R. v. Davidson Date:, 2015 BCPC 335

Citation: R. v. Davidson Date: 20151201 2015 BCPC 0335 File No: 210770-4-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. DAWSON DAVIDSON CORRIGENDUM RULING ON DANGEROUS OFFENDER APPLICATION OF THE HONOURABLE JUDGE G. RIDEOUT BAN ON PUBLICATION s. 486.4(2) CCC Counsel for the Crown: E. Poll and B. McCabe Counsel for the Defendant: R.S. Fowler, QC and K. Blok Place of Hearing: Vancouver , B.C. Dates of Hearing: Oct. 30, Nov. 29, 2012;

April 9, 11, 16, 29, 30, May 3, 7, 15, 16, Nov. 13, 2013; May 21, 22, 23, 26, 27, 28, 29, June 3, 4, 6, Nov. 6, 7, 12, 13, 14, 24, Dec. 1, 2014; Jan. 20, June 4, 11, July 3, 9, 13, 14, 2015 Date of Judgment: December 1, 2015 A Corrigendum was released by the Court on December 15, 2015. The corrections have been made to the text and the Corrigendum is appended to this document. A second Corrigendum was released by the Court on February 9, 2016. The correction has been made to the text and the Corrigendum is appended to this document. TABLE OF CONTENTS A. INTRODUCTION 6 B. LEGAL FRAMEWORK 6 I. Statutory Provisions 6 II. General Principles 9 III. Dangerous Offender Designation 11 (

i) Onus 11 (ii) Application of s. 753(1)(a)(

i) of the Code 11 (iii) Application of s. 753(1)(

b) of the Code 14 (iv) Treatability at the Designation Stage 15 IV. Dangerous Offender Sentencing 15 (

i) Onus 16 (ii) Opinion Evidence 18 (iii) Meaning of “a Reasonable Expectation” in s. 753(4.1) 19 (iv) Treatability - Meaning of “a Lesser Measure will Adequately Protect the Public” in s. 753(4.1) 19 (

v) Long-Term Supervision Order 23 C. CIRCUMSTANCES OF DAVIDSON’S OFFENCES 24 I. The Predicate Offence 24 II. Prior Criminal History 27 (

i) Criminal Record of Davidson 27 (ii) Circumstances of the Toronto Offences 28 (

a) Forcible Confinement of LY 28

(

b) Robbery of LT 29 (

c) Aggravated Sexual Assault of MC 30 (

d) Aggravated Sexual Assault of LY 32 (

e) Sexual Assault with a Weapon of KS 33 (iii) Aggravated Assault of SA in Vancouver 35 (iv) Allegations Resulting in a Stay of Proceedings or Otherwise Not Pursued 37 D. DESIGNATION STAGE ANALYSIS 39 I. Section 753(1)(a)(

i) of the Code 39 (

i) Pattern of Repetitive Behaviour 39 (ii) Does the Predicate Offence Form a Part of the Pattern? 41 (iii) Does the Pattern Establish a Failure by Davidson to Restrain His Behaviour in the Past? 42 (iv) Does the Pattern Show a Likelihood of Death, Injury or Severe Psychological Damage to Other Persons through a Failure to Restrain Behaviour in the Future? 46 ll. Section 753(1)(

b) of the Code 48 (

i) Serious Personal Injury Offence 48 (ii) Has Davidson, by His Conduct in Any Sexual Matter, Shown a Failure to Control his Sexual Impulses? 48 (iii) By his Past Conduct, Has Davidson Shown a Likelihood of Failure in the Future to Control His Sexual Impulses? 50 (iv) A Failure by Davidson in the Future to Control His Sexual Impulses Will Cause Injury, Pain or Other Evil to Others? 52 III. Designation Disposition 53 E. SENTENCE STAGE ANALYSIS 53 I. Position of the Parties on s. 753(4.1) 54 (

i) Davidson’s Position 54 (ii) Crown’s Position 55 II. Davidson’s Treatability and Risk Management 57 (

i) Weight Placed on Opinion Evidence 58 (

a) Dr. Bradford’s and Dr. Semrau’s Qualifications and Practice 59 (

b) Weight to Attach to Personal Interview with Davidson 61 (ii) Opinion Evidence on Davidson’s Treatability 62 (

a) Diagnostic Evidence 62 (

b) Risk Assessment 64 (

c) Treatability and Treatment Plan 66 (iii) Other Relevant Factors Affecting Davidson’s Treatability 70 (

a) Motivation for Personal Change and Willingness to Accept Treatment 70 (

b) Stable Personal Circumstances 71

(

c) The Burnout Factor 74 (

d) Enhanced Self-Control through Treatment 75 (

e) Remorse and Minimization 75 (

f) Past Attitude towards Treatment and Supervision 76 (

g) Substance Abuse 86 (

h) Family Support 87 (iv) Availability of Treatment and Supervision Programs 88 (

a) Availability of Pharmacological and Psychological Treatment 88 (

b) Sex Offender Programs Currently Available through CSC 90 (

c) Availability of Supervision Options 92 III. Sentence Disposition 95 (

i) Davidson’s Treatability - More Than an Expression of Hope 95 (ii) Treatment Timeline 97 (iii) Conditional Release Plan 98 (iv) Sentence Calculation 99 (

v) LTSO Recommendations 102 (

a) General Terms 102 (

b) Treatment Conditions 103 (vi) Ancillary Orders 104 TABLE OF AUTHORITIES Statutes Considered Criminal Code , R.S.C. 1985, c. C-46 ss. 718-718.2 s. 752 s. 753(1)(a) s. 753(1)(b) s. 753(4) s. 753(4.1) s. 753(5) s. 753.1 Corrections and Conditional Release Act s. 134

s. 134.1 Cases Considered R v Bakker 1999 BCCA 84 R v Boutilier 2014 BCSC 2187 R v Bruneau 2009 BCSC 1089 R v Cornell 2014 YKSC 54 R v Cote 2015 SKCA 52 R v Currie (SCC), [1997] 2 SCR 260 R v Davidson (22 December 1986), (ONCJ) R v Davidson (4 August 4 2000), (BCPC) R v Davidson 2010 BCPC 228 R v DJS 2015 BCCA 111 R v Dorfer 2013 BCCA 223 R v Dow 1999 BCCA 177 R v GL 2007 ONCA 548 R v Hartling [2005] OJ No 545 R v Howse 2000 BCSC 1885 R v Ipeelee 2012 SCC 13 R v Jesse 2013 BCCA 456 R v Jones (SCC), [1994] 2 SCR 229 R v Johnson 2003 SCC 46 R v Kim 2000 BCSC 1506 R v Lyons (SCC), [1987] 2 SCR 309 R v McCallum (ON CA), [2005] OJ No 1178 R v Natomagan 2012 SKCA 46 R v Neve 1999 ABCA 206 R v Norman 2015 ONSC 2735 R v RB 2001 ONCA 328 R v R(JW) 2010 BCCA 66 R v Pike 2010 BCCA 401 R v Sawyer 2015 ONCA 602 R v Sipo 2014 SCC 47 R v Summers 2014 SCC 26 R v Szostok 2014 ONCA 15 R v Taylor 2012 ONSC 1025 , [2012] OJ No 1564 R v Trevor 2010 BCCA 331 R v Walsh 2011 BCSC 1911

R v Wormell 2005 BCCA 328 A. INTRODUCTION [1] On September 17, 2010, I found Dawson Davidson (“Davidson”) guilty of sexual assault (“the predicate offence”).

Thedecision can be found at 2010 BCPC 228 , 2010 BCPC 0228 . [2] Based on the predicate offence and Davidson’s previous criminal history, the Crown seeks to have him declared a dangerousoffender on the basis that he constitutes a threat to the life, safety, physical or mental well-being of other persons as described in thedangerous offender provisions of the Criminal Code of Canada (“the Code”). [3] The Crown further contends that there is no reasonable possibility of eventual control of Davidson’s risk in the community, andas such this Court should decline to exercise its residual discretion to impose a determinate sentence.

B. LEGAL FRAMEWORK I. Statutory Provisions [4] The Supreme Court of Canada (“SCC”) has confirmed that when interpreting the dangerous offender provisions, a court mustbe guided by the fundamental purpose and principles of sentencing contained in ss. 718-718.2 of the Code: R. v. Johnson, 2003 SCC 46,at para. 23. The relevant sections read as follows: Purpose 718.

