Her Majesty the Queen - v. -, 2018 SKPC 60

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 060 Date: November 9, 2018 Information: 44665768 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marc Potter Appearing: B. Pashovitz For the Crown M. Nolin For the Accused JUDGMENT M.L. GRAY , J History of the Proceedings [ 1 ] Mr.

Potter was charged that between February 1, 2014 and November 17, 2014, he committed a sexual assault on N.D., a person under the age of 16 years, contrary to s. 271of the Criminal Code and that he did expose his genitals to N.D., a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code. On July 30, 2015, Mr. Potter entered guilty pleas to both counts.

[ 2 ] With respect to count one, the sexual assault, consent of the Attorney General was obtained to commence proceedings to have Mr. Potter declared a dangerous offender (Exhibit P-1) and notice of an application for an assessment pursuant to s. 752.1 of the Code was given (Exhibit P-2). The remaining count, pursuant to s. 173(2) carries a maximum penalty of two years incarceration and is not captured in

Part XXIV of the Criminal Code . [ 3 ] Dr. Tomita was appointed by the Court on September 29, 2015 to conduct the assessment. The matter was adjourned from time to time at the request of the defence until Mr. Potter dismissed his Legal Aid lawyer on December 28, 2016. [ 4 ] Counsel for Mr. Potter was appointed by the Court on January 16, 2017, in spite of the fact that Legal Aid was not refusing to act. It was important to the Court that Mr. Potter have legal representation given the nature of the application, its potential consequences, and the delay that had been occasioned in coming to the hearing. Mr.

Nolin accepted the appointment and made an application to have Dr. Tomita disqualified; that application was dismissed with oral reasons on November 8, 2017. Subsequently, evidence on the

Part XXIV hearing was called over a number of days commencing November 21, 2017. The matter was further adjourned in order to permit Dr. Lohrasbe, who was retained by defence, to assess Mr. Potter. On March 29, 2018, evidence from Dr. Lohrasbe and Mr. Potter was heard and the matter adjourned to June 18, 2018 for argument. Positions of the Parties [ 5 ] The Crown seeks to have Mr. Potter declared a dangerous offender (DO) and ordered to serve an indeterminate sentence as the offending behaviour of Mr.

Potter is, they submit, intractable and any sentence other than a DO designation with an indeterminate sentence would fail to adequately protect the public. [ 6 ] Defence counsel submits, on his client’s instruction, that Mr. Potter should receive a determinate sentence commensurate with the offence but candidly admits that a more realistic submission would be for the Court to make the DO designation and impose a determinate sentence of six to seven years with a 10-year Long Term Supervision Order (LTSO). Circumstances of the Offences [ 7 ] The circumstances of the offences, which Mr.

Potter has admitted, are contained in an Agreed Statement of Facts filed as Exhibit P-3. Briefly stated, Mr. Potter was living in the community in 2014 when concerns developed about his contact with N.D., a nine-year-old boy. As a result, N.D. was interviewed in December 2014. He revealed that he met Mr. Potter at the public library in February or March of 2014 and they played computer games together. Sometimes his mother, J.D., was present; sometimes not. During the summer of 2014, N.D. would ride his bike to the university to meet Mr. Potter who would buy him snacks. [ 8 ] N.D. described Mr.

Potter masturbating in front of him some 10 or 11 times and teaching him how to masturbate. He asked to touch N.D’s genitals “lots of times” and did so once. N.D. described Mr. Potter attempting, for about one minute, to masturbate N.D. Mr. Potter asked to take photographs of N.D.’s genitals, which the child refused; N.D. said that he heard the click of a camera once when they were in the bathroom. Mr. Potter showed him pictures of naked children and adults of both genders. N.D. further disclosed that Mr. Potter twice touched his “bum” over his clothes. [ 9 ] N.D. never disclosed this activity because Mr.

Potter told him to keep it a secret and that he would be in trouble with his mother if he told. N.D. stopped seeing Mr. Potter at the end of November 2014, saying as this was the only way he could think of to end the sexual acts. [ 10 ] Mr. Potter provided a warned statement in which he admitted sexual contact with N.D., both at the library and the university. The assaults began with touching N.D. over his clothing and, later, under his clothing. Mr. Potter said, “(

I) didn’t want any intercourse because of his size. I told him if I entered him anally, that I would hurt him badly.” He put his hands down the boy’s pants, stroked his penis and taught him how to masturbate. He admitted that this was a weekly event for two months at which time N.D. became resistant. He said it pleased him to see N.D. getting pleasure.

[ 11 ] Mr. Potter admitted pressuring N.D. to take off his clothes at a park where he took pictures of the naked boy, and also had N.D. touch himself. He masturbated at the park on that occasion while watching the boy; he subsequently masturbated to the six photographs that he had taken. [ 12 ] He knew N.D.’s age and, while he acknowledged that his actions were illegal, Mr. Potter did not see them as harmful. He offended against N.D. because of the opportunity and his “uncontrollable urges.” Personal and Criminal History [ 13 ] Unless otherwise noted, the following circumstances are derived from Mr. Potter’s criminal record (Exhibit P-4) and the

summary of his criminal history (Exhibit P-5). Mr. Potter is now 40 years old, and was described by Dr. Lohrasbe as a “youthful looking man of slight build” (Exhibit D-2 p 3). When he was 2½ years old, he and his sister were removed from their birth mother because of profound neglect and abuse and were adopted by the Potter family. A Pre-Sentence Report (PSR) dated July 11, 2005 suggests that their birth mother drank heavily during both pregnancies and both children were affected. Although a formal diagnosis of Foetal Alcohol Spectrum Disorder (FASD) has never been made, Dr. Lohrasbe testified that, given Mr.

Potter’s cognitive and behavioural features, it is reasonable to conclude that he does have the syndrome. Mr. Potter is considered to be of average intelligence; however, he does have some neurological deficits. He also has significant hearing loss and requires hearing aids. [ 14 ] Mr. Potter was removed from the home of his adoptive family in June 1992 and placed into foster care as a result of his sexual offending against young children in the neighbourhood. Reports indicate that his offending began when he was about 12 and that there were numerous young victims, but no criminal charges were sworn.

Given his persistent behaviour, his parents were unable to cope and, as a result, he was placed in a group home. There, he was charged with sexual assault after touching the genitals of three other residents, two 15-year-old females and one 13-year-old male. [ 15 ] On July 19, 1993, Mr. Potter was convicted of three counts of sexual assault and sentenced to 15 months secure custody in Ontario. Following this period of custody, he said that he had the choice of a group home treatment program either in Toronto or Calgary.

He chose the Phoenix Sex Offender Treatment Program (Phoenix Program) in Calgary because it was two years in length, as opposed to the five-year program offered in Toronto. While in that treatment program, he had a full sexual relationship with a 14-year- old boy in spite of staff discouragement; Mr. Potter was 17 at the time. He was discharged from the Phoenix Program on June 1, 1997 and lived independently in Calgary. [ 16 ] Although Mr.

Potter was supervised in the community, saw a psychiatrist (albeit somewhat sporadically) and was prescribed anti-androgen medication, the time in Calgary was not without difficulty. He was unable to maintain his residence or his personal hygiene. Some of the people with whom he chose to associate were questionable. On September 16, 1998, he was charged with criminal harassment after offering money to a young boy in a park for posing nude for photographs. Mr. Potter had been seen frequently at the park taking pictures of boys on their bikes.

Nine days later, he was apprehended after threatening an officer with a B.B. gun. On January 7, 1999 he was given a global two-year suspended sentence and placed on probation with a number of conditions. [ 17 ] One week later, Mr. Potter was found with several pornographic magazines in violation of his probation order. He entered a guilty plea on February 26, 1999; passing of sentence was again suspended. [ 18 ] Less than 24 hours after being released in relation to the above breach, Mr. Potter went to the public library, again violating his probation order.

