R. v. W. D, 2020 NLSC 96

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. W. D . , 2020 NLSC 96 Date : July 7, 2020 Docket : 201601G6227 Her Majesty The Queen v. W.D. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 25, 2020

Summary: Following convictions for sexual assault and sexual interference, the offender was designated a long-term offender and placed under a Long-Term Supervision Order for ten years. After giving credit for time served at a ratio of 1 to 1, the offender was sentenced to two years plus a day for the predicate offences, in part so as to enable the offender to attend high intensity sex offender programming offered by CSC. Appearances:

Dana E. Sullivan Appearing on behalf of the Crown Timothy P. O'Brien Appearing on behalf of W.D. Authorities Cited: CASES CONSIDERED: R. v. M. (L.) , 2008 SCC 31 ; R. v. Vokey , 2000 NFCA 14 ; R. v. R.B ., 2019 NLCA 22 ; R. v. Friesen , 2020 SCC 9 ; R. v. D. (J.S.), 2014 BCCA 284 ; R. v. Boutilier , 2017 SCC 64 ; R. v. Little , 2007 ONCA 548 ; R. v. Steele , 2014 SCC 61 ; R. v. Spilman , 2018 ONCA 551 ; R. v. B.(A.) , 2015 NLCA 19 ; R. v. Brisssard , 2017 ONCA 891 ; R. v. Stewart , 2013 SKPC 64 , aff’d 2014 SKCA 11 ; R. v. Durocher , 2019 NWTSC 37 ; R. v. S.S. , 2019 ONSC 3269 ; R. v.

Skookum , 2018 YKCA 2 ; R. v. Summers , 2014 SCC 26 ; R. v. Cote , 2015 SKCA 52 ; R. v. Hopley , 2015 BCCA 499 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Youth Criminal Justice Act , S.C. 2002, c. 1 ; Sex Offender Information Registry Act , S.C. 2004, c. 10 REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] On 10 April 2017 W.D. entered pleas of guilty and, based upon an Agreed Statement of Facts, was convicted of sexual assault, contrary to s. 271 of the Criminal Code , R.S.C. 1985, c.

C-46 , sexual interference contrary to s. 151 of the Criminal Code and breach of youth sentence, contrary to s. 137 of the Youth Criminal Justice Act , S.C. 2002, c. 1 . [ 2 ] W.D. has been on consent remand since his arrest on 3 May 2016, and in pre-sentence custody since his convictions. His sentencing was scheduled for a hearing on three separate occasions, but postponed twice pending receipt of a defence expert report and once due to disruption in court services arising from the COVID-19 pandemic. [ 3 ] The Crown originally applied to have W.D. declared a dangerous offender under s. 753 of the Criminal Code .

However, while awaiting sentencing, he was assessed by two forensic psychiatrists – Dr. Jasbir Gill (for the Crown) and Dr. Hy Bloom (for the defence) – both of whom prepared a detailed report outlining their opinion. Both doctors concluded that W.D. was at a high risk to reoffend, but with appropriate sex offender programming, and community supervision upon release from prison, the future risk to public safety could be managed.

As a consequence, both the Crown and defence are now in agreement that W.D. meets the criteria for a long-term offender designation, as per s. 753.1(1) of the Criminal Code and should be sentenced accordingly.

On 12 June 2020, with the consent of the Attorney General, the Crown filed a fresh application seeking this designation. [ 4 ] While the parties agree that W.D. should be designated a long-term offender, resulting in a ten year Long-Term Supervision Order (LTSO), they disagree on the length of prison sentence he should receive for the predicate offences of sexual assault and sexual interference, and whether he should be subject to an Order under s. 161 of the Criminal Code . agreed statement of facts [ 5 ] The Agreed Statement of Facts upon which W.D. was convicted reads as follows: 1. [S.S.] was born on […], 2002. 2.

In March 2016 she was residing at Blue Sky Group Home, under the care of Child Youth and Family Services. 3. [S.S.] went missing for a 48 hour period during the weekend of March 18 th and 19 th , 2016. The Royal Newfoundland Constabulary (RNC) sought the public’s assistance to find her. 4. When [S.S.] returned to the group home she had what appeared to be small bruises around her neck. [S.S.] later advised that the marks were hickeys and that she had gotten them from [W.D.].

5. On March 29, 2016, Kelsey Barrett, [S.S.’s] social worker, contacted the RNC after she learned that [S.S.’s] foster mother had accessed [S.S.’s] Facebook account and saw numerous messages between [S.S.] and a young man named “[W.S.]”. Ms. Barrett contacted youth corrections and learned: that [W.S.] is [W.D.]; that [W.D.] is 18 years old; and that his youth corrections officer is Doug Scott. 6. The Facebook messages detailed how [W.D.] and [S.S.] planned to meet on March 18 th , 2016. [W.D.] asking [S.S.] if she wanted to stay the night. [S.S.] replied “I don’t know yet.” 7. On May 29, 2016, Cst.