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or any other similar factor, … shall be deemed to be aggravatingcircumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [5] The provisions dealing with dangerous and long-term offenders are set out in

Part XXIV of the Code. The sections relevant tothe designation of a dangerous offender are as follows: 752. In this Part, “serious personal injury offence” means (

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

section 271 (sexual assault), … … 753.

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find theoffender to be a dangerous offender if it is satisfied

(

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

a) of 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 by the offender, of which the offence for which he or she has been convicted forms a part, showing afailure 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, … (

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 other persons through failure in the future to control his or her sexual impulses. 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 re-offend; and (

c) there is a reasonable possibility of eventual control of the risk in the community.

(2) The court shall be satisfied that there is a substantial risk that the offender will re-offend if … (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows alikelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (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. … [6] The sections relevant to the sentencing of a dangerous offender are as follows: 753

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment ofimprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted. 753

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

b) or (c)will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. II. General Principles [7] The SCC has confirmed that dangerous offender proceedings form part of the sentencing process: R. v. Jones, (SCC), [1994] 2 S.C.R. 229 at pp. 279-280.

The SCC has also confirmed that when interpreting the dangerous offender provisions, acourt must be guided by the fundamental purpose and principles of sentencing contained in ss. 718-718.2 of the Code: Johnson, at para.23. [8] At their root, the dangerous offender provisions are examples of preventative sanctions. The protection of the public mustultimately be at the forefront of a court’s decision to declare or not declare an offender as a dangerous offender: R. v. Sipo, 2014 SCC 47;R. v.

Cote, 2015 SKCA 52. [9] Pursuant to s. 753(1) of the Code, if a court is satisfied that the dangerous offender criteria have been established, the court“shall find the offender to be a dangerous offender”. The

section does not confer discretion on a court not to find the offender dangerouseven though the offender may have come within the long-term offender criteria: R. v. Szostok, 2014 ONCA 15, at para. 52. [10] In Szostok, at para. 54, the Court of Appeal further held that the dangerous offender provisions must be interpreted in the spirit

of the SCC decision in R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309 (where the SCC held that the dangerous offenderprovisions targeted a very small group of offenders), and bearing in mind the sentencing principles and objectives contained in ss.718-718.2. [11] However, ss. 753(4) and (4.1) of the Code favour the exercise of a court’s discretion to impose an indeterminate sentence whena court declares that an offender is a dangerous offender, unless the court is satisfied that there is a reasonable expectation that adeterminate sentence for the offence plus a long-term supervision order (“LTSO”) or a determinate sentence for the offence alone willadequately protect the public. [12] Pursuant to s. 753(5) of the Code, if a court does not find an offender to be a dangerous offender, then the court may treat theapplication as an application to find the offender to be a long-term offender.

III. Dangerous Offender Designation (

i) Onus [13] The onus rests with the Crown to prove beyond a reasonable doubt all of the elements necessary to establish that an offender is adangerous offender pursuant to s. 753 of the Code. [14] If the Crown fails to prove beyond a reasonable doubt the necessary elements contained in s. 753 of the Code, then an offendercannot be declared a dangerous offender.

At that point, the court may treat the application as either an application to find the offender tobe a long-term offender and impose a sentence in accordance with those provisions or the court may impose a determinate sentence forthe offence for which the offender has been convicted of the predicate offence. [15] If the evidence presented at a dangerous offender proceeding establishes beyond a reasonable doubt the requirements fordangerous offender status, the court shall find the offender to be a dangerous offender. (ii) Application of s. 753(1)(a)(

i) of the Code [16] A dangerous offender designation must be imposed under s. 753(1)(a)(i), if there is a pattern of repetitive behaviour by theoffender demonstrating his failure to restrain his behaviour coupled with a likelihood of causing death or injury to other persons, orinflicting severe psychological damage on other persons, through the offender’s failure to restrain future behaviour. [17] The meaning of “a pattern of repetitive behaviour” is not defined in the Code. In R. v.

Neve, 1999 ABCA 206, the Court ofAppeal, at para. 107, established the criteria required to prove “a pattern of repetitive behaviour”: 107 What does it take for the Crown to prove the required patterns of behaviour under ss. 753(a)(

i) and (ii)? While"pattern is not definedin the Code, what is defined in each of ss. 753(a)(

i) and (ii) are the various components instrumental in creating the pattern. If the Crownfails to prove one or more of the required elements, then the proscribed pattern has not been made out. Under s. 753(a)(i), the elementsare the following: 1. A pattern of repetitive behaviour; 2. The predicate offence must form part of that pattern; 3. That pattern must show a failure by the offender to restrain his or her behaviour in the past; and 4.

That pattern must show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain hisor her behaviour in the future. [18] Depending on the facts in a particular case, a pattern of repetitive behaviour sufficient to form the basis for finding a likelihoodof causing harm to others in the future may be found on very few incidents; however, to establish the criteria of a pattern, the fewer theincidents, the more similar they must be: Neve, at para. 113 applied R. v.

Dorfer, 2013 BCCA 223. [19] Additionally, the significance and relevance of common elements of a pattern must be assessed to determine the presence of arelevant pattern. This was discussed in R. v. Dow, 1999 BCCA 177, at para. 24: 24 In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to showfirst, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injuryto other persons arising from that failure.

If any of those three elements is missing, then there may be a pattern but it will not be arelevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed. [20] It is not necessary for all parts of the predicate offence to be like all parts of an offender’s earlier offences, though furthersimilarities may add “vividness to the pattern”: Dow at para. 27. [21] In Dow, Lambert JA commented, at para. 29, that it is for the sentencing court to determine the key elements of the pattern: 29 I should add that I do not think it was up to Dr.

Semrau, the Crown psychiatrist, to identify the relevant aspects of the pattern. Nodoubt psychiatric evidence is helpful in relation to pattern and very important in relation to predicting the likelihood of future behaviour,but it is for the sentencing judge to determine the key elements of the pattern, not the psychiatrists called by the Crown or the defence. [22] The Crown also needs to establish the “likelihood” that an offender will cause future harm.

The Crown is not required to provethat an offender will re-offend; rather, the Crown must establish beyond a reasonable doubt that there is a likelihood that the offenderwill inflict harm in the future: R. v. Currie, (SCC), [1997] 2 S.C.R. 260, at para. 42.

[23] To establish the likelihood that the offender’s future behaviour will inflict harm, a court is required to assess the quality andstrength of all of the evidence presented at a dangerous offender hearing: Lyons, at para. 94. [24] “Likelihood” means more than a simple possibility. At the very least, it means more probable than not: Neve, at para. 114. (iii) Application of s. 753(1)(

b) of the Code [25]

Section 753(

b) aims specifically at sex offenders: R. v. Bakker, 1999 BCCA 84, at para. 23. [26] In order to succeed under this branch, the Crown must first establish that the predicate offence is a serious personal injuryoffence as defined by s. 752(

b) of the Code. For example, pursuant to s. 752(

b) of the Code, a conviction for sexual assault is deemed tobe a serious personal injury offence. Second, the Crown must prove that based on the offender’s past conduct in any sexual matter, hehas shown a failure to control his sexual impulses. Third, the Crown must establish that based on the offender’s past conduct in anysexual matter, he has shown a likelihood of failure in the future to control his sexual impulses.

Lastly, the Crown must establish that afailure in the future to control his sexual impulses will likely cause injury, pain, or other evil to other persons. [27] To establish a failure to control sexual impulses, a court should consider the circumstances surrounding the predicate offenceand prior offences. [28] The circumstances surrounding the predicate offence need not be objectively serious or more objectively serious than prioroffences. Once a court enters a conviction for a “serious personal injury offence”, this triggers the s. 753(

b) analysis: Currie, at paras. 25and 26. [29] The predicate offence does not define an offender’s present condition. Rather, it is a circumstance that must be taken intoaccount along with his conduct in “any sexual matter to determine if he presents a future danger to society”: Currie, at para. 26. [30] The conduct to be considered in determining whether the Crown has proven beyond a reasonable doubt that an offender poses afuture danger to society is conduct in “any sexual matter”. Offences that are not “sexual” cannot be considered in assessing whether theCrown has proven the criteria under s. 753(1)(

b) of the Code. [31] The determination as to whether there is a likelihood that an offender will commit future harm through a failure to controlsexual impulses must be made with reference to his “present condition according to past behaviour and patterns of conduct”: Currie, atpara. 26. (iv) Treatability at the Designation Stage [32] The risk assessment at the designation stage is to be undertaken without a consideration of the possibility of an offender’streatment prospects: R. v. Boutilier, 2014 BCSC 2187, at para. 53. IV.