On March 19, 1999, he was sentenced to seven days in jail followed by two years of probation. [ 19 ] On July 26, 1999, Mr. Potter entered a guilty plea to one count of breaching his probation order by failing to attend treatment/counselling as directed on June 10, 1999. He was sentenced to one day in custody. [ 20 ] He was next charged with violating that probation order between May 12, 2000 and May 31, 2000, by attending public parks or service areas where children under the age of 14 might be present. He was sentenced to two years less one day. While in custody, he

was transferred to the Phoenix Program where he was noted to be “very immature, attention seeking and, at times, flirtatious with the other patients. It was noted that he attempted immature manipulations of the group and it became more apparent over time that he was unsuitable for treatment as his motivation was significantly in question. Mr. Potter was terminated prematurely from the program and discharged. An assessment of poor prognosis was made” (see Exhibit C-1 para 77). [ 21 ] Upon his release from custody, Mr.

Potter entered into a recognizance pursuant to s. 810.1 of the Criminal Code on November 28, 2001. [ 22 ] On May 2, 2002, he was charged for purchasing a Swiss Army knife in breach of the

section 810.1 recognizance. He admitted that allegation and received 30 days of incarceration followed by two years of probation. [ 23 ] On November 15, 2002, a search was conducted of Mr. Potter’s apartment and a collage consisting of pictures of children, clothed and unclothed, was found. Mr. Potter admitted constructing it to fantasize for sexual purposes. A sentence of two years was imposed on November 29, 2002 to facilitate Mr. Potter’s request that he receive treatment in a federal institution. While in prison, on August 20, 2004, Mr.

Potter was charged with common assault on another inmate; he received 14 days concurrent. [ 24 ] He was initially placed at Grand Cache Institution, then transferred to the Regional Psychiatric Centre (RPC) in Saskatoon. While at the RPC, Mr. Potter was assessed as posing a moderate risk for institutional misbehaviour and, indeed, incurred eight institutional charges while there. After psychological testing, he was assessed as a high risk for sexual and violent offending (Exhibit P-5 p 3). He attended sex offender programming until his release date; in spite of that, treatment providers concluded that Mr.

Potter had developed a limited knowledge base through the program but had difficulty putting that knowledge into practice. Ultimately, the Parole Board of Canada (PBC) denied Mr. Potter parole and ordered his detention, saying that he had not made significant gains during his second time in the high-intensity sex offender program (Exhibit P-5 p 4). He was released November 28, 2004 at warrant expiry and entered into a recognizance pursuant to s. 810.1 of the Criminal Code . [ 25 ] On April 15, 2005, Mr.

Potter was arrested for breaching this recognizance by riding his bicycle past a school ground; he entered a guilty plea. After the preparation of a number of reports, on October 17, 2006, the passing of sentence was suspended for three years. While supervised in the community, the probation officer had grave concerns about Mr. Potter’s use of marijuana, his inattention to his own hygiene, and the manner that he responded to sexually risky situations. Mr. Riendeau expressed concern that Mr.

Potter could recite things that he had learned in treatment but had difficulty applying them. [ 26 ] There were no further entries on Mr. Potter’s criminal record until the predicate offence. He has remained on remand since his arrest in January 2015. The Provincial Corrections Binder (Exhibit P-12) indicates that Mr. Potter continues to have difficulty comporting himself in a socially appropriate manner, frequently raises the ire of other inmates through his behaviour and often finds himself in conflict with the corrections officers.

Case for the Crown [ 27 ] The Crown filed some 17 exhibits, including five voluminous binders of materials containing documents from courts, probation services and Correction Services Canada (CSC) that I have reviewed and considered. In addition, viva voce evidence was given by the following individuals. Craig Podgursky [ 28 ] Craig Podgursky testified that he has been a community parole officer since 2008 and in that role supervises offenders who have been released on parole from federal sentences.

Prior to the release of an inmate, community parole officers work in conjunction with institutional parole officers to create a release plan; the PBC then imposes conditions of the release. Once the offender is in the community, the parole officer determines the frequency of reporting and maintains contact with other community resources. The mandate of a parole officer is to ensure public safety by working with the inmate while respecting their right to be in the community.

[ 29 ] The parole officer is given discretion as to whether or not to suspend parole and one major factor is the degree of risk posed. For example, if the risk is low, it is less likely that parole will be suspended. There is less discretion where the offender has been placed on a LTSO; in the event of a breach of that order, the Crown holds the discretion to lay charges or not. [ 30 ] Sexual offenders can be released conditionally.

In the case of child sex offenders, a community parole officer might use electronic monitoring to ensure that the offender stays away from areas frequented by children; this, however gives no indication of what the offender is doing. Such a parolee can also be monitored by referral to outside agencies such as the Circle of Support and Accountability (COSA). In addition, conditions can be individualized to the needs of a particular offender on a case-to-case basis.

Counselling is also available as CSC has a psychologist on staff and maintenance programs are available in the community. [ 31 ] There is no CSC involvement with respect to those offenders who are held to warrant expiry except for the preparation of a “warrant expiry package” that is forwarded to the police department in the community to which the offender is being released. The police then determine whether to apply for a s. 810.1 recognizance; the High Risk Supervision Unit that once supervised those bound by a recognizance pursuant to ss. 810.1 or 810.2 has been disbanded in Saskatoon. Mr.

Podgursky opined that sex offenders can be difficult to supervise in the community because they have been ostracized by their families and the community, although this is true of all offenders to some degree. Marc Riendeau [ 32 ] Mr. Riendeau testified that he and Jerry Turta, who were considered the probation office sex offender specialists, supervised Mr. Potter while he was on probation in Saskatoon. Mr. Riendeau was able to refer to a Pre-Sentence Report (PSR) update that he authored in April 2006 as well as various case file notes; some were written by himself and some by Mr. Turta. He confirmed that Mr.

Potter was considered to be at a high risk to re-offend; his increased use of marijuana (six-seven joints per day) in 2008 was considered to not only be a breach of his conditions but also increased his likelihood of offending. Mr. Potter expressed concern that being on probation placed restrictions on him that prevented him from “getting on with his life.” [ 33 ] Although Mr. Potter was able to repeat information from group treatment and from what he was taught, Mr. Riendeau doubted that Mr. Potter had actually internalized the information since he repeatedly placed himself in risky situations. The fact that Mr.

Potter spoke to Mr. Turta, after the probation order had expired, about an incident that put him at risk was a positive thing. Veronica Sinclair ( nee Favel ) [ 34 ] Ms. Sinclair was a community parole officer in 2003. On request from the institutional parole officer at Grand Cache Institution, she wrote a community strategy report for Mr. Potter who wanted to be released to Saskatoon.

She recommended that he be transferred to the RPC which offered a sex offender treatment program for those considered low-functioning as she could not recommend his release as an untreated sex offender to a community where he had no supports and where no supervised residence, such as a half-way house, would accept him. Stephanie Boileau [ 35 ] Ms. Boileau has been employed with CSC since 1999 and is presently working at the RPC. In terms of the process of placing offenders, Ms.

Boileau testified that, after being sentenced to a federal term of incarceration, an offender is placed at a “home” institution which then determines whether or not to refer the individual to the RPC. Some acutely ill inmates may spend only a short time at the RPC; some may serve their entire sentence there. [ 36 ] The majority of Ms. Boileau’s testimony centred on the treatment programming now available in federal institutions.

Under the old regime, inmates would take programs sequentially; in her view, the new model, called the Integrated Correctional Programming Model (ICPM) combines the best of the old programs and presents it as a whole. It has abbreviated the time to intake and the time to completion. Ms. Boileau opined, however, that the effectiveness of the new model is on par with the old.

[ 37 ] Within the ICPM are three streams: multi target, Aboriginal and sex offender. The sex offender stream has two components: high intensity programming and moderate intensity programming. The high intensity program consists of a group “primer” program with 10 offenders and one facilitator. The main portion is done with 12 offenders and two facilitators and consists of 108 sessions, each a minimum of two hours long. There are scheduled-one-to one sessions as well as the creation of a relapse prevention plan. The moderate intensity program consists of 62 sessions.