Daniel Morrissey, an officer with the RNC’s Child Abuse and Sexual Assault unit, reviewed [W.D.’s] court orders and learned that [W.D.] is on a probation order that was issued on the 6 th of March 2015, with conditions that he have “No contact directly or indirectly with any person under the age of 14” and that he is “prohibited from use of the Internet or computer of any electronic or mobile device that has the capability of accessing the internet unless directly supervised by an adult supervisor.” 8. That same day, Cst.

Morrissey contacts youth corrections and learns that [W.D.] admitted to Doug Scott that he has been hanging out with [S.S.]. 9. That day, Doug Scott provided a statement to the RNC and asked that [W.D.] be charged with breaching his probation order. 10. Doug Scott provided reports to the RNC advising that [W.D.] knew [S.S.] and that she had been at [W.D.’s] apartment. [W.D.] admitting having communicated with [S.S.]. 11. On May 2, 2016, Cst. Morrissey attended [W.D.’s] residence at [removed] in St. John’s, Newfoundland and Labrador. Cst. Morrissey was invited inside by roommate [C.S.].

When police entered the apartment, [W.D.] appeared from his bedroom and said “I guess this is about my breaches.” 12. [W.D.] was given his Charter rights and police caution. He understood and declined to speak with counsel. He was brought back to RNC headquarters for an interview. 13. During the cautioned statement [W.D.] advised that he accesses the internet regularly and he is aware that this is in breach of his probation order. He advised he doesn’t intend to stop accessing the internet. 14. [W.D.] also advised that he has been in contact with [S.S.] both on Facebook and in person. 15. [W.D.] told Cst.

Morrissey that he was aware that [S.S.] was only 13 years old. 16. [W.D.] admitted to having oral, vaginal and anal sex with [S.S.] on multiple occasions. He admitted that he knew that [S.S.] was 13 years old before he had sex with her. 17. [W.D.] further advised that he knew having sex with the 13 year old [S.S.] was illegal given that he is 18 years old. He added “He knows dozens of people who fuck junior high students and get away with it.” 18. No force was used to obtain [S.S.’s] cooperation to engage in the various sexual acts.

She was too young to consent. 19. [S.S.] would not give a statement to the police.

20. Statements were taken from friends and former room-mates of [W.D.]. They confirmed that [W.D.] was aware of [S.S.’s] age. Theyconfirmed [S.S.] stayed at their apartment for a couple of weekends in March 2016. They advised [S.S.] stayed in [W.D.’s] room. 21. [J.S.], a former girlfriend of [W.D] and a roommate at the time of the offence, advised police that [W.D.] told her multiple times thathe was having sex with [S.S.].

She said “They were basically having sex every night [S.S.] was in their apartment.” When [W.D.] and[S.S.] were in his bedroom together, she stayed in the living room and watched TV to block out the noise. 22. [C.S.], described multiple occasions when [S.S.] stayed at their apartment. [W.D.] told them she was 13 years old. [C.S.] advisedpolice that [W.D.] told him that he was having sex with [S.S.].

He advised [W.D.] told him they were having sex the whole time she wasthere and he admitted to having anal sex with the 13 year old [S.S.]. [C.S.] was aware that [W.D.] was on probation for sex offences andwas not supposed to have contact with anyone under a certain age. [C.S.] also advised that while [W.D.] lived with him, [W.D.] wasaccessing the internet via a Play Station 4, a cell phone and a laptop. [6] Turning first of all to the question of whether W.D. should be declared a long term offender. long term offender designation [7] Pursuant to s. 753.1 of the Criminal Code, an offender may be deemed a long term offender and given a determinate sentence,followed by a LTSO of up to ten years’ duration.

The criteria for a long term offender designation is set out in s. 753.1(1) of theCriminal Code, as follows: 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), findan offender to be a long-term offender if it is satisfied that (