Dangerous Offender Sentencing [33] Sections 753(4) and (4.1) provide the framework for the application of judicial discretion in sentencing an offender under PartXXIV of the Code. [34] Once a court imposes a dangerous offender designation, the court has three sentencing options available under s. 753(4): 1)impose a sentence of detention in a penitentiary for an indeterminate period; 2) impose a sentence for the offence for which the offenderhas been convicted … and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or 3)impose a sentence for the offence for which the offender has been convicted. [35] The sentence imposed cannot exceed what is necessary to achieve the public protection objective.

When deciding between thethree sentencing options, a trial court is required to predict whether it is in a position to fix the length of an offender’s sentence orwhether it would be too dangerous to public safety to do so and leave the issue of eventual release to corrections and parole officials. (

i) Onus [36] In R. v. Wormell, 2005 BCCA 328 , at paras. 32 through 34, Southin JA discussed the meaning of “satisfied” and theburden of proof as it related to the pre-2008 dangerous offender amendments: 32 The task of the Court from beginning to end is to ask itself, "Am I satisfied that there is a reasonable possibility of eventual control ofthe risk in the community?" If the judge concludes that he or she is not so satisfied then the judge cannot designate the offender a long-term offender. 33 In my opinion, it is not right to approach this with burden of proof at the back of one's mind.

Burden of proof, whether it is proofbeyond a reasonable doubt or on a balance of probabilities, directs itself to determining past events. 34 While on a dangerous offender application the Crown must prove beyond a reasonable doubt past conduct of the accused which itsays is relevant, there can be no burden of proof in the classic sense in the assessment of the future. [37] In concurring reasons, Ryan JA also discussed the meaning of “satisfied” and held that proof beyond a reasonable doubt was notrequired, at para. 61: 61 Thus if the Crown proves that the offender meets the statutory criteria of a dangerous offender, then, before making the designation,the sentencing judge must turn to the criteria in s. 753.1(1)(

c) which requires only that the court be satisfied that there is a reasonablepossibility of eventual control of the risk in the community. Nowhere in the Johnson decision do the Supreme Court justices state that theCrown must prove beyond a reasonable doubt that there is no reasonable possibility that the offender will eventually be manageable in

the community. In my view they do not say that because it would be inconsistent with their reasoning. [38] In R. v. Walsh, 2011 BCSC 1911, at paras. 285 and 291, Arnold-Bailey J found the comments of Southin JA and Ryan JAinstructive with respect to the post-2008 dangerous offender amendments in interpreting s. 753(4.1): 285 I find the comments of Southin JA and Ryan JA apposite to this determination.

Therefore, the determination under s. 753(4.1)requires the court to be "satisfied," in the sense discussed above, that there is a reasonable expectation that a lesser measure willadequately protect the public from the risk that Mr.

Walsh will commit murder or a serious personal injury offence, but does not place aburden on the Crown of proof of this element beyond a reasonable doubt. … 291 What I draw from the above authorities as to the meaning of the phrase "reasonable expectation that a lesser measure ... willadequately protect the public" in s. 753(4.1) is that it amounts to "a confident belief, for good and sufficient reasons" to be derived fromthe quality and cogency of the evidence heard on the application.

Unless a judge is so satisfied by the evidence "that a lesser measure ...will adequately protect the public against the commission by the offender of murder or serious personal injury offence" he or she isrequired by the subsection to impose an indeterminate sentence upon an offender found to be a dangerous offender. [39] Voith J in Boutilier, at paras. 127-129, confirmed that the pre-2008 dangerous offender regime in relation to onus had remainedthe same under the current regime. (ii) Opinion Evidence [40] The opinions of psychiatrists and psychologists concerning treatability and risk to reoffend play a significant role in dangerousoffender proceedings.

In R. v. Pike, 2010 BCCA 401, at paras. 61 and 63, the Court of Appeal described the role of psychiatric evidenceas “vital”: [61] Psychiatric evidence plays a vital role in dangerous offender proceedings, furnishing the sentencing judge with an expert opinion onthe

interpretation of past conduct and the likely future conduct of the offender based on his or her past behaviour: Neve, at para. 182. … 63 It remains, however, the undivided responsibility of the sentencing judge to make all requisite findings of fact, including thoseregarding the alleged conduct upon which a psychiatrist bases his or her opinion. A psychiatric opinion is not evidence of the facts uponwhich it is based.

If the court is not independently satisfied as to the truth of those facts on the basis of evidence presented at the hearing,then the value of the ultimate opinion is correspondingly diminished: R. v. Knight (1975), (ON SC), 27 C.C.C. (2d)343 at 354, 356 (Ont. H.C.J).

As explained by the Supreme Court of Canada in Wilband: The value of a psychiatrist's opinion may be affected to the extent to which it may rest on second-hand source material; but that goes tothe weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information butevidence of the opinion formed on the basis of that information. [Emphasis added.] [41] At para. 64 of Pike, the Court of Appeal listed the following non-exhaustive factors to be considered in assessing the weight tobe given to psychiatric evidence: 64 In Neve, the Alberta Court of Appeal listed the following non-exhaustive list of considerations to assess the value of psychiatricevidence (at para. 189): 1. the qualifications and practice of the psychiatrist; 2. the opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoingtreatment, and involvement with the institution in which the person is a patient or prisoner; 3. the unique features of the doctor-patient relationship, such as hostility or fear by the patient (or the psychiatrist) arising from thepersonalities, the circumstances of the contact, and the role of the psychiatrist; 4. specifically and precisely what documents the psychiatrist had available and reviewed, for example, from earlier court proceedings,institutional records, other medical consultations, or treatment; 5. the nature and scope of consultations (this could include: personal contact with third parties, information from other health careprofessionals, prison authorities, police, lawyers, family); 6. specifically and precisely what the psychiatrist relies on in coming to an opinion; and 7. the strengths and weaknesses of the information and material that is relied on. [Emphasis added.] (iii) Meaning of “a Reasonable Expectation” in s. 753(4.1) [42] An “expectation” speaks to a belief that something will happen, as opposed to the mere possibility that something will happen: R. v.

D.J.S., 2015 BCCA 111, at para. 30, (leave to appeal refused: 2015 SCC No. 36444). [43] A “reasonable expectation is a confident belief, for good and sufficient reasons to be derived from the quality and cogency ofthe evidence heard on the application”: Walsh, at para. 291.

(iv) Treatability - Meaning of “a Lesser Measure will Adequately Protect the Public” in s. 753(4.1) [44] Prior to the 2008 dangerous offender amendments, the SCC in Johnson provided guidance with respect to this phrase at para.32. Wilson J. in R. v. Taylor, 2012 ONSC 1025 , [2012] O.J. No. 1564, at para. 348, adopted the Johnson tests with respect tothe current dangerous offender regime: 348 I adopt the test in Johnson.

I must be satisfied that there is a reasonable expectation defined as a confident belief for good andsufficient reason based upon the evidence that a penitentiary sentence followed by a 10 year supervision order will “reduce the threat tolife, safety or physical or mental well-being of other persons to an acceptable level”. [Emphasis added.] [45] In order to achieve the goal of protection of the public, case law has held that there must be evidence of treatability that is“more than an expression of hope”. In R. v. McCallum, (ON CA), [2005] O.J.

No. 1178, at para. 47, the OntarioCourt of Appeal identified the nature of the evidence that was required in order to achieve the goal of the protection of the public underthe dangerous offender and long-term offender provisions: 47 Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and theamended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-termoffender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specificoffender can be treated within a definite period of time: R. v.