Those who offend sexually against children attend the same programming but the focus is on different risk factors such as inappropriate sexual fantasies involving children. [ 38 ] If an offender completes either program, it is not repeated; rather, the offender is referred to a 12 session maintenance program which can be repeated as often as necessary. Both the high and moderate intensity programs offer an Aboriginal component that includes elders and spiritual teachings.

Community programming includes the ability to take maintenance programming that can be accessed as frequently as the offender wishes. [ 39 ] At the conclusion of the programming offenders are rated either as “successful completion” or “attended all sessions” or “suspended.” Participation in programming must be consented to and motivation is provided by the payment of up to $6.90 per day to those who attend. Rhonda Oddy [ 40 ] Ms. Oddy was Mr. Potter’s institutional parole officer at Grand Cache Institution.

Although she does not remember all inmates with whom she deals, she does have an independent recollection of Mr. Potter, specifically his lack of hygiene and excessive masturbation. She considered him to be preoccupied with sex and was aware that his sexual fantasies were in relation to children. He disclosed information about other offences that he had committed that did not appear on his criminal record and she had concerns about his risk level. In particular, in one interview, he told her that he would re-offend if he was released. He was transferred from Grand Cache to Saskatchewan. James Gonzo [ 41 ] Mr.

Gonzo is employed with CSC and provided information to the court respecting parole for individuals sentenced to determinate sentences, dangerous offenders with a determinate sentence and an LTSO, and dangerous offenders with an indeterminate sentence. All are eligible for full parole. Dangerous offenders with determinate sentences are also eligible for statutory release unless there are reasons to detain to warrant expiry.

The inquiry into whether an offender should be detained to warrant expiry begins about 11 months before the calculated statutory release date. [ 42 ] Dangerous offenders with an indeterminate sentence are eligible for parole seven years after the date of the offence. A dangerous offender would start a sentence in maximum security and progress from there to medium and then to a minimum security rating.

The objective is to have inmates complete programming as quickly as possible as completion impacts their security rating. [ 43 ] Dangerous offenders are treated like any other inmate when it comes to parole; they must demonstrate that their risk can be managed in the community. In cross-examination, Mr. Gonzo confirmed that an offender can be held to warrant expiry even on non- violent offences (such as breach of probation in Mr. Potter’s case) if there are concerns that they will offend in a violent way. Court-Appointed Psychiatrist [ 44 ] Dr.

Todd Tomita was qualified as an expert in forensic psychiatry to give opinion evidence in the area of assessment and treatment of violent and sexual offenders, including the assessment of risk to commit violent and sexual offences. In preparing his report, he interviewed Mr. Potter over two days for a total of 5.25 hours, spoke to Helmut Isaac, a volunteer who worked with Mr. Potter between 2004 and 2015, and also spoke to Edith Nelson, who was Mr. Potter’s community psychiatric nurse and had contact with him between 2004 and 2012 and between 2013-2014.

In addition, the doctor reviewed the Offence Binder (Exhibit P-8), the Correctional Services of Canada Binder (Exhibit P-9), the Provincial Correctional Material Binder (Exhibit P-11), and the Saskatchewan Probations Binder (Exhibit P-10). Dr. Tomita provided assistance to the court through both his testimony and his written report (Exhibit C-3). At para. 165 of his report, Dr. Tomita wrote:

Even more concerning is the fact that Mr. Potter failed to avoid sexual reoffending ( sic ) even though he was disclosing contact with N.D. in sex offender treatment leading up to the offending and he would have known that detection and legal sanctions were probably inevitable. The fact that he was engaging in voluntary treatment, disclosing his contacts with the victim of the index offence, moving towards reoffending ( sic ), and was unable to stop himself from doing so despite foreseeing the outcome suggests an inability to self- manage his risk even with community treatment and volunteer supports in place.

This suggests that his paedophilic disorder is at a severe level. It is difficult to envision a better or more optimal context in which Mr. Potter might have avoided reoffending ( sic ) than the one he was in in 2014. He had stable income through a disability pension and stable housing. In this period of relative stability, he proceeded to sexually reoffend ( sic ). [ 45 ] Dr. Tomita testified that although Mr. Potter reported his contact with N.D. to Ms. Nelson, he stopped seeing her after she advised him to cease contact with the young boy. Similarly, although Mr.

Potter had a good relationship with his probation officer, he accessed child pornography for six months before revealing that fact to Mr. Turta. The doctor considered it positive that Mr. Potter reached out to Mr. Turta even after the probation order had expired, but qualified that by saying that there is no information about what Mr. Potter did afterward. [ 46 ] Dr. Tomita characterized Mr. Potter as an “opportunity maker,” not just an “opportunity taker;” that is, he puts himself in situations where he has contact with young boys.

As a result, one must rely on his intrinsic motivation to avoid re-offending which in turn requires that Mr. Potter be completely open and honest with treatment providers. Mr. Potter’s ability to maintain this intrinsic motivation is key to managing his risk in the community (see Exhibit C-1 para 151). [ 47 ] Dr. Tomita also addressed the effects of aging on recidivism, and reported at para. 167 of his assessment that “extra familial child molesters show little decline in their recidivism risk until after the age of 50.” He went on at para. 170 to say, Although self-control can improve with aging, Mr.

Potter has problems related to a personality disorder and Foetal Alcohol Spectrum Disorder, which make it more difficult to control maladaptive ways of thinking and behaving, particularly in social interactions and in regards to his paedophilic fantasies, urges, and behaviours. He reiterated this view in cross-examination and went on to add that Mr. Potter did not have a full understanding of what he needs to do, which includes taking medications to modify his sex drive. It was concerning that even though Mr. Potter was facing such serious sanctions, he was still unable to consider pharmaceutical treatment. Dr.

Tomita found Mr. Potter rigid in his thinking and choices, particularly in his view that the medications were unpleasant and unhelpful. Dr. Tomita opined that Mr. Potter might well attempt a course of the medication but thought it unlikely that he would stay on it. [ 48 ] It was Dr. Tomita’s opinion that a number of supervisory people would be required to keep Mr. Potter on a path of non- offending in the community, partly because he functions at a level much younger than his stated age and partly because of a personality disorder. He agreed that the intractability of Mr.

Potter’s offending is related to his cognitive challenges. The doctor predicted that Mr. Potter would require indefinite supervision (see Exhibit C-1 para 174). The Defence Case [ 49 ] Mr. Potter testified that upon his release in relation to the charges before the Court, his hope would be to reside in Toronto as there are more programs, more resources and more distractions there that would reduce his risk to offend. He says that he is now interested in a high intensity treatment program and has been convinced by Dr. Lohrasbe that anti-androgen medication would help him manage his risk.

He is now ready to comply with a regimen of medication. [ 50 ] Although he has had difficulty living independently in the past, Mr. Potter believes that he now would be able to “maintain a clean place and keep food and make a priority of paying rent.” He would not be opposed to living in a group home.

When asked what he would do differently if he was in the community, he said that he would be willing to do intensive programming, take medication, accept permanent supervision and abide by all conditions imposed upon him. [ 51 ] In cross-examination, he admitted discontinuing anti-androgen medication in 2000 because he did not like the side effects,

which included a lack of arousal that he found uncomfortable. He agreed that he told both Dr. Tomita and Dr. Lohrasbe that he would not take that medication, but has changed his mind since Dr. Lohrasbe’s testimony has helped him understand the effect the medication has on his behaviour. [ 52 ] When asked if he saw his actions as harmful to N.D., Mr.

Potter replied that it would always be illegal, but “harmful--depends how you look at it- psychological effects can be harmful–no physical injury.” He added, “contact with N.D. was pleasurable mostly for N.D.” He knew that his relationship with the boy would lead to sexual offending, but he thought telling his community psychiatric nurse that he “was interacting with a young boy” should have been enough to have her help him to stay away from N.D. Mr.