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

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

c) there is a reasonable possibility of eventual control of the risk in the community. [8] In R. v. M. (L.), 2008 SCC 31 the Supreme Court of Canada summarized the process for determining whether an offendershould be declared a long term offender (at paragraph 40): 40. The Criminal Code provides that the Crown must first of all apply to have an accused found to be a long-term offender after he orshe has been convicted, but before sentence is imposed (ss. 752.1(1), 753.1(1)(

a) and 753.1(3.1)(

a) Cr. C.). After this application is filed,the court may have experts assess the offender. Their report will be used as evidence in the application (ss. 752.1(1) and 753.1(1) Cr.C.). This report will enable the judge to determine whether the offender poses a serious risk to public safety. The Criminal Code sets outthree conditions that must be met before a judge may grant an application for supervision. (

i) First, a sentence of imprisonment of two years or more must be warranted for the offence for which the offender has been convicted(s. 753.1(1)(

a) Cr. C.). (ii) Next, the judge must be satisfied beyond a reasonable doubt that there is a substantial risk that the offender will reoffend (s.753.1(1)(

b) Cr. C.; see, for example, R. c. Beaulieu, [2007] Q.J. No. 2116, 2007 QCCA 403 (Que. C.A.), at para. 25). In assessing thatrisk, the judge must determine (s. 753.1(2) Cr. C.): (

a) that the offender has been convicted of a sexual offence under s. 151, 152, 153, 163.1(2), 163.1(3), 163.1(4), 163.1(4.1), 172.1,173(2), 271, 272 or 273 Cr. C., or has engaged in "serious conduct of a sexual nature in the commission of another offence of which theoffender has been convicted" (s. 753.1(2)(

a) Cr. C.); and (

b) that the offender has shown a pattern of repetitive behaviour that shows a likelihood of the offender's causing injury to or inflictingsevere psychological damage on other persons, or has, by conduct in any sexual matter, shown a likelihood of causing injury to otherpersons in the future (s. 753.1(2)(b)(

i) and (ii) Cr. C.; see, for example, R. c. C. (J.), (QC CA), [2001] R.J.Q. 2509(Que. C.A.)). This assessment of "prospective dangerousness" concerns, in sum, past conduct and the facts relating to the commission ofthe offences (R. c. Ménard, [2002] Q.J. No. 5271 (Que. C.A.), at para. 23).

(iii) Finally, the judge must find that there is a "reasonable possibility" of eventual control of the risk in the community ( s. 753.1(1) (

c) Cr. C. ). It is interesting to note that the expression used in the French version of this provision is possibilité réelle (real possibility) ( R. v. Muir (2003), 173 C.C.C. (3d) 75 , 2003 BCCA 66 (B.C. C.A.) , at para. 27 ). [ 9 ] Notwithstanding the concession of Crown and defence, it remains for the Court to apply these criteria to W.D.’s circumstances. Is a Sentence of Two Years or More Appropriate? [ 10 ] There is no doubt that in this case a sentence in excess of two years would be appropriate for the predicate offences of sexual assault and sexual interference.

Both offences are indictable and carry maximum penalties of ten years’ imprisonment. In both R. v. Vokey , 2000 NFCA 14 and R. v. R.B ., 2019 NLCA 22 , our Court of Appeal held that the range of imprisonment for sexual assault, involving intercourse, is three to five years’ imprisonment. In the recent Supreme Court of Canada decision of R. v.

Friesen , 2020 SCC 9 , the Court lamented the low sentences given for sexual offences against children, stating that mid-single digit penitentiary terms for sexual offences against children ought to be normal and upper single digit and double digit terms should be neither unusual, nor reserved for rare or exceptional circumstances. [ 11 ] The fact that W.D. has been on consent remand since his arrest on 3 May 2016 and in pre-sentence custody since 10 April 2017 does not change this conclusion.

The measure for determining whether the criteria of a sentence of imprisonment of two years, or more, has been met is the appropriate sentence to be imposed before an adjustment for time served (see R. v. D. (J.S.) , 2014 BCCA 284 at para. 19 ). Is There a Substantial Risk That W.D. Will Re-Offend? [ 12 ]

Section 753.1(2) (

a) of the Criminal Code requires that the offender has been convicted of one of a number of enumerated predicate sexual offences and that the offender has either: 753.1(2)(b)(i) … shown a pattern of repetitive behavior, of which the offence for which he or she has been convicted of forms a part, that shows a likelihood of the offender’s causing death of injury to other persons or inflicting severe psychological damage on other persons, or 753.1(2)(b)(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [ 13 ] On 10 April 2017, W.D. was convicted of one count of sexual assault, contrary to s. 271 of the Criminal Code and one count of sexual interference, contrary to s. 151 of the Criminal Code .

These are both predicate offences under s. 753.1(2) (a). [ 14 ] W.D. has a prior youth conviction for sexual interference, dating from 2015. In addition, his history of sexual abuse, which was not the subject of prosecution (due to his young age) was admitted by him through an Agreed Statement of Facts, dated 25 June 2020. This Agreed Statement of Facts reads, as follows: 1. Starting in or around 2005 when [W.D.] was between the ages of 7 and 8 years old he began sexually offending against his then three-year-old sister [J]. It began with sexual touching and progressed to oral sex.