Poutsoungas (1989), (ON CA), 49 C.C.C. (3d) 388 (Ont.C.A.); R. v. Higginbottom (2001), (ON CA), 156 C.C.C. (3d) 178 (Ont C.A.). In R. v. M.(J.S.) (2003), 2003 BCCA66 , 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s.753.1(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. The courtalso noted that the French version of the

section requires “une possibilité réelle”, or a "real possibility", which may require an evenhigher degree of certainty in the evidence than the English version, a "reasonable possibility". [Emphasis added.] [46] Specifically, a court must be satisfied that 1) the evidence of treatability is more than an expression of hope; 2) the evidencemust indicate that the offender can be treated within a definite period of time; and 3) the evidence of treatability must be specific to theoffender. [47] Evidence concerning the availability of treatment and supervision programs is relevant to assessing the treatability of adangerous offender.

To be satisfied that an offender’s risk can be adequately managed in the community, there must be evidence that theproposed treatment options and supervision options are reasonable and presently available: R. v. G.L., 2007 ONCA 548, at paras. 58-63. [48] In relation to the supervision component, there must also be evidence that there are supervision resources available tocomplement the treatment component. To be effective, the availability of those resources cannot be uncertain: R. v.

Trevor, 2010BCCA 331, at para. 35. [49] Additional evidence relevant to assessing an offender’s risk to reoffend can be characterized as internal factors (those that areinnate to and could be controlled by the offender) and situational factors (those that are external to and could not be controlled by theoffender). [50] Internal factors may include: 1.

Motivation: whether a dangerous offender is interested in personal change and is motivated to attempt to engage in correctionaltreatment - the fact that an offender is not committed to his treatment is an indication of future risk: D.J.S., at para. 26; Boutilier, at para.163; R. v. Kim, 2000 BCSC 1506, at para. 71; R. v. R. B., 2001 ONCA 328, at para. 14. 2.

Lack of insight/attitude/remorse/acceptance of responsibilities: an offender’s failure to accept responsibility for his offences and alack of remorse are relevant to the offender’s present and future dangerousness and to his prospects of treatment: Boutilier, at para. 185;Kim, at para. 73. 3. Lack of confidence: a lack of confidence increases the likelihood that the offender will either quit or give up on his efforts to changehis behaviour: Boutilier, at para. 170. 4. Age “burn-out”: increasing age correlates to physical health deterioration and sex drive reduction.

The burn-out factor has beenaccepted as a factor relevant to the offender’s possibility of future re-offences. However, in Boutilier, at para. 171, Voith J. noted that theburn-out factor has little relevance where the opinion evidence suggests that it does not apply to the particular type of offence or medicalillness at issue, e.g. pedophilia and psychopathic traits.

In addition, the burn-out factor has diminished value when there is no evidencelinking the particular offender with the general theory and when the offender shows a pattern of increasing severity of offences orcontinued severe offences at an older age: R. v. Jesse, 2013 BCCA 456; R. v. Howse, 2000 BCSC 1885, at para. 52; R. v. Bruneau, 2009BCSC 1089, at para. 195. 5. Underlying deviant sexual interests: D.J.S., at para. 11. 6. The offender’s attitude that predisposes him to offending: a. Recklessness or impulsivity: an indicator of future risk: Boutilier, at para. 161. b.

Using sex to cope with negative emotions: D.J.S., at para. 9. c. Negative attitudes towards women: D.J.S., at para. 9.

7. Intimacy deficits: D.J.S. , at para. 9 . 8. Past offenses while on community supervision: R. v. Natomagan , 2012 SKCA 46 at para. 41 . 9. Poor attitude towards intervention: D.J.S. , at para. 9 . 10. Problems with supervision: Boutilier , at para. 173 . 11. Willingness to participate in psychological and/or pharmacological treatment: Medication: R. v. Sawyer , 2015 ONCA 602 , at para. 41 . [ 51 ] Situational factors may include: 1. Being in a position of authority or power over a vulnerable female (child, youth, or intoxicated female): D.J.S. , at para. 36 . 2.

Being alone with a female: D.J.S. , at para 9 . 3. Substance abuse: D.J.S. , at para. 12 . 4. Anti-social peers or pro-social support: Boutilier , at para. 175 . [ 52 ] In addition, a court should also consider the limits as to how closely a dangerous offender can be supervised while in the community. [ 53 ] In Hartling , [2005] OJ No. 545, at para. 52 , the Court considered the offender’s history of non-compliance with medication, his abrupt disappearances, his unwavering dependence on alcohol and drugs, and his inability to settle down to any one place and lifestyle.

The Court concluded that “[i]t would place such a tremendous reliance on the closeness of the supervision, the frequency required of urine or blood screening and the immediacy required in obtaining the results, that it defies reality in the community. So closely would his life have to be monitored, supervised and scrutinized, the concept effectively merges with confinement or imprisonment”. (

v) Long-Term Supervision Order [ 54 ] The SCC has stated that the purpose of LTSOs is twofold: 1) to protect the public, and 2) to rehabilitate and reintegrate offenders into the community. Further, the intention behind the legislative regime was to create a mechanism, which would be “speedy and flexible” and which would not result in lengthy re-incarceration of offenders in the absence of a new crime being committed: R. v. Ipeelee , 2012 SCC 13 at paras. 45 , 47, 50 and 54. [ 55 ] The supervision period in an LTSO is not intended to be penal, but rather to accomplish the goal of preventing future crimes: R. v.

R.(J.W.) , 2010 BCCA 66 , at para. 43 . [ 56 ] By operation of ss. 134 and 134.1 of the Corrections and Conditional Release Act (“ CCRA ”), an offender is subject to conditions that are imposed by the National Parole Board (“NPB”), as well as being subject to instructions imposed by a Community Parole Officer (“CPO”). The NPB may set or cancel conditions. In other words, once an offender’s sentence has expired, he or she is essentially on parole. As such, “an order of this nature is a drastic interference with the liberty of the subject”: R. v.

Norman , 2015 ONSC 2735 , at para. 74 . [ 57 ] While the NPB will not impose a supervision condition requiring that an offender take a specific type of medication, the NPB can require an offender to follow psychiatric counselling, which may include a prescription of a specific type of medication: Sawyer , at para. 48 . [ 58 ] If the offender refuses to take prescribed medication, then the NPB can view that failure as a potential breach.

Under s. 135.1 of the CCRA, the NPB can then suspend the order, authorize the apprehension of the offender, and commit the offender to a community- based residential facility or to custody until the suspension is cancelled or new conditions have been imposed. The period of the commitment must not exceed 90 days: R. v. Cornell , 2014 YKSC 54 , at para. 71 . C. CIRCUMSTANCES OF DAVIDSON’S OFFENCES I. The Predicate Offence [ 59 ] Originally, Davidson was charged with three counts of sexual assault of three sex trade workers over a time frame from the winter of 2008 through June 2009.

Davidson was acquitted in relation to two of the sexual assault allegations. He was convicted of a single count of the sexual assault of D.B.. [ 60 ] D.B. worked the Kingsway corridor area near Clark Drive in the City of Vancouver. D.B. testified that she first met Davidson in August 2007. D.B. provided sexual services including both oral and vaginal sex for an arranged price of $40. [ 61 ] D.B. testified that during the sexual activities, Davidson would slap her face and ear area which caused her pain.

Davidson always apologized afterwards for his conduct and would often offer cigarettes to D.B., along with $40 for the sexual services. [ 62 ] In the middle of July 2009, D.B. was again working the Kingsway corridor area when she was picked up by Davidson. As was his practice, Davidson drove to a dark laneway and parked behind a garage. D.B. got into the back seat and at that time Davidson told D.B. that he wanted to choke her during sex. D.B. was unresponsive to his request. [ 63 ] At paras. 12 through 14 of my Reasons for Judgment, D.B.’s account of what took place was summarized as follows:

[12] Once they were both in the backseat, clothes were removed by both parties and D.B. performed oral sex on the accused. Shortly after that, vaginal sex commenced with the accused taking a position behind D.B. with his arms around her neck. It was at that point that the accused started to choke her, much like a wrestler using a wrestle choke hold. This activity went on for some time, and D.B. was fearful that she was going to lose consciousness. She went limp, faking that she had blacked out.

She testified that she was unable to say anything because the choke hold was so severe. [13] When her body went limp, the accused released his choke hold. She recalled that he apologized to her and they then changed positions with D.B. now on her back and the accused over top, again, engaged in vaginal sex. The accused then put his hands around her neck and squeezed her neck so hard that she was unable to breathe. Again, fearing the consequences, D.B. faked blacking out and the accused let go of her throat.