Potter gave other examples of the inadequacy of community programs but acknowledged that he was reticent to accept assistance from volunteers who would give emotional support and provide recreational opportunities because he was held back by feelings of ostracization and rejection. He admitted re-offending while he was involved in such a program. [ 53 ] When asked why he should be believed about his willingness to now comply with conditions, Mr.

Potter said that he has “spent a lot of time thinking about his track record,” “(there has been) more time between his offences and fewer victims,”and “more treatment would enhance programs that I’ve already taken.” Dr.

Lohrasbe’s testimony has taught him that “my stubbornness is a big hindrance” and although it will be difficult for him to reduce that trait, he is “encouraged that there are counsellors and psychiatrists who can work with it.” He admitted that he would have to co-operate with treatment providers and said that he is motivated to do so “to get my fantasies and urges under control.” He agreed that he would require someone constantly monitoring him in the community but said that it did not necessarily have to be a probation officer or a counsellor. [ 54 ] Further, the defence led viva voce evidence from Dr.

Shabehram Lohrasbe who also was qualified to express opinion evidence in the area of forensic psychiatry. His curriculum vitae and assessment report of Mr. Potter were filed as defence exhibits (D-1 and D-2 respectively). [ 55 ] Dr. Lohrasbe interviewed Mr. Potter for some 3.5 hours and reviewed the Offence Binder (Exhibit P-8), the CSC Binder (Exhibit P-9), the Provincial Corrections Binder (Exhibit P-11), the Probations Binder (Exhibit P-10) as well as the Agreed Statement of Facts (Exhibit P-3). At p.13, Dr.

Lohrasbe opined: Sexual deviancy, cognitive defects, and personality dysfunction with resultant loneliness and increased stress, all of which contributed to loss of self-control, are likely to continue into the foreseeable future. The challenge then is to transform Mr. Potter’s past ambivalence into a firm and sustained commitment to complete disclosure at all times. In that regard, a major concern is Mr. Potter’s expressed loss of trust in the system, mentioned above. For Mr. Potter, his disclosures “ should have ” resulted in sympathy and a focus on his rehabilitation.

A sense of entitlement feeds what is a magnitude gap between his perspective on what “ should ” happen and the realities of our Justice System as well as the resources available to any single offender. If maintained, his mistrust and hostility could remain...an indefinite impediment to risk management. It was my impression that his self-centeredness and cognitive rigidity makes it very difficult for him to grasp the gravity of his offences, as seen by ‘the system’. [ 56 ] Dr.

Lohrasbe opined that sex offender treatment programs are “modestly successful” and it is not known how to differentiate between those for whom treatment is successful and those for whom it is not. Mr. Potter, for example, had two complete rounds of treatment and one partial, yet re-offended. Dr. Lohrasbe expressed the view that treatment raises awareness and teaches skills but does not remove the core problem as there is “no cure for powerful sexual deviancy.” Mr. Potter admitted to him that his urges are very powerful.

Science has not answered the question of whether pedophilia is entirely genetic, but can say that neurological damage does play a role. [ 57 ] It was also noted that Mr. Potter demonstrated a rigidity in his thought process which Dr. Lohrasbe explained takes the form of “I know what’s best; I know what should be done for me” and this feeds a sense of entitlement that, in turn, leads to a disgruntlement with the system. As a result, Mr. Potter imagines life in the community should involve more than has been made available to him and likely, more than is actually available. This inflexibility also relates to Mr.

Potter’s attitude to medication. In speaking to the doctor, Mr. Potter dismissed the option, saying that the problem is “in his head” and in his social situation and that drugs will not alter that. The actual purpose of the anti-androgen drugs are to diminish sex drive and, concurrently, deviant fantasies. Unfortunately, they do have some negative side-effects which include bone demineralization, breast enlargement and liver problems.

Continuous medical monitoring is required for patients on this drug. [ 58 ] The doctor agreed that high risk cannot be equated to unmanageable risk and, in his experience, such risk can be managed when an individual is completely devoted to that purpose. For example, a person who has an aversion to prison life, and who commits to

not returning, can be managed in spite of being considered a high risk. In a community setting, the issue is separating the accused from those who are at risk; this is difficult when those at risk are strangers to the offender. At p. 14 of his report, Dr. Lohrasbe considered an optimistic scenario for Mr. Potter and stated: ...even high risk offenders--and Mr.

Potter is going to remain one for decades to come--can be managed in the community if they totally commit to the risk management process....This optimistic scenario is a possibility, but only a possibility, based on at least some cooperativeness in the past. There is little in his current attitudes and expectations, however, to indicate that this scenario is likely. He opined that Mr. Potter should be supervised as long as possible and agreed that lifetime orders pursuant to s. 161 of the Criminal Code can serve that purpose but did not comment on their effectiveness vis-à-vis Mr. Potter. [ 59 ] Dr.

Lohrasbe also described what he called a “safe scenario” which recognizes that Mr. Potter has struggled with his deviant urges and has demonstrated that his internal self-control is insufficient to resist those urges. In the final paragraph of his report (Exhibit D-2), he wrote: Risk management is a human endeavour, with multiple supervisors and therapists, and Mr. Potter will almost inevitably encounter people charged with supervising him with whom he may not have that kind of rapport. This scenario also recognizes that loneliness is a driving dynamic with Mr.

Potter, and his poor social skills promote loneliness and stress, and when facing inevitable life stressors in the future, he may, consciously and/or unconsciously, act in ways that ensures ( sic ) his return to prison. In sum, this scenario is anchored in the tragic reality that Mr.

Potter’s cognitive, affective, social and sexual problems are neurodevelopmental in their origin and hence largely irreversible, and that it is unrealistic to expect him to permanently internalize the full range of attitudes, values, skills and behaviours that ensure self-regulation and self-control to the degree that there are no further victims. Issues [ 60 ] The following issues have been left to be determined by the Court: (

i) Has Mr. Potter been convicted of a serious personal injury offence as defined in s. 752 of the Criminal Code ? (ii) Is Mr. Potter a dangerous offender on the basis of any of the grounds set out in s. 753(1) (a)(i)(ii) or (

b) of the Criminal Code ? and (iii) If Mr. Potter does meet the criteria for designation as a dangerous offender, what is the appropriate sentence? The Law [ 61 ] The statutory rules governing dangerous offender applications, procedures, findings and sentences are found in

Part XXIV and encompass sections 752 to 761 of the Criminal Code . [ 62 ] The offences for which Mr. Potter has been convicted occurred in 2014; accordingly, the current provisions of

Part XXIV of the Criminal Code (post-2008 amendments) apply to these proceedings. At the designation stage, the question is whether the evidence meets the requirements of s. 753(1) of the Criminal Code which states: 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 an offender has been convicted is a serious personal injury offence described in paragraph (

a) of thedefinition of that expression in

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

i) a pattern of repetitive behaviour of by the offender, of which the offence for which he or she has been convicted forms a part, showinga failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychologicaldamage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part,showing a substantial degree of indifference on the part of the offender respecting reasonably foreseeable consequences to other personsof his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature asto compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behaviouralrestraint; or (

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

b) of thedefinition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in thecommission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and alikelihood of causing injury, pain, or other evil to persons through failure in the future to control his or her sexual impulses. [63] The Supreme Court of Canada has interpreted and provided guidance in the application of these provisions and, on multipleoccasions, has discussed the purposes and intricacies of the legislative scheme.

Although the legislation was amended in 2008, theSupreme Court decision in R v Lyons, (SCC), [1987] 2 SCR 309, remains instructive. Justice La Forest stated that thedangerous offender and long-term offender regime was designed to deal with the worst of the worst (ibid at 321). The dangerousness ofthe conduct is relevant, as is the perceived responsiveness of the individual to rehabilitation. In the absence of that probability ofrehabilitation, indeterminate detention may be necessary to remove those offenders from society (ibid at 321-22).