He touched her vagina under her clothes. He asked her to remove her clothing. He removed his pants and underwear. He had her touch his penis and asked her to play with it. The incidents happened weekly over a number of years. 2. [W,D.] “humped” her with his clothes off and performed oral sex. He told her not to tell anyone. 3. Starting in 2006 when [W.D.] was between the ages of eight and nine years old and sister [A] was 5 years old, he began sexually offending against [A]. The activities involved him performing oral sex on her and they engaged in mutual sexual touching while naked.

He had [A] perform oral sex on him once. He enjoyed the risk. The acts occurred repeatedly over a number of years ending when he entered the care of, what was then, Child Youth and Family Services before his twelfth birthday. 4. On two occasions, in the summer of 2012 and Christmas 2012, [W.D.] sexually assaulted his youngest sister [H]. [W.D.] was between the ages of 13 and 14 years old at the time and [H] was three-years-old. 5. During the summer incident, he exposed himself to [H] in the woods near [H’s] home and touched her vagina inside her clothing.

In the December incident he asked [H] “can I touch your vagina”, then rephrased it to “can I touch your pee-pee” so she could understand. [W.D.] rubbed her vagina for 10-15 seconds. He exposed his penis to her. He performed oral ex on her and had her touch his penis. [ 15 ] W.D. agrees that without appropriate counselling and supervision there is a likelihood that he will reoffend.

[ 16 ] Both Dr. Gill and Dr. Bloom expressed the opinion that W.D. was at a medium to high risk to commit further sexual offences. Dr. Gill concluded: … Overall, I would view [W.D.] as being at moderate-high risk for sexual recidivism from a clinical psychiatric perspective. His actuarial scores place [W.D.] in the moderate-high risk category for sexually re-offending. However, some clinical features would suggest his risk is high. [ 17 ] Dr.

Bloom similarly concluded: Overall, and having regard to my clinical assessment of him as well as his score on the STATIC 99, my conclusion is that [W.D.’s] risk of reoffending, principally against a prepubescent child within his family structure (he has a track record of four such instances) is above average, or put in other words, moderate to high.

For reasons described above, his risk for reoffending in the circumstances in which he offended against [SS] is more difficult to be certain about. [ 18 ] On whether or not this prerequisite has been met beyond a reasonable doubt, I find myself in agreement with the Crown and defence. W.D.’s insight into his behavior, his history of sexual violence, as admitted by him, the facts of the predicate offences and the opinions of Dr. Gill and Dr. Bloom, collectively demonstrate a likelihood of W.D. causing “injury, pain or other evil” to other persons in the future, through similar offences.

Is There Reasonable Possibility of Eventual Control in the Community? [ 19 ] To find an offender to be a “dangerous offender” the Court must be satisfied that the offender’s conduct is intractable. Such behavior is behaviour the offender is unable to surmount (see R. v. Boutilier , 2017 SCC 64 ). [ 20 ] On the other hand, an offender may be declared a long term offender, rather than a dangerous offender, if the offender is amenable to treatment beyond a mere expression of hope. There must be good prospects for success in treatment, such as to reduce or contain the offender’s risk of reoffending (see R. v.

Little , 2007 ONCA 548 ). [ 21 ] In its Brief the Crown provided the following useful

summary, which I accept, of those facts which suggest that W.D.’s conduct falls short of being intractable: i. [W.D.] is youthful. ii. [W.D.’s] last victim was different from prior victims. While S.S. was still a vulnerable child, being 13 years old and in a CYFS group home, she was not five years old, she was unrelated to the accused, and as Dr. Bloom points out, from the file she appeared to have secondary sex characteristics. While some features of the sexual assault on S.S. were consistent with his prior offences, there remains some distinctions. iii. Dr.

Gill noted that most of [W.D.’s] offence history occurred when he was very young and his victims were “low risk, incest related.” iv. There is no evidence of hypersexualized behavior as an adult. There has been no evidence of inappropriate sexual activity while in custody or uncontrolled masturbation because his preferred stimuli is unavailable. Dr.

Gill advised this might mean [W.D.] is becoming less impulsive and is gaining more control over his behaviour as he ages. v. [W.D.] has repeatedly expressed a desire to take treatment and understand why he offends. • Prior to the predicate offence, [W.D.] expressed an interest in attending an intensive residential treatment program for sexually offending youth. Unfortunately, by the time [W.D.] agreed to attend he was 18 years old and had aged out of the programming. • [W.D.] expressed a desire to obtain treatment to Dr. Gill, Sam Martin and Dr. Bloom • Dr.

Gill stated that while in prison [W.D.] engaged in some programming (though not for sexually offending) and gained some personal insight, which is promising. • Dr. Gill advises that [W.D.] is intelligent and has the ability to benefit from programming. • At this point in time, [W.D.] has not had the benefit of intensive sex offender treatment programming. His counsel advises [W.D.] has accepted that he may have to spend further time in custody to take the programming that both forensic psychiatrists recommend for him. vi. Dr. Gill noted [W.D.] previously did well in structured environments.

