervision.

81. Under cross-examination, Mr. Schmid agreed that aboriginal offenders may be more “fluid” than others. Mr. Schmid maintained however that where Kebokee gave a date and time for a cultural event or religious service, he gave permission for him to attend. This included permission for Kebokee to be away from his residence while subject to a house arrest term in serving his conditional sentence. Mr. Schmid went so far as to say he could have breached Kebokee dozens of times, but did not do so, based on his ancestry. 82. However, having Kebokee report was “like pulling teeth.” The opinion Mr.

Schmid formed, similar to his colleagues, was that Kebokee was definitely not suitable for community supervision. Kebokee wanted to come and go as he pleased. 83. Nowhere in the cross-examination did Mr. Schmid concede that Kebokee would be capable of changing his attitude toward reporting and maintaining a fixed address. Indeed, Kebokee, in my view, is demonstrably a person who wishes to be untraceable. Scott Munro 84. Mr. Munro has been a correctional officer since 1983. He reviewed Kebokee’s institutional records spanning February 12, 1999 to April 24, 2017 in provincial detention centres and reformatories.

Mr. Munro’s evidence chronicled Kebokee’s long history of defiance, aggression and misconduct. 85. Under cross-examination, Mr. Munro agreed with defence counsel’s suggestion that recent overcrowding at the Ottawa- Carleton Detention Centre has heightened tension between guards and inmates, and between fellow inmates, but it does not explain the comprehensive, virtually constant misbehaviour exhibited by Kebokee while incarcerated. Lindsay Ruscitti 86. Ms. Ruscitti has been a parole officer with Correctional Services of Canada (“Correctional Services”) for over seven years.

She had personal dealings with Kebokee during the service of his one and only penitentiary sentence to date from 2012 to 2014. Kebokee served his entire sentence. He was not paroled, largely due to his poor behaviour while federally incarcerated. 87. Kebokee was involved in 28 incidents, which resulted in the generation of reports by correctional authorities. Twelve institutional charges were laid. Eight resolved in findings of guilt. Almost all of the incidents related to Kebokee’s defiance of rules and authority. 88. Kebokee was given numerous jobs and program opportunities.

He was suspended almost always for aggressive and disruptive conduct. During service of his federal sentence, he was placed in administrative segregation on one occasion as a result of ongoing defiance and lack of motivation to change his behaviours. He could no longer be managed in the ‘responsibility based’ living environment offered at Bath Institution. In an Involuntary Segregation Placement Report by Cathy Hinch dated April 15, 2014, she concluded that Kebokee’s attitude was one of continuing to do as he pleased, ignoring institutional rules and staff direction. 89. Under cross-examination, Ms.

Ruscitti confirmed that many programs which could assist in Kebokee’s rehabilitation can be offered in the community. Unfortunately, the community based programs do not offer the same level of intensity in terms of the number of hours an offender could receive counselling and treatment. The risks an offender presents while in the community are, of course, increased as well. Karen Thomson 90. Ms. Thomson has been an employee of the Parole Board of Canada (“the Board”) for 16 years. When she gave her evidence on June 7, 2016, she was an Acting Regional Manager. 91.

She reviewed during her testimony a National Parole Board Detention Review Decision Sheet. Kebokee had been sentenced

to his first federal term of imprisonment on February 23, 2012. His statutory release date (ie. a parole eligibility date) was May 24, 2013. His warrant expiry date (ie. the full completion date of his sentence) was June 21, 2014. Correctional Services recommended that Kebokee be detained until his warranty expiry. The Board acceded to the request of Correctional Services on May 24, 2013. 92. In so doing, the Board considered Kebokee’s lengthy criminal record.

The Board observed that many “. . . of [his] offences are violent in nature or have the potential for violence.” Those offences included convictions for sexual assault, assault, assault with a weapon, uttering threats and dangerous operation of a motor vehicle.

The Board aptly commented that sexual offences “. . . by their very nature involve psychological and physical harm.” The Board concluded that Kebokee’s “. . . five convictions for offences of a sexual nature against minors demonstrate [his] difficulty in controlling [his] sexual impulses involving children.” While Kebokee acknowledged he caused harm to his 15 year old victim in 2011, he did not accept that he caused her any harm sexually or emotionally. Nor did he believe in spite of his record that he was a violent person.