The accused apologised for his conduct and told D.B. that he was not going to hurt her. [14] The two then finished the date and the accused took D.B. back to her working area at Kingsway and Clark. He gave her money and cigarettes for the date. [ 64 ] D.B. testified that she saw Davidson several months later and they again drove to the customary location for sex. She told Davidson that she was not going to put up with anything physically abusive. Davidson agreed.

The “date” did not work out on this occasion as they were interrupted by another vehicle entering the laneway. [ 65 ] D.B. testified that she had a further date with Davidson.

They had consensual oral and vaginal sex and nothing untoward was done to her. [ 66 ] D.B. testified in cross-examination that Davidson had been a client of hers since August 2007 and that the two of them had established a good rapport. [ 67 ] D.B. further testified that she knew that spanking and slapping would be part of the sexual activity with Davidson and this routine was followed on every date with the exception of the choking incidents in July 2009. [ 68 ] Davidson did not testify at his trial. [ 69 ] At paras. 160 through 165 of this Court’s Reasons for Judgment, the following findings were made in relation to the credibility of D.B. and reliability of her evidence: [160] In relation to the evidence of D.B., I find that she was a credible and reliable witness.

If anything, she went out of her way to minimize her “bad date” experience as the accused had been a regular customer. Indeed, after her “bad date” with the accused there were at least two other dates that she had with the accused where nothing untoward occurred. Her evidence was focused and not affected by drugs. She was a good witness. [161] An important consideration in the law of assault is consent.

Generally for criminal liability to be proven, the Crown must establish that the complainant did not consent to the act and that the defendant knew that the complainant did not consent. [162] During the “bad date” with the accused, he was the one who told D.B. that he wanted to choke her during intercourse. The accused did not ask D.B. if she would consent to such an activity.

I find this activity went far beyond the implicit consent given by D.B. to the slapping activities that took place between the accused and D.B. on prior dates. [163] Though D.B. testified that the oral sex and intercourse were consensual, her reaction to the initial choking by faking unconsciousness clearly was not indicative of consent.

I further accept her evidence that the first choking incident was not momentary, but carried on for some period of time, causing fear to D.B. [164] I further find that this could not be a momentary lapse of judgement in the passion of the moment, as the second strangulation actions performed by the accused with his hand or hands circling D.B’s windpipe clearly establishes that the choking and strangulation actions were designed to sexually gratify the accused.

Again, the accused only released his stranglehold upon D.B. when she faked unconsciousness. [165] I also accept the evidence of D.B., both in direct and cross-examination, that after the two choking incidents, the accused apologized. This would clearly indicate that in the mind of the accused he was aware that he had crossed the line in relation to what was acceptable or not acceptable sexual conduct. It is noteworthy that when there was a subsequent date following the June “bad date”, D.B. told the accused that he was not to be “physically abusive”.

That strengthens her credibility on the issue of consent in relation to her “bad date” experience. II. Prior Criminal History (

i) Criminal Record of Davidson [ 70 ] Davidson’s criminal record was filed as an exhibit in this sentencing hearing. Following guilty pleas in Toronto, Ontario, on December 22, 1986, Davidson was sentenced to a total of eight years in prison for forcible confinement, aggravated sexual assault (two charges), robbery, and sexual assault with a weapon. [ 71 ] On August 4, 2000, in Vancouver, following a failed dangerous offender application, Davidson was sentenced to seven years in prison for aggravated assault. The sentence was varied on appeal to one year in custody (taking into account time served).

The Court of Appeal also imposed a three-year probationary period. [ 72 ] On March 1, 2004, Davidson was sentenced to a suspended sentence and probation for 18 months for a failure to comply with a probation order.

[ 73 ] On September 17, 2010, Davidson was convicted of the predicate offence. (ii) Circumstances of the Toronto Offences [ 74 ] The circumstances surrounding Davidson’s criminal behaviour in Toronto are drawn from the Crown’s argument, the sentencing decision of Humphrey J. in Ontario, and Cronin PCJ’s ruling relating to Davidson’s dangerous offender hearing following a finding of guilt for the 1996 aggravated assault in Vancouver. (

a) Forcible Confinement of L.Y. [ 75 ] On May 24, 1986, Davidson was looking for a woman to rob. At around 10:45 PM, after looking into an apartment window and concluding it was occupied by a single female, Davidson broke into L.Y.’s apartment. He was wearing a ski mask and carrying an imitation handgun. [ 76 ] Davidson confronted L.Y. and, while pointing the imitation handgun at her, demanded money. L.Y. gave Davidson her wallet. Davidson then took L.Y. into the bathroom and told her to bend over the bathtub. L.Y. complied.

Davidson then took L.Y.’s bankcard out from her wallet and demanded her personal identification number. L.Y. gave him a false number. Davidson told L.Y., “You had better be right because I know where you live and if it is not, you will regret it.” [ 77 ] Davidson then told L.Y. to lie on the floor. Davidson then used a scarf to tie her hands to her legs and used a second scarf to gag her mouth. He then used a third scarf to wipe her neck and shoulders. Davidson took $35 in cash and left L.Y.’s apartment. No funds were withdrawn by Davidson from L.Y.’s bank account. (

b) Robbery of L.T. [ 78 ] On June 10, 1986, Davidson was again looking for a woman to rob. To that end he was following various women. At about 9:15 PM, L.T. returned home from an evening out with her friends. As she was in the process of opening her front door, she was confronted by Davidson. He was wearing a ski mask and gloves, and holding an imitation handgun. [ 79 ] Davidson physically forced L.T. into a utility room of her apartment. L.T. was screaming and struggling. He tried to gag her with a piece of cloth but was unsuccessful.

He then told L.T. to “shut up” and banged her head against the ground of the utility room. L.T. then stopped screaming. [ 80 ] Davidson then pulled L.T.’s stockings down to her knees. When Davidson was in the process of taking off her panties, L.T. told him that she had a yeast infection. Davidson then rolled her over and attempted to tie her hands and legs with a piece of cloth. During this process, L.T. tried to kick him and bite him. In response, he put his hands around her neck and started to choke her.

L.T. then offered to give him some jewellery or write him a cheque. [ 81 ] Davidson then began to kiss L.T. on her lips and then stopped, telling her, “This isn’t working.” He then attempted to tie her up again, but was unsuccessful due to her struggling. He then grabbed her purse and began to rummage through it, asking her if she had a bankcard. She told him that she did not have a bankcard.

He then picked her up, put her in a large wooden garbage bin, and left. [ 82 ] As a result of this incident, L.T. suffered a large bruise and scrape to her forehead, a three-inch scrape on her nose, and bruising to her left shoulder, neck, and knees. $40 was also stolen from her wallet. [ 83 ] Davidson told Dr. Roy O’Shaughnessy and Dr. Joseph Noone during forensic psychiatric and psychological assessment interviews in 1989 that he became sexually aroused during the struggle with L.T.. (

c) Aggravated Sexual Assault of M.C. [ 84 ] On June 27, 1986, M.C. was driving her car into the underground parking lot of her apartment building. She saw a male, later identified as Davidson, wearing a mask and she became frightened. As she attempted to flee the area, Davidson pursued her, grabbing the handle of her car. M.C. lost control of her vehicle and crashed into a parking stall. [ 85 ] M.C. was unable to restart her car, so she locked her windows and doors. Davidson demanded that she open the window. She did not comply.

Davidson began to hit the window with a cast-iron pipe, but failed to smash the window. Davidson then took hold of a six-foot steel post and smashed the driver’s side window. MC was screaming throughout the entire incident. [ 86 ] After the window was smashed, M.C. exited the vehicle and started to run away. She was caught by Davidson who brought her back to the vehicle. He then slammed her head and face against the roof area of her vehicle. This action caused her glasses to break. [ 87 ] Davidson then took out a knife, placed the blade against her neck and said, “Do not scream or I will kill you”.

He then moved M.C. to a more secluded area of the parking lot and ordered her to lie down between two vehicles. He tied her hands behind her back with a nylon rope and stuffed one of her socks into her mouth. [ 88 ] Davidson then retrieved M.C.’s wallet from her purse and asked for her personal identification number. M.C. replied that she did not have a personal identification number. Davidson then placed the knife against her throat and repeated his request. M.C. provided him with a personal identification number. [ 89 ] At this point, a vehicle came into the parking lot.