However, he would commit offences when given an opportunity and less structure was in place. However, [W.D.] was youthful at the time of his earlier offences and this has been [W.D.’s] first experience with incarceration. He has spent the past four years in custody, and potentially matured. [ 22 ] For the foregoing reasons, I am satisfied that there are good prospects for success in treatment such as to reduce W.D.’s risk of re-offending. [ 23 ] Since the three criteria have been met, I designate W.D. to be a long term offender. the long-term supervision order (LTSO) [ 24 ] When, in 1997, Parliament amended

Part XXIV of the Criminal Code to create the category of long term offenders, it made it possible to supervise such offenders in the community. As an alternative to the indeterminate detention of dangerous offenders, the purpose of the long term supervision provisions is twofold: “to protect the public and to rehabilitate offenders and facilitate their

reintegration into the community” (see R. v. Steele , 2014 SCC 61 at para. 30 ). [ 25 ] At the sentencing hearing the Court heard from two local officials with Correctional Services Canada (CSC), Renee Spurrell, the Area Director and Susan Yetman, the Acting Program Manager.

Both provided a very helpful insight into the programming available during the determinate portion of an offender’s sentence, the process for the assessment of offenders, the imposition of long term supervision conditions, and subsequent monitoring for compliance. [ 26 ] Once sentenced, an offender immediately undergoes a comprehensive assessment designed to assess the offender’s specific needs, risks and mitigation strategy. The process takes about two months, resulting in what is referred to as the offender’s correctional plan.

It is during this assessment that the offender’s programing needs are identified, although where such needs are apparent, the programming may begin while the assessment is ongoing. [ 27 ] Successful completion of programming will, in part, serve to inform the conditions of the LTSO. For this reason, in the case of a long term offender, any recommended programming should be completed prior to CSC’s formulation of the specific conditions of the LTSO. These conditions are recommended to the National Parole Board (the Board), which then has up to three months to respond.

If endorsed by the Board, the conditions form part of the LTSO. The LTSO takes effect upon expiry of the sentence warrant (the last day of the sentence imposed for the predicate offence(s)). [ 28 ] The specific conditions of supervision are tailored to the individual and may include such things as restricted access to the internet, exclusion of certain areas, such as playgrounds, and no contact orders, by way of example. The conditions of a Criminal Code

section 161 Order may thus form a part of the LTSO, where deemed necessary by CSC. [ 29 ] In the case of federal offenders (two years plus a day), the majority of offenders serving a determinate sentence become eligible for statutory release after serving two-thirds of their sentence. In rare circumstances, the CSC will recommend to the Board that the offender remain in custody until the offender’s warrant expiry date.

To be detained until this date the offender must meet one of three criteria: the likelihood of committing a sexual offence involving a child, a serious drug offence, or likelihood of causing death or committing serious harm to another person. [ 30 ] A person serving a determinate sentence is eligible for parole after serving the lesser of one-third, or seven years of their sentence, and day parole six months prior to that date. Day parole and full parole are not statutory, but “earned” based on the CSC’s assessment of the offender and risk to the community.

In the case of day parole, the offender is deemed to represent a manageable risk to the community. Full parole is reserved for those offenders who display sustained positive change. [ 31 ] As with the conditions of a LTSO, CSC makes recommendations to the Board on the conditions that govern parole. [ 32 ] In situations where the offender earns early release in the form of parole, prior to the warrant expiry, the conditions which would eventually form part of the LTSO, can be made part of the offender’s parole in the interim.

In either case, the focus of the conditions is the protection of the public and integration of the offender into society. [ 33 ] Offenders on day parole are required to live in halfway houses. CSC operates one such house in St. John’s, with others operating as contracted facilities. The residency requirement can also be imposed as a condition of full parole, or as part of a LTSO. Again, the Board makes the final decision. [ 34 ] To his credit W.D. has expressed the desire to avail of sex offender programming while serving his determinate sentence. Such programming is recommended by both Dr. Gill and Dr.

Bloom, and is available to qualified federal offenders through CSC. The intensity of such programming will depend upon the specific needs of the offender. High intensity programming involves 108 sessions of 2 - 2.5 hours duration each, while moderate intensity involves 62 sessions of similar duration. Both types of programming take roughly five months to complete. Such programming may be available to those receiving a provincial sentence (two years or less) providing space is available.