The Board discerned that there was an evident pattern of persistent and violent offences, and his 2011 offences were an escalation. The Board concluded that Kebokee would be a high risk for sexual recidivism. The Board identified Kebokee’s substance abuse as a contributing factor. 93. The Board took note of Kebokee’s suspension from the Moderate Intensity Sex Offender Program and the Moderate Intensity National Substance Abuse Program.

Although he finished the Violence Prevention Program, he “. . . did not take the program seriously and did not apply [himself].” The Board found that Kebokee was an untreated sex offender. He refused to participate in programs. Accordingly, he had not mitigated his risk to re-offend. 94. In light of his elevated risk and history of non-compliance, the Board held that there were no supervision programs, which could offer sufficient protection to the community, if Kebokee were released. Ultimately, Kebokee was detained until his warrant expiry. 95. Kebokee unsuccessfully appealed the Board’s decision.

The Appeal Division found that the Board’s finding were both reasonable and necessary for the protection of the public. 96. The Board reviewed Kebokee’s detention again in April 2014. It upheld its earlier decision and ordered Kebokee detained until June 21, 2014. The Board on this occasion observed that since its earlier decision of May 24, 2013, Kebokee still had not completed any treatment programs. He commenced the Aboriginal Substance Abuse Program and the Moderate Intensity Sex Offender Treatment Program, but he soon after lost interest and refused to participate.

Although he expressed a desire in seeking counselling from an Institutional Elder, he withdrew following two counselling sessions. Further, correctional intelligence indicated that Kebokee was involved in the use, sale and distribution of drugs within the penitentiary. He was also linked to threatening, assaultive and harassing behaviour towards other inmates. The Board concluded that Kebokee’s risk may well have increased since its original decision. 97. Under cross-examination, Ms. Thomson was not aware whether a Gladue Report was made available to the Board prior to rendering its decisions in 2013 and 2014.

Nor did she know if one existed. 98. She explained that it is always the Board’s hope that Correctional Services will involve the Elders early into the service of a federal sentence by an indigenous offender. Case law requires the Board to take into account Gladue factors. Correctional Services, in turn, must provide the Board with the known indigenous social history of the offender. 99. Every case is different, Ms. Thomson observed. Each panel of the Board has to decide for itself how systemic background factors will influence, if at all, its decision. 100.

Public safety is the paramount concern for the Board, Ms. Thomson explained. Roots in one’s community is an important consideration as well as support from family or friends. Support, of course, helps to mitigate risk. She agreed with defence counsel’s suggestion that it is difficult to have community roots when one has moved or been moved around a lot over the course of one’s life. 101. In terms of the psychological reports, the Board, Ms. Thomson clarified, will not rely on them if they are dated. Typically, they have a shelf life of two years.

The Board required fresh information on the offender in order to assess risk to the public, should the offender be released.

102. To Ms. Thomson awareness, there are only two community correctional centres in Ontario. The others are run privately, such as by the John Howard Society. The Board has the power to order an offender to reside at a community correctional centre. However, the Board’s authority to impose conditions must meet the test of being “reasonable and necessary.” The Board cannot require an offender to take medication. 103. If a person is designated a D.O. or a long-term offender, they can become subject to supervision, if ordered by a judge, to a maximum term of 10 years.

A residence condition can be imposed by the Board for a period of one year. That residence condition can be renewed by the Board each year to the expiry of the 10 year maximum. The conditions are subject to judicial review. No appeal lies to the Appeal Division of the Board. 104. Correctional Services employees are responsible for the supervision of offenders subject to a long-term supervision.

If the conditions are breached or the offender is changed with a criminal offence, s/he is taken into federal custody, and held – in the case of a breach – for a maximum period of 30 days to allow time for the Crown to decide whether to lay a criminal charge, or in the case of a criminal charge laid by police, until the matter is disposed of by the court. If convicted and sentenced to a period of custody, the offender will serve his sentence, and the long-term supervision will resume. 105. It must be remembered that a long-term supervision order is not a custodial sentence.

It is a vehicle for monitoring compliance with conditions imposed upon an offender. 106. Although long-term supervision of Kebokee has, at first blush, some appeal as a “lesser measure,” the paucity of evidence adduced on the level of supervision which can be offered at a community correctional centre makes it difficult, if not impossible, for me to know whether it could be a vehicle for the adequate protection of the public.

More importantly, I can be left with no reasonable expectation that Kebokee will adhere to conditions imposed by means of long-term supervision, given his abysmal record for non-compliance with court orders, as evidenced by his criminal and institutional records. Angela Hayden 107. Ms. Hayden is a parole officer who has been employed by Correctional Services of Canada for 19 years. She has spent the last 15 years at National Headquarters in Ottawa.

