R. v. Caston, 2019 BCPC 140

Citation: R. v. Caston 2019 BCPC 140 Date: 20190621 File No: 242319-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES DOUGLAS CASTON BAN ON PUBLICATION – SECTIONS 486.4 and 517 C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. BROOKS Counsel for the Crown: Dasein Nearing Jacqueline Madden Counsel for the Accused: Paul W. Janzen Place of Hearing: Vancouver , B.C. Dates of Hearing: January 21-24, 28-31; February 4-7, 11-14, 19-21; and April 25, 2019 Date of Judgment: June 21, 2019 TABLE OF CONTENTS Paragraph No. Introduction 1 Position of Parties 5

Issues Facts 9 The Circumstances of the Predicate Offence 12 The Circumstances of the Offender 19 A. Criminal Record 22

i) January 25, 1985 26 ii) September 28, 1987 28 iii) July 7, 1988 36 iv) December 6, 2000 38

v) March 27, 2001 and April 9, 2003 46 B. History of Supervision and Treatment 49

i) Pre-1984 51 ii) 1984-1991 61 iii) 1992-1998 88 iv) 1998-2005 91 v) 2005-2013 116 vi) 2013-2016 117 vii) 2016-present 161 viii)

Summary of Treatment and Supervision 176 DESIGNATION AS A DANGEROUS OFFENDER 179 The s. 752.1 Assessment 182 Analysis 205 A. Has the Crown satisfied s. 753(1)(b)? 206 1. “[H]as shown a failure to control his or her sexual impulses” 210 2. “[L]ikelhood of causing injury, pain or other evil through failure in the future to control his or her sexual impulses” 219 B. Has the Crown satisfied s. 753(1)(a)(i)? 249 1. Is there a pattern of repetitive behaviour? 251 2. Of which the February 10, 2016 offence forms a

part 259 3. Does the pattern show a failure by Mr. Caston to restrain his behaviour in the past? 262 4. Does the pattern show a likelihood of death, injury or severe psychological damage to other persons through failure to restrain his behaviour in the future? 263 C. Has the Crown satisfied s. 753(1)(a)(ii)? 265 1. Is there a pattern of persistent aggressive behaviour? 266 Conclusion on Dangerous Offender Designation 272 PENALTY STAGE 273 Analysis 275 A. General Sentencing Principles 277 B. Is there a reasonable expectation that a conventional sentence will adequately protect the public from the prospect of Mr.

Caston committing a serious personal injury offence? 286 C. Is there a reasonable expectation that a conventional sentence followed by ten years of long-term supervision will adequately protect the public from the prospect of Mr. Caston committing a serious personal injury offence? 293 1. Correction Evidence 294 2. Position of Parties 300 3. Mr. Caston’s Response to Supervision and Treatment 303 4. Future Treatment Prospects 324 5. Conclusion 357 SENTENCE 358 ANCILLARY ORDERS 360 INTRODUCTION [ 1 ] On September 16, 2016 Mr.

Caston, after electing to be tried in Provincial Court, pled guilty to the following offence: James Douglas CASTON, on or about the 10 th day of February 2016, at or near Vancouver, in the Province of British Columbia, did sexually assault T.G. contrary to

section 271 of the Criminal Code . [ 2 ] On the same date, Mr. Caston also pled guilty to: James Douglas CASTON, on or about the 10 th day of February 2016, at or near Vancouver, in the Province of British Columbia, being bound by a recognizance under

section 810.1 of the Criminal Code , committed a breach of the recognizance by being alone in the presence of any child under the age of eighteen (18) years, contrary to

section 811 of the Criminal Code . [ 3 ] An application is now being made with respect to the sentencing on the sexual assault indictment for a designation that Mr. Caston is a dangerous offender and that he be sentenced to an indeterminate sentence. The defence opposes both the designation and the

indeterminate sentence. [ 4 ] In support of the application, extensive documentation was exhibited and eighteen witnesses were called by the Crown. A lengthy Agreed Statement of Facts was entered as Exhibit 2. The defence elected to call no evidence. I do not intend to summarize the entirety of the evidence that I have read and heard. I have taken all of it into account. I do intend to refer to only those parts of the evidence which are important to the resolution of the issues raised by the particular circumstances of this sentencing. POSITION OF THE PARTIES [ 5 ] The Crown seeks a designation that Mr.