The availability of such programming to federal offenders (two years plus a day) is assured, however. [ 35 ] The LTSO sought by the Crown is for the maximum of ten years. This request is not contested by W.D. I agree, in light of W.D.’s antecedents and the need to protect the public that a supervision Order of ten years’ duration would be appropriate. The conditions of the LTSO fall within the purview of CSC. sentencing for the predicate offences Protection of the Public in the Case of Long Term Offenders [ 36 ] Sentences under

Part XXIV of the Criminal Code for long term offenders have a different focus than those under

Part XXIII of the Criminal Code . While the principles and purposes of sentencing in ss. 718, 718.1 and 718.2 remain relevant, under

Part XXIV the protection of the public is paramount. In the case of a long term offender order, this protection is achieved by “reducing the offender’s risk through programming and treatment while serving the determinate sentence in order to facilitate the offender’s supervised reintegration into the community” (see Hopley at para. 59 ). [ 37 ] In R. v. Spilman , 2018 ONCA 551 the offender challenged the fitness of the custodial portion of his blended sentence.

He argued that it was not guided by the principle of proportionality, but was determined by the judge’s assessment of how long he should be in custody to complete correctional programs, prior to his release into the community under a LTSO.

The offender also argued that the judge erred in his calculation of the credit to be applied for pre disposition custody. [ 38 ] In dismissing the appeal, Watt, J.A. (for a unanimous court) concluded that in imposing a fixed term custodial sentence as part of a composite, the hearing judge is not restricted to imposing a determinate sentence that would be appropriate in the absence of a dangerous [or long term offender] designation. The analysis required for protection of the public under

Part XXIV may justify sentences that are longer than those appropriate outside of the dangerous offender context (at paragraph 32).

[ 39 ] Specifically, such sentences may be justified to ensure that the offender has access to required treatment programs while incarcerated (at paragraph 51). The sentence imposed, however, is subject to three constraints. The sentence must not exceed the maximum term of imprisonment for the predicate offence. Second, the sentencing principles in ss. 718-718.2 cannot be entirely ignored, although factors such as the degree of responsibility of the offender and gravity of the offence play a lesser role. Thirdly, the length of sentence must be responsive to evidence adduced at the hearing.

With regard to this latter criteria, Watt, J.A. stated (at paragraph 54): 54. Third, the length of sentence imposed must be responsive to evidence adduced at the hearing. The evidence about treatment programs should be specific, preferably indicating an approximate length or range of time within which the offender may be expected to complete the programming said to be necessary to protect the public.

There must be a clear nexus between that programming and future public safety, sufficient to support a "reasonable expectation" that the overall sentence will "adequately protect the public against the commission by the offender of murder or a serious personal injury offence": s. 753(4.1). And the evidence must account for the offender's "amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of reoffending": R. v. Little , 2007 ONCA 548 , 225 C.C.C. (3d) 20 (Ont. C.A.), at para. 40 . [ 40 ] Both Dr. Gill and Dr.

Bloom recommend that W.D. receive high intensity sex offender programming while incarcerated. Indeed, their opinion that W.D. can be safely integrated into society is predicated on him receiving such treatment. For his part, W.D. is a willing participant. Such programming can only be guaranteed by CSC to federally sentenced offenders, although on occasion, provincial offenders may participate. Programming takes roughly five months to complete, after which CSC is in a position to recommend conditions of the LTSO to the Board.

Applying the Sentencing Principles in ss. 718 – 718.2 [ 41 ] In the present case, as the victim was 13 years old, the primary consideration is that of denunciation and deference (see

section 718.01 of the Criminal Code ). In addition, the factors enunciated by our Court of Appeal in R. v. B.(A.) , 2015 NLCA 19 , (the B.(A.) factors) remain relevant. Applying these to the facts of this case leads to the following assessment, on the facts before me: • There is no evidence of a position of trust; • The victim was 13 years of age, while W.D. was 19, an age difference of 6 years.

I agree with the Crown, in that the age of the victim may now be of less relevance following the SCC decision in Friesen ; • The sexual encounters took place over one or two weekends; • There is no evidence that the victim was manipulated; • While W.D. planned to meet the victim and have her stay at his apartment, there is no evidence that this was for the purpose of sex; • W.D. knew the victim was age 13 and vulnerable; • There was no continuation of the conduct after being warned; • The Court was not provided a victim impact statement, although the harm caused to the sexual assault victims is well documented ( see Friesen ); • At his sentencing hearing, W.D. expressed remorse for the harm he had caused; • W.D. has a related record for an earlier sexual offence against a child and was on a youth probation order; • There are prospects for W.D.’s rehabilitation following appropriate programming and long-term supervision, without which there is a substantial risk that he will reoffend; • The pre-sentence report was so negative that the Crown initiated dangerous offender proceedings; • W.D. entered a plea of guilty; • W.D. has expressed a willingness and desire to participate in counselling. [ 42 ] In Friesen , the Supreme Court of Canada suggested that courts consider the following factors in delivering a fit sentence for sex offences against children (at paragraphs 121 – 154): • The likelihood to reoffend; • The abuse of a position of trust or authority; • Duration and frequency; • Age of the victim; • Degree of physical force. [ 43 ] As noted, without appropriate interventions there is a high likelihood that W.D. will reoffend.