She testified generally, and quite expansively, about the manner in which Correctional Services prepares offenders for release back into the community, and how it assesses, monitors and manages their risk. She also gave evidence about the procedures to be followed upon breach of a condition of release. 108. The post sentence community assessment is an important tool for assisting with the offender’s rehabilitation.

Typically within 40 days of the offender’s arrival at a federal institution, his or her parole officer will begin gathering information from community contacts to derive ways to understand the offender’s needs. 109. Offenders are relied upon for development of a correctional plan. It is a “living document.” It grows and evolves as the offender progresses, or fails to, during the service of his or her sentence. Its objectives are updated and revised as required. 110. The community strategy builds upon the correctional plan and the offender’s risk assessment.

Aboriginal history is included where applicable and available. Ultimately, the community strategy informs the proposal for managing the offender’s risk in the community. It will determine how often the offender must report, and which conditions will attach to his or her release. 111. The conditions are restricted to what is reasonable and necessary to protect society and to facilitate the offender’s reintegration into society. 112. Contact with the offender in the community is essential.

Parole officers rely on it to obtain information about offenders in their homes or at their workplaces to gauge their progress against the correctional plan.

113. Of course, twenty four hours supervision by parole officers is impossible. The Intensive Supervision Protocol, the closest form of oversight which can be maintained for high risk offenders with low reintegration potential, obliges offenders to meet with their parole officers a minimum of eight times a month. It applies to a D.O. or a long-term offender. Meetings can be as short as 15 minutes. 114. Correctional Services cannot conduct unannounced home visits, rather they must be scheduled in advance. The offender can refuse them.

If so, a case conference will be held to decide whether the risk posed by the offender being in the community can be maintained. 115. Even if the offender consents to a home visit, s/he can refuse to permit the parole officer from going certain places within the home. In the event the offender refuses, a case conference would again likely ensue. 116. Urinalysis can be employed by Correctional Services to monitor abstention from drugs and alcohol. However, in order to detect the presence of alcohol, a sample must be supplied within a relatively short number of hours post-consumption.

Urinalysis cannot be used to detect drug use, nor abuse of prescription medication. Further, the offender must consent to urinalysis. 117. Testing is randomly scheduled. The offender receives two to twenty four hours’ notice. Refusal typically results in a case conference. Testing cannot occur on weekends nor during the night. 118. Residential treatment programs are available to offenders struggling with substance abuse. No such treatment programs can be offered to sexual or violent offenders. 119.

Correctional Services have psychologists under contract to assist in the rehabilitation of offenders, but the psychologist is not obligated to share information. The offender must consent to giving information. Even then, the psychologist can choose not to. In the end, the Board can order the offender to attend for psychiatric or psychological treatment, but cannot require the offender to allow for sharing of information. 120.

Correctional Services can direct offenders to take medication (eg. to reduce sex drive or to treat opioid dependence), but the offender must consent in order for Correctional Services to obtain confirmation that the drugs are being regularly prescribed. Little to no means exist to determine whether drugs are being taken as prescribed. 121. Community programming exists for sexual offenders. It begins with an initial twelve sessions. Six more can be recommended. Residential programs can be made available to the indigenous. 122. Ms. Hayden testified that there are two different types of halfway houses.

Community correctional centres are federally operated. Community based residential facilities are privately owned. 123. The community correctional centres offer 24 hour supervision and a structured living environment. They house offenders on day parole, full parole, statutory release or those subject to long-term supervision. They can have on staff correctional officers, parole officers and parole supervisors during the day. At night, they are manned by Commissionaires. A national duty parole officer can be contacted by phone after hours for the issuance of warrants of apprehension and suspension.

There are only three community correctional centres in Ontario located in Kingston, Toronto and Hamilton. 124. This community based residential facilities can refuse admission to certain offenders (eg. high risk sexual offenders). They hire their own staff. Parole officers do not work there, nor correctional officers. They can, of course, call the national duty parole officer, if need be. 125. Nothing stops an offender, in reality, from walking away from either type of facility, should they choose to. The offenders are by no means under lock and key at these halfway houses.

126. Electronic monitoring can be used on an offender. However, the offender must consent. It is not capable of monitoring, of course, who the offender is with at any given point, nor can it oversee what the offender is doing. 127. Ms. Hayden testified about the procedures to be followed when an offender breaches a condition of his or her release. Correctional Services can issue a warrant of apprehension and suspension in the event of a breach. The offender is then returned to his or her federal institution where they had been serving their sentence. 128.