Further, the choice toimpose an indeterminate sentence is made in the context of an accused’s criminal history and future rehabilitative prospects as well as theseriousness of the predicate offence; for that reason, it remains proportional and consistent with other sentencing principles. To take intoaccount the likelihood of future offending does not constitutionally invalidate an indeterminate imprisonment option.

Broadly speaking,La Forest J. characterized the legislative scheme as a means of identifying a very narrow range of offenders for whom indeterminatedetention is necessary to protect the public (ibid at 327-28, 338). The Court also dealt with the importance of the parole process to theappropriate treatment of those designated as dangerous offenders (ibid at 339, 341). [64] More recently, in R v Steele, 2014 SCC 61 , [2014] SCC 61, [2014] 3 SCR 138, Justice Wagner (as he then was) alsospoke to the underlying purpose of both the dangerous offender and long-term offender regimes in the Criminal Code.

According toWagner J., “[t]he primary rationale for both indeterminate detention and long-term supervision...is public protection” (ibid at para 29). For dangerous offenders, that objective can only be accomplished through the use of preventative detention on an ongoing basis.

Thepattern of criminality exhibited by the dangerous offender forms the basis of the indeterminate sentence; however, assessments of futurerisk are also important in ensuring that ongoing incarceration is necessary for the safety of the public. [65] Justice Wagner further indicated that for long-term offenders, determinate sentences coupled with LTSOs serve the dualpurposes of protecting the pubic as well as rehabilitating offenders and reintegrating them back into the community, provided thatintegration is not inconsistent with public protection (ibid at para 30, citing R v Ipeelee, 2012 SCC 13 at para 50, [2012] 1 SCR 433).

Overall, this suggests that the primary consideration in sentencing a dangerous or long-term offender to indeterminate imprisonment oran LTSO should not be solely whether the statutory requirements have been met, but rather whether those sentences are necessary toprotect the public from any future criminality. Where they are necessary for that purpose, they are justified.

Where they are not, less-restrictive alternatives should be canvassed fully to ensure a just result. [66] The Supreme Court of Canada again considered the dangerous/long-term offender legislation in R v Boutilier, 2017 SCC 64,[2017] 2 SCR 936 [Boutilier]. Justice Côté, writing for a majority of eight, addressed the role of judicial discretion in the context ofdangerous offenders and concluded that where an individual meets the statutory requirements to be designated a dangerous offender, thedesignation must follow as s. 753(1) uses the word “shall” not “may.” However, there is discretion at the sentencing stage.

Although s.753(4.1) creates a presumption of indeterminate imprisonment, it is one that can be rebutted when the sentencing judge is satisfied “that

there is a reasonable expectation that a lesser measure will adequately protect the public” ( ibid at paras 20 and 76). [ 67 ] Côté J. also indicated that designation as a dangerous offender depends on a judicial assessment of future risk and that future treatment prospects are integral to that assessment. This helps to ensure that only those who will continue to be a threat to others in the future will be labelled dangerous ( ibid para 23).

At para. 27, Côté J. described the current criteria for such a designation as follows: ...[b]efore designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.

The implication from these criteria is that a designation should occur only when other courses of action have proven ineffective. [ 68 ] However, the conclusion that an offender is “unable to surmount” his behaviour does not necessarily mean that an indeterminate sentence is always the correct disposition. Côté J. opined that this is the purpose of judicial discretion at the sentencing stage, where the judge must “turn his or her mind to whether the risk arising from the offender’s behaviour can adequately be managed outside of an indeterminate sentence” ( ibid para 31).

This prospective inquiry into the likelihood of recidivism and the intractability of the offending is crucial as it prevents the imposition of indeterminate sentences on individuals who were “violent in the past but who [present] no future threat” ( ibid para 35 and 37). In such a situation, public safety may not require an indeterminate sentence although it, along with the other purposes and principles of sentencing, including proportionality, may still require a lengthy term of custody and continued monitoring in the community.

These are the issues with which psychiatric reports can assist judges. [ 69 ] Côté J. further instructed that, contrary to some suggestion to the contrary, “[a]n offender’s future treatment prospects are, and have always been, a relevant consideration at the designation stage,” not just the sentencing stage ( ibid at para 42).

When assessing such applications, judges should first consider whether the circumstances of the present offence, the individual’s past criminality, and his or her future treatment prospects disclose a high likelihood of harmful recidivism or intractability of criminal conduct as required by s. 753(1) (

a) and (

b) of the Criminal Code ( ibid para 43). If those criteria are met, designation will follow. On the other hand, “if [an individual’s] treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable,” the person cannot be designated a dangerous offender ( ibid at para 45). At both the designation and sentencing stages, the proper inquiry is similar.

As stated by Côté J.: [a]ll of the evidence adduced during a dangerous offender hearing must be considered at both stages of the sentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria ( ibid at para 44). [ 70 ] The argument that an indeterminate sentence is inconsistent per se with the principles of sentencing was rejected by Côté J., who stated that those principles apply to all sentencing decisions, regardless of type or context, and an indeterminate sentence is simply but one type of sentence that may be appropriate in certain circumstances.

The sentencing court need only ensure that the sentencing principles are applied in arriving at fair and proportional sentences for particular offenders in particular circumstances ( ibid para 62). Thus, factors such as moral culpability, seriousness of the offence, mitigating and aggravating circumstances and the principles developed for Indigenous offenders are part of all sentencing processes, including those under

Part XXIV. Each of these considerations are relevant in deciding whether a lesser sentence would adequately protect the public ( ibid para 63). [ 71 ] In upholding the imposition of an indeterminate sentence for Mr. Boutilier, Côté J. noted the “bleak picture” presented to the court regarding Mr. Boutilier’s history and future prospects. The sentencing judge had made reference to Mr. Boutilier’s ongoing inability to control his drug addiction and its impact on the great likelihood that he would continue to offend. The chance of successful treatment was low as Mr.

Boutilier had frequently violated court-imposed conditions. The indeterminate sentence was deemed reasonable by the majority of the Supreme Court of Canada. [ 72 ] The superior courts of this province have also had occasion to review decisions respecting dangerous offender applications; their guidance is instructive as to the sentences considered appropriate, or inappropriate, as the case might be. In R v Toutsaint , 2015

SKCA 117 , 467 Sask R 248, the Court allowed the Crown appeal and substituted an indeterminate sentence for the original sentence of three years followed by a five-year LTSO. The Court noted that Mr. Toutsaint had a criminal record comprised of 74 convictions, was deemed a high risk to re-offend both violently and sexually, refused to take responsibility for his crimes or commit to rehabilitation and likely suffered from FASD ( ibid at para 4, 5, 15). Mr.

Toutsaint did not successfully complete programming while in prison, was not compliant with medical treatment, lacked familial and community support and had a history of frequent relapse on his release from custody. The Court concluded that there was no evidence upon which it could be concluded that a sentence other than an indeterminate one could reasonably be expected to protect the public ( ibid at para 18). [ 73 ] In R v McCallum , 2016 SKCA 96 , 484 Sask R 175, Mr. McCallum received an indeterminate sentence at first instance; this was upheld on appeal.

The Court noted that he had begun offending at the age of 12 or 13 with violent offences recorded at age 16. He had 87 entries on his criminal record and had spent the majority of the last 23 years in custody. A forensic report noted that violence was his main coping strategy for stress. He was deemed to be at high risk to offend violently in the future. In addition, he had been diagnosed as a paranoid schizophrenic and refused to take medication to ameliorate symptoms of that illness. Justice Ryan-Froslie noted that Mr.

McCallum likely should be in a mental health facility but the Court had no authority to impose such a sentence. Overall, the indeterminate sentence was not unreasonable, given his lack of commitment to treatment and his high risk to re-offend violently in the future ( ibid at para 60).