There were multiple incidents involving oral, vaginal, and anal sex over one or two weekends. W.D.’s victim was 13 years old at the time, part of an age group that is disproportionately victimized by sexual violence.

Judicial Precedent [ 44 ] While no two cases are identical, I was referred to a number of prior decisions by both the Crown and defence. Of these, I have found the following to be the most useful: • In R. v. Brisssard , 2017 ONCA 891 , the 26-year-old offender was convicted of sexual assault after he had forced vaginal and anal intercourse on a 12 year-old girl staying at his house for a sleepover. He was declared a long-term offender and sentenced to 9 years’ imprisonment, followed by a 10-year LTSO. • In R. v.

Stewart , 2013 SKPC 64 , (affirmed on appeal, 2014 SKCA 11 ) the offender was convicted of sexual assault and sexual interference for touching his girlfriend’s daughter’s genitals with his fingers and penis multiple times. He was declared a long-term offender and sentenced to ten years’ imprisonment, less time served, followed by a ten-year LTSO After giving credit for time served, the court observed that the offender required at least three years of incarceration to allow for the intensive alcohol and sex-offender programming required to assist in his rehabilitation. • In R. v.

Durocher , 2019 NWTSC 37 , the 29-year-old offender was convicted of sexual assault after having anal intercourse with a 13 year old girl. He was declared a long-term offender and sentenced to 14 years’ imprisonment followed by a 10-year LTSO. • In R. v. S.S. , 2019 ONSC 3269 , the offender was convicted of sexual assault and sexual interference on his ten-year-old niece. He was declared a long-term offender and sentenced to ten years imprisonment followed by a 10-year LTSO. • In R. v.

Skookum , 2018 YKCA 2 , the 25-year-old offender was convicted of sexual assault following intercourse with a 17-year-old victim who had blacked out. On appeal, he was declared a long-term offender and sentenced to six years imprisonment followed by a 10-year LTSO. Remand Credit [ 45 ] W.D. has been in custody since 2 May 2016, a total of 4 years, 67 days, as of today’s date. He was on consent remand from 2 May 2016 until 10 April 2017. He has been awaiting sentencing since that date. [ 46 ] Sections 719(3) and 719(3.1) of the Criminal Code provide for the imposition of remand credit as part of a sentence.

If “circumstances justify it”, a maximum of 1.5 days may be credited for each day in custody. [ 47 ] In R. v. Summers , 2014 SCC 26 , Karakatsanis , J. observed the longstanding practice of giving enhanced credit, as life on remand differs quantitatively and qualitatively from life in prison following sentencing. Quantitatively, days served do not count towards parole, earned remission, or statutory release. Qualitatively, inmates are not eligible to participate in certain rehabilitation programs. Notably, in this case, W.D. could not avail of high intensity sex offender programming. [ 48 ] That said, in R. v.

Cote , 2015 SKCA 52 the Court declined to vary a remand credit of 1:1 for the offenders pre-sentence custody: 81. There is nothing novel about courts expressly limiting pre-trial remand credit in the context of long-term offender sentencing to ensure adequate treatment can be achieved while incarcerated. This Court said as much in R. v. D. (E.E.) , 2007 SKCA 99 (Sask. C.A.) at para 74 , (2007), 304 Sask. R. 192 (Sask. C.A.) [ E.E.D. ]: Even though it is common to give double credit in sentencing for time spent on remand, there clearly is no absolute rule to this effect.

The discretion accorded to the trial judge is particularly important in a context like the one before us, in which the trial judge must consider what period of incarceration is required, where certain programming will be available, so that, coupled with a period of community supervision, the risk to the community posed by a long-term offender can be controlled. 82. Even though D. (E.E.) was decided pre- Summers , it is still, in my view, a correct statement of the law. D. (E.E.) is in line with the comments in para. 79 of Summers , that all relevant circumstances must be considered when determining remand credit.

A very relevant circumstance would include consideration of how long Mr. Cote would have to remain in custody to provide for treatment programs in order to adequately protect the public once he is released. [ 49 ] Cote was quoted with approval by the British Court of Appeal in R. v. Hopley , 2015 BCCA 499 (at para. 58 ). [ 50 ] Considering all of the relevant circumstances, I am not satisfied that W.D. should receive an enhanced credit while awaiting sentencing. While he has been disadvantaged qualitatively in his inability to receive counselling, he is an unlikely candidate for early parole.