The test for issuance of the warrant is when the offender’s risk can no longer be managed in the community. The parole officer and parole supervisor hold a case conference. The options to be considered are:

a) suspension of release,

b) additional treatment/programming,

c) additional control measures (increased reporting, increased urinalysis, curfews etc.),

d) a disciplinary interview,

e) amendments to special conditions, and

f) suitable cultural alternatives or interventions. 129. Correctional Services can cancel the warrant unless:

a) the case is referred to the Board for a decision, or

b) the offender is automatically suspended for receiving an additional sentence. The exception to

b) above is if the offender receives a non-custodial conditional or intermittent sentence. If the offender is automatically suspended, the matter is referred along to the Board. 130. When the offender is apprehended and back in custody, a parole officer conducts a post-suspension interview. A further case conference is held thereafter, and three options are then considered:

a) cancel the suspension, release the offender and notify the Board;

b) make a recommendation to the Board to cancel the suspension and to impose additional conditions; or

c) revoke the offender’s release. 131. Option

a) would be employed to maintain the offender in the community, for example, by amending the release plan to reduce the risk s/he poses to the community. 132. Options

b) and

c) involve Correctional Services making a recommendation to the Board within 30 days. If the 30 days lapse, Correctional Services loses jurisdiction and the offender must be released back into the community on the existing terms. Where Correctional Services refers the matter to the Board, the Board has 90 days from the time the offender was returned to custody to make a decision. If not, jurisdiction is lost and the offender is released. 133. Option

b) can be used, for example, where an offender relapses into substance abuse, and the Board believes his or her risk can still be managed with adding a condition to require him or her to attend a substance abuse program. 134. Option

c) is invoked where Correctional Services and the Board conclude the offender’s risk can no longer be managed in the community.

135. All offenders subject to long-term supervision are supervised by Correctional Services. The order can be in effect for a maximum of 10 years upon the offender’s unconditional release. The offenders as well are eligible for all forms of conditional release, if they are not held to their warrant expiry. The special conditions which attach to the offender released prior to warrant expiry are set by the Board. They must meet the reasonable and necessary criterion. They can include a residency condition. However, long-term supervision is not intended to be a form of community detention. 136.

A condition of an offender’s release can compel him or her to reside in a community correctional centre or a community based residential facility, if reasonable and necessary for risk management, prevention of a return to criminal activity and/or reintegration into society. Residency conditions are limited to 365 days. Correctional Services must refer the matter to the Board for a renewal of the residency condition. 137.

If an offender breaches a condition of long-term supervision, the assigned parole officer interviews the offender; gauges his or her motivation to rectify the situation and decides whether the means exist to maintain the offender’s risk at an acceptable level in the community. Societal protection is the highest consideration. If the risk is deemed unmanageable, the suspension procedures take effect. 138. Just like conditional or statutory release suspensions, the procedures are commenced when an alleged breach occurs, a breach is anticipated and must be prevented, or the protection of society must be maintained.

Long-term supervision breaches are addressed in s.753.3 of the Code. The parole officer, upon the Board’s recommendation, will seek to have police lay a charge where an alleged breach occurs. If a breach is anticipated, or suspension is deemed necessary for society’s protection, the offender is recommitted to custody for a period not to exceed 90 days. No criminal charge can be laid. The Board then must render a decision to send the offender back into custody, or release the offender. Correctional Services must act within 30 days once the offender is recommitted to custody or lose jurisdiction.

The Board has 60 days to decide. These time limits cannot be extended. 139. Correctional Services has essentially four options in making a referral to the Board upon apprehension of the offender:

a) cancel the suspension;

b) cancel the suspension with alterations to the offender’s conditions of release;

c) cancel the suspension at a point no greater than 90 days into the future, if the offender’s risk can be mitigated through participation in a program; or

d) refer the matter to the Attorney General or the police to lay a charge under s.753.3 of the Code. 140. Police can charge the offender for a breach under s.753.3 of their own accord. The offender is then entitled to a bail hearing. The offender is either released on bail or detained in a provincial facility until the charge is dealt with. 141. If the offender is convicted, long-term supervision is interrupted until completion of the sentence and then resumes upon release. The sentence will however be served in a federal institution even if the sentence is less than two years.