The court also commented that the predicate offence in a dangerous offender application is merely “ the final act that shows a person cannot control his or her violent behaviour in the future and so is likely to continue to cause harm to others” ( ibid at para 39). [ 74 ] R v Jensen , 2016 SKCA 109 , 484 Sask R 22, was released prior to the Supreme Court decision in Boutilier . In that decision, the Court clarified the mandatory nature of the dangerous offender designation if the requirements of s. 753(1) of the Criminal Code have been met.

On appeal, the court found that the Crown had met the onus at trial and that the trial court erred in considering the suitability of a long-term offender designation following a s. 753(1) inquiry. Having found that the Crown had met the onus, Justice Ottenbreit designated Mr. Jensen a dangerous offender. In describing the factors that led him to that conclusion, Ottenbreit J.A. stated that “violence permeates the criminal history of Mr. Jensen” even though the predicate offence had not been violent ( ibid at para 23).

However, the issue remained of whether “there was a reasonable expectation that the public would be protected from further serious personal injury offences perpetrated by Mr. Jensen if he was given a determinate sentence” ( ibid at para 23). The Crown’s appeal was allowed and the matter was referred back to the trial judge to determine the appropriate sentence ( ibid at paras 24-25). [ 75 ] In R v Montgrand , 2017 SKCA 49 , 352 CCC (3d) 485, a dangerous offender designation was made and a three year term of incarceration followed by a ten-year LTSO was imposed.

On appeal, the Court substituted a long-term offender designation but left the sentence unchanged. Mr. Montgrand had a criminal record containing a variety of violent and sexual offences, some of which had been against children. He was deemed to be a high risk to re-offend both sexually and violently, although it was considered that intensive addictions programming might help. Previous attempts at treatment had been unsuccessful, with Mr. Montgrand demonstrating a lack of insight into the effect of his behaviour on others and a general lack of regard for their rights. However, the trial judge also noted that Mr.

Montgrand was able to walk away from situations and would end his sexual advances in the face of resistance. Justice Caldwell cautioned against the over-reliance by the trial courts on risk assessments prepared by experts, saying that these reports do not constitute conclusive proof of risk; rather, they are to be weighed by the trial judge in conjunction with all of the other evidence adduced. The Court found that the evidence fell short of proving, beyond a reasonable doubt, that there was a likelihood Mr.

Montgrand would cause death, injury or severe psychological damage to other persons through his failure in the future to restrain his behaviour ( ibid at para 20). Further, the evidence failed to establish, beyond a reasonable doubt, that he had exhibited a substantial degree of indifference as to the reasonably foreseeable consequences of his behaviour to other persons pursuant to s. 753(1) (a)(ii) ( ibid at para 26). Although Mr. Montgrand minimized his offences and failed to take responsibility for them, he also was able to demonstrate some restraint in the past.

Consequently, although there was some indifference to foreseeable consequences of his aggressive behaviour, that indifference could not be characterized as substantial. The Court concluded that a dangerous offender designation was unreasonable in all of the circumstances and deemed Mr. Montgrand to be a long-term offender. [ 76 ] In R v Pelly , 2018 SKQB 160 , Justice Pritchard considered a dangerous offender application with the benefit of the guidance found in Boutilier . Mr. Pelly was facing sentence on a conviction for aggravated assault. The Court noted the experiences of Mr.

Pelly’s childhood: extreme poverty, alcohol and domestic abuse, neglect, and physical, verbal and sexual abuse. He spent much of his life in custody, beginning in his teens. A psychiatric report found him to be at a high risk to re-offend with an attendant low likelihood of treatability. The largest impediment to successful treatment was Mr. Pelly’s lack of commitment to change and improvement as evidenced by his 52 previous convictions. Pritchard J. found Mr.

Pelly’s criminality to be intractable since being in the community brought risks associated with gang membership and drug abuse, both of which generally precipitated violence. The expert report expressed hope that Mr. Pelly could successfully be managed in the community if he personally committed to and was compliant with treatment ( ibid at para 29). [ 77 ] The Court found that the challenges faced by Mr. Pelly in reducing his risk were too much for him to overcome and

designated him a dangerous offender. However, when determining the appropriate sentence for Mr. Pelly, the Court noted that an indeterminate sentence had to be imposed unless there was “a reasonable expectation that a lesser measure [would] adequately protect the public from [Mr. Pelly] committing murder or another serious personal injury offence” ( ibid at para 39). In the view of the Court, Mr.

Pelly’s pattern of personal injury offences resulted in physical, emotional, and psychological harm to the public, but that harm was not as severe as it could have been had the offences been more serious in degree ( ibid at para 46). Furthermore, Mr. Pelly’s challenging personal circumstances, including his lack of education, family support, frequent criminal offending beginning in his teens, a history of solitary confinement in prison, a lack of employment, and unrecognized and untreated mental health concerns reduced his moral culpability ( ibid at para 50).

Pritchard J. concluded that although an indeterminate sentence would best protect the public, a lesser measure would adequately protect the public ( ibid at para 52, 58). The suitability of the lesser measure was strengthened by the significant Gladue factors at play in Mr. Pelly’s life. He was sentenced to a determinate sentence of 66 months followed by a ten-year LTSO. [ 78 ] Counsel for Mr. Potter referred the Court to R v Rhode , 2016 SKQB 330 , which dealt with an application to have Mr. Rhode declared a long-term offender after his convictions for possessing, accessing and making child pornography.

He was so designated and ultimately sentenced to six years imprisonment to be served concurrently on each count, followed by a ten- year LTSO. In considering whether there was a reasonable possibility of eventual control of the risk posed by Mr. Rhode, the Court noted that he was quite intelligent and had the love and strong support of a spouse. The hope was that this, combined with the fact that he had a very unpleasant experience during his previous incarceration for similar offences, would be powerful motivators for resisting the temptation of child pornography.

This decision has been appealed, and at the time of writing, no ruling has been made by the Court of Appeal. [ 79 ] R v Lonechild, 2017 SKQB 338 , considered an individual who was convicted of two sexual assaults, the first of which occurred four months after his release from a federal sentence for a prolonged and vicious sexual assault on a stranger. The predicate offences involved vaginal and anal penetration of women either unconscious or incapable of giving consent. The Crown sought a dangerous offender designation.

The Court had no difficulty in finding that the requirements of s. 753(1) had been met; however, it ultimately concluded that a sentence less than an indeterminate sentence could adequately protect the public. Neither expert who provided testimony concluded that Mr. Lonechild was “beyond hope” ( ibid at para 54). The author of a Pre-Sentence Report opined that Mr. Lonechild posed a high risk but was “salvageable” ( ibid at para 55). Finally, the court considered very significant Gladue factors before sentencing Mr.

Lonechild to two ten year terms of imprisonment to be served consecutively, followed by a ten-year LTSO. Analysis (

i) Has Mr. Potter been convicted of a serious personal injury offence as defined in s. 752 of the Criminal Code ? [ 80 ]

Section 752 defines “serious personal injury offence” as: (

a) an indictable offence...involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit and offence mentioned in

section 271 (sexual assault), 271 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [ 81 ] In the present case, the Court is satisfied that the sexual assault to which Mr. Potter has entered a guilty plea is a serious personal injury offence as defined in s. 752 of the Criminal Code and counsel for Mr. Potter has quite properly conceded this point. The Court is left to determine whether the Crown has established, beyond a reasonable doubt, that Mr. Potter meets the criteria of a dangerous offender as set out in s. 753(1) . (ii) Is Mr.

Potter a dangerous offender on the basis of any of the grounds set out in s. 753(1) (a)(i)(ii) or (

b) of the Criminal Code ?

[ 82 ] Regarding subsection 753(1)(a)(i), the Court is satisfied that Mr. Potter’s conduct demonstrates a pattern of behaviour that shows a persistent failure to restrain harmful conduct, particularly toward children, and a likelihood of continued failure to do so in the future. This conclusion is supported by Mr. Potter’s pattern of past conduct as well as the psychiatric assessments and testimony of both Dr. Tomita and Dr. Lohrasbe, both of whom concluded that there is a high risk of Mr. Potter offending sexually in the future (see Exhibit C-1, Report of Dr. Tomita, at para 146 and Exhibit D-2, Report of Dr.