Davidson held the knife to M.C.’s throat and told her, “If you breathe, if you move, I will kill you”. After the vehicle left the parking lot, Davidson rolled M.C. onto her back, lifted her top, and stroked her stomach area. He then unzipped M.C.’s pants and started to feel her lower abdomen area. [ 90 ] At this point, M.C. began to cry and told Davidson that she was having her period. Davidson stopped touching M.C.’s lower abdomen area, zipped up her pants, lowered her top, and left with her wallet. As a result of this incident, M.C. suffered a cut above her

eye requiring six stitches, rope burns on her wrists, a cut and scratches to her elbow, and various scratches to her knees. [ 91 ] In her Victim Impact Statement, M.C. described the “terror of the night” and fearing for her life throughout the assault. She also described that she had to leave her apartment and find alternate accommodation. She was also in therapy for a lengthy period of time. The assault also had a negative impact on her career. Some 13 years later, M.C. described being “frightened to the point of panic” on occasions when she had to enter an underground garage.

She was constantly concerned for her safety. She noted being upset every time she saw the scar above her eye resulting from Davidson pushing her head and face into the roof of her vehicle. (

d) Aggravated Sexual Assault of L.Y. [ 92 ] On June 29, 1986, at about 5:00 AM, Davidson returned to the apartment of his first victim L.Y.. L.Y. was asleep in bed and was woken by the sound of footsteps. She saw Davidson standing in her bedroom doorway and wearing a stocking mask and gloves. L.Y. recognized Davidson as the person who had victimized her on May 24, 1986. [ 93 ] Davidson rushed towards L.Y. and grabbed her by the throat stating, “You gave me the wrong numbers”. L.Y. began to scream and kick. Davidson began to choke L.Y. so she fell silent.

He then rolled her onto her stomach, bound her hands, and blindfolded her. L.Y. began to cry. Davidson placed a knife to her neck and said, “Shut up if you do not want me to cut your pretty neck”. L.Y. stopped crying and Davidson placed a gag in her mouth. [ 94 ] Davidson then found L.Y.’s wallet and became upset when he only found $21 inside. He demanded more cash. He then removed the gag from L.Y.’s mouth and she told him that she did not have any more cash. Davidson found a bank card and demanded that LY give him her personal identification number.

L.Y. gave him a false number. [ 95 ] Davidson then turned L.Y. over onto her back, removed her nightshirt, and began to touch her nipples and kiss her body. He partially undressed. He forced L.Y. to perform fellatio on him and to have sexual intercourse with him. After the sexual intercourse, he forced L.Y. to perform fellatio on him again. [ 96 ] Following the sexual activity, Davidson turned L.Y. over onto her stomach and released her bindings. He allowed her to dress. He then rebound her hands behind her back and bound her feet together with a nylon rope and a scarf.

He also tied her to a pipe, radiator, and a dresser. He then dressed and left the apartment through a fire escape with her wallet and the $21. [ 97 ] As a result of this assault, L.Y. suffered swelling and red marks to her wrists, ankles, and neck and she suffered scrapes to her cheeks and bruising on her legs. [ 98 ] In her Victim Impact Statement, L.Y. stated, “Not a day goes by that I do not think about it”. She described: being afraid to be alone, even during the day; fear of going to sleep; experiencing nightmares and severe depression; negative effects on relationships with men; and loss of independence.

L.Y. also described her fear and paranoia that Davidson would come back a third time and kill her. (

e) Sexual Assault with a Weapon of K.S. [ 99 ] On July 8, 1986, at approximately 12:30 AM, Davidson broke into K.S.’s residence through her four-year-old son’s bedroom window. The child was sleeping in his bedroom at the time of the entry. Davidson was wearing a stocking over his head and was wearing gloves. He was also carrying a knife. [ 100 ] K.S. was in her living room watching television. When she saw Davidson, she began to scream. He told her to be quiet or he would kill her. He also placed his hand over her mouth. K.S. began to struggle to keep away from the knife that Davidson was holding in his hand.

The commotion caused K.S.’s son to wake up. The son began to cry. [ 101 ] Davidson put the knife to K.S.’s throat and told her to keep calm. He then directed that they both go to her son’s bedroom where K.S. managed to calm her son down until he fell back asleep. [ 102 ] Davidson then led K.S. to her bedroom and ordered her to lie on her bed. He then tied her hands behind her back and blindfolded her with a sock. He told her that he only wanted money. K.S. said she did not have any money. [ 103 ] Davidson used the knife to remove K.S.’s bra and T-shirt.

He then proceeded to kiss her lips and breasts for about five minutes. He then untied her hands, removed his gloves, and began to give her a massage. He was naked throughout these activities in her bedroom. He made no further sexual advances. He told K.S. that he had never wanted to hurt her or her son and apologized many times for frightening her. He eventually removed her blindfold and put the knife into his pocket. [ 104 ] Davidson told K.S. that he would like to spend the night since it was late. K.S. told him that she would prefer if he did not spend the night.

He also offered her advice on securing windows in her home and then proceeded to her son’s window and secured it. [ 105 ] Davidson tucked the covers around K.S.’s son and then kissed him on the cheek. At this point, K.S. asked Davidson to leave. He told her that he would think about it. After a few moments, he told her that he would like to stay. After more pleading by K.S., Davidson got dressed and began to leave. As he was leaving, he asked K.S. if he could come back and see her. K.S. told him that he could, but not under the same circumstances. She asked him for his name and he replied “Dawson”.

He left at approximately 2:40 AM. [ 106 ] In a subsequent forensic psychological assessment interview with Dr. O’Shaughnessy, Davidson admitted touching K.S.’s breasts and genital area. He told Dr. O’Shaughnessy that he thought K.S. liked him, but that he was aware that she was not interested in having a relationship with him. [ 107 ] In another interview with Dr. Noone, Davidson stated, “I was casing her house, I admitted to myself for the first time that I was going to rape her”. He also admitted touching her breasts and vaginal area.

[ 108 ] In his Reasons for Sentence on December 22, 1986, Humphrey J. held: Two of the victims from Toronto testified about the impact on them, and I was told of the impact on the third victim from the Toronto area. Again, no useful purpose would be served by recounting the details of the devastation suffered by the victims. While only one victim was actually raped, the expression ‘stark horror’ aptly describes each event. Mr. Ruby argues that there are worse cases, and that may be so, but once a case reaches a certain level, as this one does, it can be described as one of the worst cases.

The devastation of the victims proves the point. (iii) Aggravated Assault of S.A. in Vancouver [ 109 ] On August 4, 1996, at approximately 3:45 AM, Davidson picked up S.A. who was working as a sex trade worker. He agreed to pay her $40 for sexual intercourse. Davidson drove around for a period of time before parking in an alcove area in an alley close to 23 rd Street and Main Street. [ 110 ] Once parked, they both got into the rear seat of the vehicle. Davidson gave the $40 to S.A..

When S.A. turned to put the money away and to get a condom, she was struck violently on the side of the head with a telephone insulator. [ 111 ] Davidson then ordered S.A. to “shut up”, and lie face down on the backseat. She resisted. Davidson then struck her again with the insulator on the right side of her head. At the same time, he tried to reach under a blanket in the backseat. [ 112 ] S.A. struggled with Davidson in an attempt to escape from the vehicle. She also screamed for help. Davidson put his hands over her mouth and nose, which interfered with her breathing. [ 113 ] S.A. was bleeding profusely.

She managed to get the car door open and pulled herself partly out of the car. Davidson continued to hang onto her and banged her head on the ground as she continued to scream. [ 114 ] A bystander heard S.A. screaming and went into the alley where he saw the struggle taking place. He intervened by striking Davidson a couple of times on the shoulder with a bicycle pump. This allowed S.A. to escape and she ran down the alley. The bystander pulled Davidson out from the vehicle and engaged in a brief struggle with him.

Following the brief struggle, Davidson sat down on the ground until the police arrived. [ 115 ] When the police arrived they observed that S.A. was covered in blood. Davidson appeared to be in a state of shock. A day or two later, while in police custody, Davidson attempted suicide by hanging himself. [ 116 ] The police searched Davidson’s vehicle. They located some pieces of rope under a blanket, plastic fasteners, latex gloves, an exacto knife, a metal pipe, a large piece of plastic sheeting, reinforced tape, and a wooden club.