Caston is a dangerous offender relying on three of the four bases set out in s. 753 of the Criminal Code . The disjunctive phrasing of s. 753 permits such a separate consideration of each of the three routes to the dangerous offender designation. The three bases relied upon by the Crown are s. 753(1)(b), 753(1)(a)(

i) and 753(1)(a)(ii). [ 6 ] In the event that the evidence satisfies me beyond a reasonable doubt that Mr. Caston is a dangerous offender then the Crown seeks that, of the sentencing options available, Mr. Caston be sentenced to an indeterminate period of incarceration. In the event that I am not so satisfied then, in the alternative, the Crown seeks a Long-Term Offender designation. [ 7 ] The Defence submits that the evidence ought not to satisfy me that Mr. Caston be designated a dangerous offender. However, in the event that I am so satisfied the defence submits that Mr.

Caston not be sentenced to an indeterminate period of incarceration but to a designation as a Long-Term Offender. It is, however, the primary position of the defence that the evidence does not even support the finding of a Long-Term Offender designation and Mr. Caston be given a conventional sentence. [ 8 ] Accordingly, after I make findings of fact I shall consider, first, each of the three routes to a finding of a dangerous offender. Second, I shall consider the appropriate sentencing option and disposition given the finding that I make. ISSUES 1. Is Mr. Caston to be designated as a dangerous offender? 2.

In light of the finding on Issue #1, what is the appropriate sentence? FACTS [ 9 ] A significant part of the evidence in this sentencing was contained in the documentary exhibits of which Exhibit 1 was the most voluminous. It contains roughly 3,100 pages of reports and records of the many years of treatment and supervision of Mr. Caston. Eighteen witnesses testified for the Crown of whom six were psychologists and five were psychiatrists. It was not suggested that any experts gave evidence outside of their area of expertise.

For the most part, the question that arose from the experts’ evidence was the weight to be given to certain opinions offered. This was particularly the case with the court ordered assessor, Dr. Kulwant Riar. [ 10 ] The volume of the documentary evidence created an evidentiary concern. There was simply too much material for counsel to refer to each entry or even each group of entries. Therefore, I was left to review many of the records myself. I did so, reading quite closely the institutional records and the forensic records.

I advised counsel that I was doing so and left it to them to bring to my attention any specific records that were disputed. Defence counsel raised in their submissions the proposition that documentary evidence ought to be treated with some care given that it was created for a specific purpose. For myself or an expert to use that evidence without regard to that purpose risked giving the evidence more weight than it ought to have in the defence submission. I have kept that submission in mind with respect to all documents, especially those where no dispute was brought to my attention.

I have also kept in mind general considerations of reliability with respect to all documents. Where the evidence provided by documents is disputed, I will make a determination of the issue raised. [ 11 ] I will commence with findings as to the predicate offence, then summarize the circumstances of the offender. For the purposes of the issues raised by this sentencing, the extensive history of the treatment and supervision of Mr. Caston requires a thorough

summary. The Circumstances of the Predicate Offence [ 12 ] On February 10, 2016 Mr. Caston contacted his treating psychologist, Dr. Thomas, and advised that he was unable to make his appointment for noon that day. [ 13 ] At approximately 1:40 that day, a five year old boy, T.G. was on a school field trip with his kindergarten class at the public library in downtown Vancouver. His mother was one of the chaperones. At that time, T.G. went into the public washroom alone while his mother waited with two female children in the area outside of the washroom. Mr. Caston entered the washroom as T.G. was at the urinal.

When T.G. finished using the urinal, Mr. Caston used his hand to fondle T.G.’s exposed penis. Mr. Caston took T.G. into a washroom stall, pulled down his pants and fondled T.G.’s penis with his hand. T.G. started to cry and told Mr. Caston that he had to go catch his bus. Mr. Caston told him to be quiet. T.G. pushed on the door of the stall in an attempt to leave the stall. [ 14 ] At this time another male, Mr. H., entered the washroom. He heard a whimpering sound coming from a stall and saw T.G. and Mr. Caston come out of the a stall and leave the washroom. Once outside the washroom, Mr.