Lohrasbe, at p 11). [ 83 ] As indicated, Mr. Potter began offending in a sexual manner when he was as young as 12 years old. He has had multiple victims, primarily males, but sometimes females; by his own admission, N.D. was his 23 rd or 24 th victim. The precise number of children victimized by Mr. Potter is uncertain; he could not provide specifics about all, but he did give some information about other victims for whom he did not face charges. Further, he lived independently for a time when his activities were not subjected to scrutiny. Based on Mr.

Potter’s history, it can be safely inferred that he has had more victims than the criminal convictions reflect even though the precise number is unknown. [ 84 ] Mr. Potter describes a sexual attraction to children and “uncontrollable urges” in that regard. Both Dr. Lohrasbe and Dr. Tomita noted that Mr. Potter has demonstrated some improvement in controlling his sex offending in the past, particularly with the aid of pharmaceutical intervention, but both confirmed that, at the time he was interviewed by each of them, Mr. Potter was averse to such treatment because of his discomfort with its side-effects.

Community supports from probation officers, counsellors and psychiatrists has allowed Mr. Potter to disclose his thoughts and fantasies of offending at some points, but did not prevent the predicate offence. Overall, there are some positives in Mr. Potter’s history, but they are significantly outweighed by the negatives. [ 85 ] Both psychiatrists concluded that Mr. Potter has some difficulty in appreciating the harmful effects of his sexual offending on the child victims. As Dr. Tomita reported (Exhibit C-1 at para 68), Mr.

Potter “believed that he is a risk to boys to commit inappropriate contact but he did not view this as harmful,” in essence suggesting the acts were unlawful but not harmful. In contrast, when Dr. Lohrasbe asked him to reflect upon the potential effects on the children, Mr. Potter’s demeanour demonstrated some awareness of the harm caused. When the discrepancy of his responses to the two doctors was put to him, he had no explanation other than “it depends” (Exhibit D-2 at p 5).

Although he consistently fails to fully accept the harmful effects of his sexual offending on his victims, he can show remorse when his attention is focused. Mr. Potter has rationalized his behaviour on the basis that the children are consenting to the sexual contact and that the experience is not harmful to them because they, along with him, generally derive pleasure from that contact. Indeed, Mr. Potter testified that he knows that sexual behaviour with children is illegal, but said that whether the behaviour is truly harmful “depends on how you look at it–psychological effects can be harmful” (emphasis added).

However, it is also clear from his testimony and his statements to Dr. Lohrasbe that he is aware that children are incapable of consenting to sexual activity of any kind with an adult (Exhibit D-2 at p 5) but nonetheless, he seems to conflate the acquiescence of an innocent child with consent. [ 86 ] Mr. Potter’s ongoing trouble in understanding the gravity of his offending, in conjunction with what Dr. Lohrasbe refers to as a lack of trust in “the system,” suggests that it is unlikely that he will make the personal commitment necessary to ensure that he does not offend in the future.

There is also the aspect of his blaming community support workers for not preventing him from offending or breaching his release conditions once he disclosed his fantasies about children. This came through, to a degree, in his testimony, when he said that upon release he would like to live in Toronto where there are better programs and more things to keep him distracted, presumably from his sexual fantasies. Mr. Potter refuses to or is incapable of addressing the basis for his offending on a personal level or accepting that he will have to exert effort to control his behaviour.

Rather, he somewhat naively concludes that a geographical cure is all that is required and a move to Toronto, with its perceived resources, is what he needs to remain offence-free. To Mr. Potter, the issue is one of external resources as opposed to his own internal struggle. [ 87 ] Given Mr. Potter’s inability to control his sexual impulses and to meet his probation conditions in the past, it is impossible to accept that Mr. Potter will or can make the complete personal commitment to the effort he would have to expend to make community release a viable option.

He has not previously made that kind of commitment and his promise to do so in the future rings hollow in the face of past performance. Although both experts opined that Mr. Potter could potentially achieve long-term rehabilitation with appropriate and permanent supports and medical intervention, neither was convinced that such interventions were likely to succeed largely because of Mr. Potter’s reluctance to commit to his rehabilitation and his history of violating conditions of release and treatment. These difficulties are compounded by the cognitive impairments and personality disorder noted by Dr.

Tomita (Exhibit C-1 at para 170).

[ 88 ] One factor adverse to an affirmative finding under s. 753(1)(a)(

i) is the apparent lack of sexual offending against children between 2000 and 2014. On the face of it, such a sizeable gap might suggest that Mr. Potter has achieved some degree of control over his sexual urges and that future risk, particularly regarding children, might be managed with appropriate treatment and supports in place. However, Mr. Potter was convicted of other offences in that time frame, including criminal harassment, carrying a concealed weapon, two counts of failing to comply with a probation order, two counts of breaching a recognizance and an assault on an inmate: (see Exhibit P-4). As Dr.

Tomita observed, “the common thread between almost all of these breaches is the fact that they were connected to Mr. Potter’s sexually deviant interest in children” (see Exhibit C-1at para 58). For that reason, along with the above observations that Mr. Potter has consistently failed to fully commit to medical and/or psychological treatment and questions the utility of community-based support systems, the Court is disinclined to regard the lack of sexual assault convictions between 2000 and 2014 as determinative under s. 753(1)(a)(i).

The Court is not convinced that this gap suggests a reduced likelihood of future sexual offending by Mr. Potter given the other convictions that were driven by his prurient interest in children. Further, there is little information about what he was doing for part of that time frame. The high risk of future offending noted by both expert witnesses is still present. [ 89 ] The Court has also noted that Mr. Potter, in the course of the proceedings, expressed a willingness to abide by conditions requiring permanent supervision and to participate in high intensity programming, including the use of anti-androgens.

However, after taking all of the evidence into account, the Court is not persuaded that he is capable of maintaining such compliance in the long term. He has demonstrated temporary improvements at certain points in his criminal history, but subsequent offending has proven to be inevitable. Further, the Court finds Mr. Potter’s difficulty in truly appreciating the harmful impact of his offending and his tendency to place primary responsibility for his rehabilitation and community reintegration on others to be particularly concerning. This leads the Court to conclude that Mr.

Potter is presently unable to surmount his criminal offending against children. In other words, his behaviour is “intractable” within the meaning of Boutilier ( supra at para 27 ). [ 90 ] The evidence, considered in its entirety, indicates that there is a high likelihood of harmful recidivism by Mr. Potter in the future; the testimony and reports provided by Drs. Tomita and Lohrasbe have been educational in this regard. While a period of non- offending may be possible, the evidence suggests that future victims will inevitably follow absent strict controls on Mr. Potter.

Given the gravity of sexual offences against children, the serious psychological and emotional damage that can result and the significant likelihood of re-offending by Mr. Potter, the Court is satisfied that the requirements of s. 753(1)(a)(

i) have been met and that the dangerous offender designation must follow. [ 91 ] Before addressing the remaining issues, the Court would note that this conclusion would have been the same under consideration pursuant to s. 753(1)(a)(ii). Mr.

Potter’s conduct in attending places children frequent and engaging children could be deemed persistently aggressive pursuant to that subsection, and the evidence discussed above certainly indicates “a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour.” As indicated earlier, Mr. Potter rationalizes his behaviour on the basis that the children are ‘consenting’ to the sexual activity and that it is not harmful to them because the children also derive pleasure.

Although he verbally expresses that psychological effects can be harmful, and can respond appropriately when specifically directed to think about the effects of his behaviour on children, there is little to suggest that he actually believes that harm is done. The law is clear that exploitive sexual contact between adults and children is, by its very nature, destructive to the well-being of children and those acts are punished accordingly. Given Mr.