A roll of duct tape was also located near Davidson’s vehicle. [ 117 ] S.A. suffered a severe laceration to her left ear. The top half of her ear was torn in half and required plastic and reconstructive surgery to repair. She also suffered an injury to the right side of her head, swelling near both eyes, and other bruises to her body. [ 118 ] In his Reasons for Sentence on August 4, 2000, Cronin PCJ emphasized the principles of deterrence and denunciation.

In addition, Cronin PCJ discussed the principle of protection of the public, particularly because S.A. was a vulnerable victim. [ 119 ] Cronin PCJ described Davidson’s criminal record arising from the circumstances of the Toronto offences to be very serious involving “generally speaking, similar acts of violence towards young women, some of which the brutality used is very horrendous.” (iv) Allegations Resulting in a Stay of Proceedings or Otherwise Not Pursued [ 120 ] The Crown alleged that in relation to the Toronto offences that Davidson disclosed that on June 26, 1986, in Toronto, at approximately 12:30 AM, a female drove into an underground parking lot and parked her car.

Davidson approached her, pointed a knife at her throat, and instructed her to get back into her car. The female was pushed down onto the floor in the back of her car. [120] Davidson asked her for money and she told him that she did not have any money. He then bound her hands behind her back with some rope, placed a jacket over her, and told her to stay on the floor. [ 121 ] Davidson then drove her car around for about one hour. The female told Davidson that she did not have a bank card, that she was 16 years of age, and that she wanted to be released.

At approximately 1:30 AM, Davidson drove into another parking lot, untied her hands, told the female to count backwards from 100, and fled the scene. [ 122 ] Davidson disclosed to Dr. Bradford, a psychiatrist called by Davidson in relation to the present proceedings, that on June 28, 1986, in Toronto on June 28, 1986, at approximately 5:15 AM, he observed the same female victim exit her vehicle and then enter her apartment. He used a knife that he had brought with him to cut the screen covering her balcony window. The female woke up and began to scream causing Davidson to run away.

Davidson’s account of this incident was described in the Psychiatric Report of Dr. Bradford, at p. 10: He was out looking at garages and casing places. He was looking at an apartment and a female returned home on the first floor. He climbed up on the balcony and it was pretty easy to do at about 8 feet and looked in. He describes this point that he was absolutely clear that he wanted to rape her. She was very attractive and about 30 years of age. He was on the balcony and she was getting ready for bed and was in a bra and panties. The door was locked. He came back when she was asleep.

He tried a break in and she heard him and he ran away. He describes the information for this is accurate in the O’Shaughnessy report and the Judge Cronin report August 4, 2000. D. DESIGNATION STAGE ANALYSIS

I. Section 753(1) (a)(

i) of the Code (

i) Pattern of Repetitive Behaviour [ 123 ] The Crown submitted that Davidson’s prior offending behaviour established a repetitive pattern. Particularly, the pattern demonstrated that Davidson had failed to restrain himself in the past and that he would likely fail to restrain himself in the future. [ 124 ] Davidson submitted that the requisite pattern of repetitive behaviour had not been established beyond a reasonable doubt. At para. 29 of his written argument, Davidson submitted: 29.

All of the previous offences involved extremely serious violence against strangers that was persistent and which can the best be described as attacks, without warning, with weapons, and while confining or attempting to confine of the victims. These characteristics are notably absent from the index [predicate] offence. [ 125 ] In addition, Davidson submitted that in relation to the predicate offence, D.B. consented to be in the company of Davidson and to engage in sexual activity in which some rough play would take place, including spanking and face slapping.

When Davidson crossed the line during the sexual activity with D.B. by choking her, he apologized. D.B. told Davidson not to repeat any choking activity and Davidson complied. There were no further incidents of choking on subsequent dates between the two. [ 126 ] I am satisfied beyond a reasonable doubt that the Crown has established a relevant pattern of common elements in relation to the 1986 offences and the 1996 aggravated assault committed by Davidson for the following reasons. [ 127 ] In relation to Davidson’s criminal activity in 1986 in Toronto, all of the victims were vulnerable females.

In each occurrence, Davidson was in a position of power and the degree of violence was high. All of the victims were strangers to Davidson. As a result of Davidson’s criminal actions, all of the victims sustained either physical or psychological trauma, or both. [ 128 ] In addition, there was considerable planning that went into Davidson’s criminal activity in 1986.

That planning included: stalking his victims; using a disguise; using a weapon; and binding or confining his victims. [ 129 ] Davidson’s criminal activity involved a heavily unrestrained and reckless sexual component. [ 130 ] The 1996 aggravated assault conviction involved a vulnerable sex trade worker. Similar to his criminal actions in 1986, Davidson was in a position of power and the degree of violence involving the victim was high. In addition, the victim was a stranger to Davidson.

The victim sustained both psychological and physical trauma as a result of Davidson’s criminal actions. [ 131 ] Furthermore, the victim was confined in the back of Davidson’s car until she escaped. Weapons and materials capable of confining the victim were located in Davidson’s car. (ii) Does the Predicate Offence form a Part of the Pattern? [ 132 ] By the very nature of her occupation as a street sex trade worker, D.B. was a vulnerable victim.

The victim of the 1996 aggravated assault offence was also a vulnerable sex trade worker working the streets of Vancouver. [ 133 ] At paras. 166 and 167 of my Reasons for Judgment in convicting Davidson of the predicate offence, the following findings were made: [166] I find that all three of the complainants are physically vulnerable. They are all of slight stature and would be described as petite. D.B. was the smallest of the three. When she first entered the courtroom, it was clearly apparent that she would be no physical match for any average male.

In the admissions that were filed, he was described at the time he was arrested as follows: “a white male, pudgy, in his mid-to-late-thirties and was young looking. He had sandy-blond hair, which was collar length. He was five foot eight to five foot nine. He weighed approximately 200 pounds and he had a stocky build”. [167] In light of the size disparity, there would be a clear obligation on the accused to ensure that before he performed the choking and strangulation actions on D.B. that she was fully informed of what he was going to do and that he had her express consent to engage in such activity.

He did not do so. [ 134 ] Similarly, all of the female victims of Davidson’s prior criminal activity were physically overpowered by him. [ 135 ] Compared to Davidson’s prior criminal actions, the degree of violence involved in the predicate offence was less serious.

However, the fact that there were two choking incidents in which consent was not canvassed demonstrates reckless behaviour on behalf of the Davidson. [ 136 ] Although there are distinctions between the predicate offence and Davidson’s prior offences, I am satisfied that there are also significant similarities, which include: vulnerable females; violence (including sexual violence); confinement; absence of consent; reckless behaviour; and Davidson’s physical superiority over his victims. [ 137 ] I am satisfied beyond a reasonable doubt that the Crown has established that the predicate offence forms part of the repetitive pattern. (iii) Does the Pattern Establish a Failure by Davidson to Restrain His Behaviour in the Past? [ 138 ] Davidson submitted that the Crown had failed to establish beyond a reasonable doubt that he had been unable to restrain his behaviour.

In particular, Davidson cited Cronin PCJ’s Reasons for Judgment in a previous failed dangerous offender application in 2000. Cronin PCJ found that Davidson had an “ability to restrain himself”.

[ 139 ] Davidson submitted that the Crown was not allowed to re-litigate settled issues, i.e., issue estoppel, particularly when the findings were favourable to him. Other than the predicate offence, nothing had occurred to undermine the findings of Cronin PCJ. [ 140 ] In my opinion, the commission of the predicate offence by Davidson undermines the findings of Cronin PCJ. Davidson was unable to restrain himself on two occasions by choking DB in the backseat of his car. [ 141 ] After Davidson was released on parole in April 2001, he approached Dr. O’Shaughnessy for ongoing psychiatric treatment.

At that time, Davidson was subject to a three-year probation order. Dr. O’Shaughnessy prepared a forensic psychological assessment report concerning Davidson: Ex. 16. [ 142 ] In his report, Dr. O’Shaughnessy confirmed that he provided psychiatric treatment to Davidson periodically between 2001 and 2009. Dr. O’Shaughnessy confirmed that Davidson suffered from clinical depression and a mood disorder. Pharmacological medication (Prozac) and psychotherapy were prescribed to manage Davidson’s clinical depression and mood disorder. [ 143 ] Dr.