Further, as in the case of Cote , the time now required for W.D. to receive sex offender programming is a relevant consideration. disposition Long Term Offender Designation [ 51 ] W.D. is declared to be a long term offender and shall be subject to a LTSO for ten years following the completion of his sentence for the predicate offences.

The Predicate Offences [ 52 ] Taking the principles of sentencing under

Part XXIII of the Criminal Code into consideration, together with the protection of the public mandated by

Part XXIV of the Criminal Code , and after giving credit for time served, a federal sentence of two years and one day is appropriate for the sexual assault contrary to

section 271 of the Criminal Code . The same sentence is imposed for sexual interference contrary to

section 151 , of the Criminal Code to run concurrently. For the breach of

section 137 of the YCJA , I impose a sentence of one month, also to run concurrently. [ 53 ] Taking W.D.’s pre-sentence custody into account on a 1:1 ratio would leave him with an overall period of incarceration of just in excess of six years. I am satisfied that this is in keeping with the principles of sentencing as outlined in Spilman , the guidance offered recently by the Supreme Court of Canada in Friesen , and judicial precedent for cases involving long term offenders. [ 54 ] Both Dr. Gill and Dr. Bloom recommend that W.D. remain in custody and avail of sex offender programming as offered by CSC.

Both recommend, as well, that W.D. attend some form of sex-offender programming indefinitely. [ 55 ] A further period of incarceration of two years plus a day will afford W.D. the opportunity to avail of sex offender programming while serving the determinate portion of his sentence. His success in completing this programming will inform the CSC in their recommendation to the Board regarding the conditions of his LTSO. The programming is thus for both the benefit of W.D. in his future integration into society and serves the protection of the public as mandated by

Part XXIV of the Criminal Code . [ 56 ] By providing W.D. with an additional custodial sentence to complete intensive sex offender programming, and any other programming offered by CSC, (as recommended by Dr. Gill and Dr. Bloom), and a ten year LTSO, sufficient structures can be put in place to manage his risk in the community. [ 57 ] W.D. addressed the Court during his sentencing hearing. He expressed remorse over the hurt caused to his victims and expressed the desire to receive the treatment he needs to once again become a productive member of society.

While he has availed of all programming available during his pre-sentence incarceration, specific sex offender programming is reserved for those once sentenced. The determinate sentence of two years plus one day will serve to place W.D. on the path to recovery, through ensuring that he is in a position to receive the programming that he needs and wants. Should he earn parole following completion of this programming, CSC will be in a position to impose conditions comparable to those of his LTSO upon warrant expiry.

I am satisfied that the combined effect of programming and the LTSO offers W.D. the best prospects of success, while at the same time serving to protect the community. He is still a young man, and will be a young man, hopefully with a productive future, upon his release.

Section 161 of the Criminal Code [ 58 ] The Crown has requested an Order under

section 161 of the Criminal Code for 20 years with conditions that W.D. be prohibited from:

a) Attending a public park, or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care center, school ground, playground, or community centre;

b) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years;

c) Having any contact – including communicating by any means – with a person who is under the age of 16 years;

d) Using the internet or any digital network unless it is done under conditions set by the court. Proposed conditions might include: for the purposes of employment at the site of employment only, at government offices, at school, etc. [ 59 ] For ten of these years W.D. will also be subject to a LTSO, based on CSC’s assessment of the need to protect the public and reintegrate W.D. into society. The LTSO may, or may not, contain those conditions now sought by the Crown as part of a

section 161 Order. The conditions of the LTSO will, however, be based on CSC’s assessment following the completion of W.D.’s determinate sentence and the completion of any programming while incarcerated. Under that circumstance, I am satisfied that the “safety net” provided by the LTSO is a sufficient guarantee of the protection of the public, such that the

section 161 Order sought by the Crown is not necessary. Nor do I accept that extending such an Order for an additional ten years beyond the expiry of the LTSO is warranted. W.D. was incarcerated at the age of 18. Following completion of his determinate sentence and the LTSO he will be 34 years old. Should W.D. comply with the conditions of his LTSO, I am satisfied that protection of the public will be maintained without the necessity of a further extension of conditions for ten years under

section 161. DNA Order [ 60 ] There will be the mandatory Order pursuant to s. 487.051 of the Criminal Code authorizing the taking of a number of samples of bodily substances from W.D. for the purpose of forensic DNA analysis. Sex Offender Registry [ 61 ] There will be an Order pursuant to s. 490.012(1) of the Criminal Code requiring W.D. to comply with the Sex Offender Information Registry Act , S.C. 2004, c. 10 for 20 years.

Firearms Order [ 62 ] Finally, there will be an Order under s. 109 of the Criminal Code prohibiting W.D. from having any firearms, crossbow, prohibited weapons, restricted weapons, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years after his release from imprisonment. _____________________________ Donald H. Burrage Justice