Potter’s stated perspective, the Court can only conclude that his indifference to the harm his offences cause is substantial within the meaning of s. 753(1)(a)(ii). (iii) If Mr. Potter does meet the criteria for designation as a dangerous offender, what is the appropriate sentence? [ 92 ] The Supreme Court of Canada made clear in Boutilier ( supra ), that, while s. 753(4.1) imposes a rebuttable presumption of an indeterminate sentence for dangerous offenders, the sentencing judge retains full discretion in assessing a fit and appropriate sentence; all options available under the Criminal Code can be considered.

The sentencing Court must consider whether “lesser measure[s]” under s. 753(4)(

b) or (

c) would “adequately protect the public against the commission by the offender of murder or a serious personal injury offence” to the standard of a “reasonable expectation” of such prevention (s. 753(4.1)). The sentencing options available in Mr. Potter’s case are the following: (

i) a determinate sentence of two years with probation to follow or a sentence greater than two years, (ii) a determinate sentence up to 14 years followed by an LTSO of up to 10 years, and (iii) an indeterminate sentence. [ 93 ] The first question is whether a determinate sentence of imprisonment reasonably can be expected to protect the public against future sexual assaults against children or other serious personal injury offences by Mr. Potter. For the following reasons, the Court must answer that question in the negative.

Although a proportional prison sentence could be constructed, and in fact would be usual, for the predicate offence of sexual assault, such a sentence would not address the need for denunciation and deterrence given Mr. Potter’s history. Further, the likelihood of successful rehabilitation in Mr. Potter’s case requires a greater level of intervention in order to protect the public. Dr. Tomita, Dr. Lohrasbe and, indeed, Mr. Potter have all expressed concern that he will recidivate if not provided significant and long-term community support. Of course, the success of that support demands that Mr.

Potter be personally committed to

his rehabilitation. His criminal history, the expert opinions and Mr. Potter’s pattern of ambivalent compliance do not provide any confidence that concerns about future offending would be so reduced as to adequately protect the public even with significant supports. As the evidence indicates, Mr. Potter does not have meaningful familial ties, has few pro-social friends and has a very limited employment history. These factors further exacerbate the risk of future offending if full freedom in the community could be anticipated at the end of his sentence. In addition, Mr.

Potter has been noted to take the attitude, while on probation, for example, that his life would start once he was no longer supervised (evidence of Marc Riendeau). [ 94 ] Similar reasoning applies to the second inquiry. Could it reasonably be expected that a determinate custodial sentence in conjunction with an LTSO of a maximum of ten years would adequately protect the public against future sexual assaults and other serious personal injury offences? An LTSO, with proper community supports in place, may well reduce or perhaps eliminate the likelihood of future offending by Mr. Potter for a time.

The Court notes, however, that Dr. Lohrasbe, in particular, concluded that Mr. Potter will likely remain at risk to re-offend for decades into the future even taking into account the possibility that the process of aging may affect recidivism (Exhibit D-2 at p 12-13 and Exhibit C-1 at paras 166-69). Mr. Potter also has difficulty with self-control as demonstrated by his criminal history and his conduct in a jail setting, as documented in Exhibit P-12. This, according to Dr. Tomita (Exhibit C-1 at para 171) derives from neuro-developmental deficits that compound Mr.

Potter’s personality disorder features and will not improve with the simple passage of time. [ 95 ] The finite nature of an LTSO pursuant to s. 753(1) (

b) of the Criminal Code means that such a disposition creates a temporary fix only; again, unless and until Mr. Potter commits fully to treatment and rehabilitation, it is difficult to forecast a material reduction in risk. Once the supervision inevitably ends and Mr. Potter achieves full freedom in the community, it is most probable that the chance of his re-offending sexually against children will return to a high level. Mr. Potter’s past performance has demonstrated that community- based strategies alone are insufficient to deter him from offending. The evidence is that Mr.

Potter disclosed his interactions with N.D. as part of voluntary sex offender treatment before the predicate offences took place but could not stop himself from offending. According to Dr. Tomita, this “...suggests an inability to self-manage his risk even with community treatment and volunteer supports in place” and one can infer that his paedephilic disorder is at a severe level (see Exhibit C-1 at para 165). The Court finds that Dr. Tomita’s concerns are well-founded and further notes that, during the time frame of the offences, rather than embracing the community stability he was afforded, Mr.

Potter engaged in smoking marijuana to excess in spite of warnings from his probation officer about the risks associated with that conduct. [ 96 ] On the basis of all of the evidence, the Court is not convinced beyond a reasonable doubt that the risk to the public of future serious personal injury offences by Mr. Potter can be adequately managed through community-based measures and supports, even those buttressed by an LTSO. Persistent ongoing monitoring of Mr. Potter beyond ten years is necessary to ensure that he will not or cannot re- offend.

Transient measures like an LTSO, treatment programs, and volunteer supports cannot ensure that further offending will not occur, and they are unlikely to reduce the risk of future offending either. [ 97 ] Thus, the remaining sentencing option is an indeterminate sentence of imprisonment under s. 753(4) (

a) of the Criminal Code . Coming to the conclusion that an individual must be sentenced to an indeterminate period of custody is never an easy decision, especially for an individual like Mr. Potter whose mental and intellectual issues are pre-existing, out of his control and, in all likelihood, have contributed significantly to his offending. These deficits reduce his moral culpability to some extent. However, Mr. Potter has had the benefit of various sentences in the past and the opportunity for treatment, both in and out of custody.

These have not diminished his risk or motivated him to consider the root cause of his offending. Until that occurs and Mr. Potter commits to gaining control of his fantasies and managing his behaviour, his risk to the public will be unabated. [ 98 ] Consequently, a thorough review and consideration of all of the evidence has convinced me of the following:

(1) Mr. Potter must be designated a dangerous offender; and (2) any sentence less than an indeterminate period of incarceration will not be sufficient to adequately protect the public from the high risk of future sexual offending that Mr. Potter presents. Throughout this process, the Court has remained cognizant that protection of the public is the primary purpose and objective of the dangerous offender legislative regime. In this case, the segment of the public in need of protection from Mr.

Potter is its children, some of the community’s most vulnerable members. [ 99 ] It is also important to note, however, that the dangerous offender designation and an indeterminate sentence do not foreclose the possibility of parole being granted to Mr. Potter once he has served seven years in custody, should he establish, to the satisfaction of the Parole Board, that his risk to the community can be managed adequately in the community (see s. 761(1) of the Criminal Code ).

That possibility gives hope that, should he fully commit to treatment and rehabilitation, acquire insight into his own role in offending and stop diverting responsibility for his recidivism to others, Mr. Potter could be rewarded for his efforts. For now, however, the safety and protection of the public from the commission of serious personal injury offences must be given priority and, in Mr. Potter’s case, the dangerous offender designation and imposition of an indeterminate sentence is the only viable option that meets that goal.

[ 100 ] Upon conviction for sexual assault, the following ancillary orders are mandatory.

a) pursuant to s. 487.051 of the Criminal Code , there will be an order requiring that Mr. Potter provide a sample of his DNA;

b) pursuant to s. 109 of the Criminal Code , Mr. Potter is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition and explosive substance for a period of ten years commencing upon his release from custody;

c) Mr. Potter will be subject to an order pursuant to s. 161 for life; and

d) Mr.

Potter will further be subject to an order pursuant to s. 490.012 requiring that he comply with the requirements of the Sex Offender Information Registration Act ( SOIRA ) for life pursuant to s. 490.013(5). [ 101 ] Further, there will be an order directing that a copy of all reports and a transcript of the testimony given by all of the witnesses together with this written decision of the Court be forwarded to the Correction Service of Canada in accordance with s. 790 of the Code . [ 102 ] With respect to count three on the Information, exposing his genitals to a person under the age of sixteen contrary to s. 173(2) of the Criminal Code , there will be a sentence of two years incarceration, time served. _________________________ M.L.

Gray, J