O’Shaughnessy noted that in November 2002, Davidson informed him that he had breached his probation order by staying out past his curfew. [ 144 ] Dr. O’Shaughnessy noted that Davidson maintained stable moods and that he had secured stable employment in 2005. Depression remained of some concern, so Dr. O’Shaughnessy continued to prescribe medication to Davidson to manage his depression. [ 145 ] Davidson discontinued seeing Dr. O’Shaughnessy after November 17, 2005. Davidson re-engaged Dr. O’Shaughnessy on February 14, 2007. Dr.

O’Shaughnessy noted the following observations in his report respecting his meeting with Davidson on that date: His moods were stable. He acknowledged that at times he would still engage in escape into fantasies but seem to have better control over this behaviour. He attended primarily because he wanted me to assist him with his interpersonal relationships and social isolation. [ 146 ] Davidson saw Dr. O’Shaughnessy on two occasions in 2009. Dr. O’Shaughnessy reported that there were “no signs or symptoms… of any significant depression or anxiety”. [ 147 ] Dr. O’Shaughnessy last saw Davidson on December 16, 2009.

At that time, Dr. O’Shaughnessy did not observe any indication that Davidson was experiencing problems with his moods or acting out sexually deviant fantasies. Dr. O’Shaughnessy did not note any indication whatsoever that Davidson was concerned about his sexual offending encounter with DB earlier in the year. [ 148 ] Dr. Semrau practices medicine in the field of adult and forensic psychiatry. Dr. Semrau was the principal psychiatrist called by the Crown at the 2000 dangerous offender application before Cronin PCJ. Likewise, Dr.

Semrau was the principal psychiatrist proffered by the Crown at this hearing. [ 149 ] In his psychiatric report dated May 12, 2013, at p. 21, Dr. Semrau commented on Davidson’s failure to report his offending encounter with D.B. to Dr. O’Shaughnessy: Mr. Davidson saw Dr. O’Shaughnessy again a matter of months after the current offence, in December 2009. At that point (and indeed a few months earlier) Mr. Davidson would have been aware that he had re-offended and thus should have been alarmed at such an occurrence and sought urgent and intensive assistance from Dr.

O’Shaughnessy in order to avoid additional further re-offences. He however Dr. O’Shaughnessy in the dark regarding his re-offending and so took no such opportunity and instead carried on with Dr. O’Shaughnessy as though nothing untoward had happened. This strongly suggests a lack of motivation on the part of Mr. Davidson to control his offending behavior: Ex. Q, tab 11 (“Semrau Report”). [ 150 ] Dr. Bradford was retained by Davidson to provide opinion evidence at this hearing. Dr. Bradford is the Clinical Director of the Southeast Forensic Services for the Royal Ottawa Health Care Group.

He also established the Sexual Behaviours Clinic at the Royal Ottawa Health Care Group. From 1990 until 2012, he was a professor and the head of the Division of Forensic Psychiatry in the Faculty of Medicine at the University of Ottawa. [ 151 ] Dr. Bradford prepared a 39-page Psychiatric Report dated May 9, 2014. In preparing his report, he reviewed extensive documents relating to Davidson’s history. In addition, Dr. Bradford interviewed Davidson on October 2, 2013, and on October 3, 2013: Ex. 1 (“Bradford Report”). [ 152 ] It was Dr.

Bradford’s opinion that Davidson suffered from paraphilic coercive disorder, and was in need of treatment. In addition, Dr. Bradford was not able to rule out the possibility of sexual sadism. At p. 35 of his report, he addressed the possibility of sexual sadism as follows: The coercive sexual behaviour that he has engaged in with nonconsenting partners, including complete strangers, certainly in terms of sexual deviation is on the spectrum of paraphilic coercive disorder and possibly sexual sadism. It is not clear whether this would be an element of sexual sadism.

In his most recent offence choking behaviour causes significant concern because of the dangerous nature of this behaviour and it raises the possibility of sexual sadism. [ 153 ] In addition, Dr. Bradford, from a diagnostic standpoint, was of the opinion that Davidson was likely to have suffered from a mood disorder and that there was some family history of Bipolar Disorder. [ 154 ] The opinions of Dr. Semrau and Dr. Bradford support a finding that Davidson was unable to restrain his behaviour in the past without proper treatment. [ 155 ] Davidson’s failure to alert Dr.

O’Shaughnessy about his offending behaviour with D.B. was significant. Additionally, in 2009, Davidson’s moods were euthymic and his anxiety diminished. Yet, he was unable to restrain himself in his sexual encounter with D.B..

[ 156 ] I find that the Crown has established beyond a reasonable doubt that the repetitive pattern establishes a failure by Davidson to restrain his behaviour in the past. (iv) Does the Pattern Show a Likelihood of Death, Injury or Severe Psychological Damage to Other Persons through a Failure to Restrain Behaviour in the Future? [ 157 ] Davidson submitted that the Crown had failed to prove beyond a reasonable doubt that the pattern of repetitive behaviour showed a likelihood of death, injury or severe psychological damage to others through a failure to restrain his behaviour in the future. [ 158 ] Davidson opined that Dr.

Semrau’s evidence failed to establish the necessary likelihood that he would re-offend: Written Argument, p. 184, para. 350. [ 159 ] Furthermore, Davidson argued that Dr. Bradford’s evidence indicated that Davidson’s risk could be managed in the community with the treatment plan outlined in his psychiatric report. Dr.

Bradford held that if Davidson received appropriate treatment, the risk of sexual offence recidivism would be at or near zero at the time when Davidson reached the age of 60. [ 160 ] The Crown submitted that Davidson’s past offending behaviour was the best predictor of his future behaviour. [ 161 ] The Crown submitted that both Dr. Semrau and Dr. Bradford placed Davidson in a moderate to high risk category to re-offend.

With that in mind, the Crown submitted that Davidson’s past behaviour patterns should satisfy this Court that there would be a likelihood of death, injury or severe psychological damage to others by the failure of Davidson to restrain himself in the future. [ 162 ] For the following reasons, I find that the Crown has established beyond a reasonable doubt that the repetitive pattern of behaviour by Davidson proves a likelihood of injury or severe psychological harm to females through a failure to restrain his behaviour in the future. [ 163 ] There are significant temporal gaps in relation to Davidson’s offending behaviour.

However, one cannot minimize the circumstances surrounding his past offending behaviour. Davidson’s behaviour in relation to the Toronto offences was extremely serious. In his Reasons for Judgment, Humphrey J. noted in part: “Each victim was sexually assaulted after being tied up, and some were blindfolded. Each attack was carried out in the most bizarre and terrifying of circumstances”. [ 164 ] Davidson’s behaviour in relation to the aggravated assault of S.A. in 1996 was also extremely serious.

As a result of Davidson’s attack, S.A. was physically injured and sustained psychological trauma. [ 165 ] In relation to the sexual assault of D.B., there was the potential for significant physical and psychological harm to D.B.. [ 166 ] In each instance, the circumstances surrounding Davidson’s prior offending behaviour demonstrated his inability to restrain himself. Until Davidson is able to restrain himself in the future, his pattern of behaviour in targeting vulnerable females constitutes a real threat.

The nature of this threat is the likelihood that Davidson would cause physical injury and/or severe psychological harm to vulnerable females as a result of his unrestrained sexual impulses. ll. Section 753(1) (

b) of the Code (

i) Serious Personal Injury Offence [ 167 ] Davidson conceded that his conviction for sexual assault met the definition of a serious personal injury offence as set out in s. 752 (

b) of the Code . (ii) Has Davidson, by Hs Conduct in Any Sexual Matter, Shown a Failure to Control His Sexual Impulses? [ 168 ] Only conduct of a sexual nature should be considered in establishing the required elements of s. 753(1) (

b) of the Code . Accordingly, Davidson’s offences in 1986 and the predicate offence were relevant. [ 169 ] Davidson submitted that his prior conduct did not show a failure to control his sexual impulses. Davidson referred again to Cronin PCJ’s findings that Davidson had an “ability to restrain himself”. [ 170 ] However, Cronin PCJ’s findings in relation to Davidson’s ability to restrain himself were under

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