The same applies to any other type of custodial sentence an offender receives. 142. D.O.’s subject to an indeterminate sentence are not eligible for full parole until seven years from the date of arrest. They are entitled to a review every two years thereafter, if not paroled. Day parole and unescorted temporary absence passes are available three years prior to full parole eligibility. There is, of course, no right to statutory release for a D.O. serving an indeterminate sentence. 143. Correctional Services have the same power to suspend a D.O.’s release on conditions as it does with other offenders:

a) for an alleged breach of a condition;

b) for the prevention of a breach; and

c) for the protection of society.

144. Equally, Correctional Services has 30 days to make a recommendation to the Board or to cancel the suspension. The Board has 60 days within which to make the decision following a referral. However, a D.O., subject to an indeterminate sentence, who is recommitted to custody for a breach, must serve one year in custody before becoming eligible for conditional release again. 145.

An offender who receives a reformatory sentence (ie. one of 2 years or less), if subject to long-term supervision, serves two- thirds of their sentence typically and then becomes subject to the conditions of the long-term supervision order. Correctional services is responsible for the supervision. Correctional Services finds itself challenged whenever the custodial component of the reformatory sentence is not sufficiently long to enable a recommendation to the Board regarding the conditions which should attach to the offender’s release. 146. Under cross-examination, Ms.

Hayden elaborated on this conundrum for Correctional Services when a short-term provincial sentence is imposed followed by long-term supervision. A judge, of course, may wish to offer guidance and craft the conditions to which the offender will be subject. However, it is far preferable to have the conditions recommended by Correctional Services to the Board and to have the Board decide upon them. Otherwise, public safety may be compromised while Correctional Services hastily attempts to deal with the situation. 147.

In deciding on the risk posed by an offender’s release into the community, Correctional Services conducts a quantitative and qualitative analysis. For example, an offender who has amassed eighty convictions for property offences will not be regarded in the same way as one who has eight convictions for violent offences. 148. Ms. Hayden reaffirmed that the reasonable and necessary test is the barometer for tailoring appropriate conditions by the Board. It applies to electronic monitoring and residence terms. They can be re-imposed, but each are subject to limitations. 149. In respect of staffing at halfway houses.

Ms. Hayden confirmed the 24/7 availability via a 1-800 number of the national supervisory parole officer, should the need for a warrant of apprehension and suspension arise. 150. Without much hesitation, Ms. Hayden conceded that an offender would be very ill-advised to refuse any form of consent, given the consequences that would flow from a case conference. The suspension of one’s conditional release is not a prospect any offender would relish.

Equally, the notion of breaching a condition does hang like Damocles sword over the heads of offenders on any form of conditional release where a 90 day re-committal to custody may ensue, before a final decision is taken by the Board on whether their liberty can be regained. 151. On the notion of the offer of one-on-one counselling to an offender, Ms. Hayden was doubtful. Ms. Hayden felt the cost would be exorbitant. Most offenders simply would lack the ability to pay for it on their own. Correctional Services typically offers group counselling for cost reasons. 152.

Regarding “lesser measures”, I find that the evidence of Ms. Hayden does not satisfy me that any exist for Kebokee, either looking at her testimony in isolation, or as supplementing the other evidence adduced at this D.O. hearing. The consideration to which I must turn my mind is what, if anything, can be put into place to adequately protect the public. Kebokee of late, for lack of a better way to phrase it, has shown a keen interest in girls in their early teens.

Halfway houses, electronic monitoring, residency conditions, prescription medication, abstention from opioids and other drugs and alcohol only go so far to mitigate the risk that Kebokee may contact and cultivate connections with this very vulnerable sector of society (teenage girls) again upon release into the community. 153. Halfway houses lock the public out – not the offender in. Electronic monitoring can create ‘no go’ zones and oversee curfew compliance – not watch what the offender is doing with whom.

Residence conditions can require offenders to live in structured environments for portions of their day – not their entire day. Medications can be prescribed – not compelled to be taken as prescribed. Offenders can be ordered to abstain from alcohol and drugs, but the ability of parole officers, correctional staff or police to detect their use is woefully limited through urinalysis or other means of monitoring. Typically, an offender would have to reach a visible state of intoxication before exhibiting physical signs of use to his or her supervisors.

Sadly, there are no residential treatment programs made available by Correctional Services to sex offenders in the community. There was no evidence adduced on what level of treatment could be made available to the indigenous offender, just mere mention of availability. 154. Kebokee is 3.77 times more likely to sexually re-offend than the average sexual offender. Currently, he is only 40 years old.

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