Caston walked in the opposite direction of T.G. Mr. H., seeing this, spoke with T.G.’s mother and T.G. said “that man touched my penis” referring to Mr. Caston. [ 15 ] Police attended and arrested Mr. Caston for sexual assault. The police subsequently discovered that Mr. Caston was bound by a

section 810.1 recognizance. Condition 9 of that recognizance prohibited Mr. Caston from being alone with any child under the age of 18 years. The police then arrested Mr. Caston for the additional offence of breach of his Recognizance to which Mr. Caston responded “yeah I know.” [ 16 ] Mr. Caston provided a police statement later that day confirming the sexual assault and providing detail as to his exact actions.

No issue was taken as to the admissibility of the statement. Mr. Caston said that he talked quietly to the boy and guided him to thehandicap stall. He asked the boy to be quiet. The boy said that he had to go and that he was going to miss his bus. T.G. physically triedto go but Mr. Caston guided him back to where he wanted T.G. At about this time the boy started to cry. Later in the statement, Mr.Caston told the police that the boy’s reaction to being touched was that the boy was enjoying it. Mr. Caston told the police that he heardthe other male in the washroom (Mr. H.) and would have done it longer if Mr.

H. were not there. Mr. Caston also told the police that ifthe boy had said no he wouldn’t have stopped. “This child can’t consent”, he later volunteered. He also admitted that he had visited thelibrary 30 times in the previous two months and was “trolling” for victims at the library. He had been planning his actions for the pastthree to four days and went to the library the day before but no opportunities presented themselves. He had been at the library onFebruary 10 since it opened.

When it was suggested that T.G. was not the first one given how much time he had spent at the library, Mr.Caston replied, “No, it wasn’t, but I’m not gonna say.” [17] It is of note that, in addition to the February 10, 2016 appointment that he had cancelled, Mr. Caston had had an appointmentwith his treating psychologist, Dr. Thomas less than one month earlier on January 14, 2016. By virtue of what he said in his statement,Mr. Caston was already ‘trolling’ for children at the library by the time of that appointment. [18] Crown counsel sought a finding that what Mr.

Caston said in his statement was proven beyond a reasonable doubt such that Icould make use of the additional details in arriving at an appropriate sentence. I have reviewed the entirety of the statement. At somepoints Mr. Caston chooses to answer questions and at other points he does not. There is absolutely nothing which suggests that thestatement is other than an exercise of Mr. Caston’s free will. There is nothing in the circumstances or the words spoken that causes meany concern as to the reliability and trustworthiness of what Mr. Caston says in the statement itself: R. v.

Ziegler, 2012 BCCA 353, [2012] B.C.J. No. 1755. Accordingly, I accept as proven the facts as contained within the statement made by Mr. Caston andwill consider it in arriving at the appropriate sentence. The Circumstances of the Offender [19] Mr. Caston was born on February 16, 1962, which makes him now 57 years of age. He was adopted at approximately twomonths of age. At age four he was assessed and described as slow and suffering from cerebral palsy. He was incontinent well into hisschool years and was prone to having severe temper outbursts. He was prescribed Mellaril, an anti-psychotic drug at age five. Dr.

Riarwas to later testify that this prescription was unlikely to occur nowadays given Mr. Caston’s age and the possibility that the behaviourswere not as a result of any psychosis. Mr. Caston was placed in special classes and moved amongst schools including the TranquilleSchool and to treatment centres. When he came to be administered IQ tests, he received full scores between 77 and 85. He remainedliving at home until age 16 when he was sent to the Chrisholme Residential Farm and Training Centre, a home which focused on boysdescribed at that time as retarded. He was asked to leave, Mr.

Caston said, as he sexually assaulted a disabled 14 year old boy. It wasroughly in this time period that Mr. Caston’s parents declined to have him take sexual offending counselling. [20] So began many years of attention paid to Mr. Caston’s sexual offending behaviour. That history will be summarized belowfrom the evidence given and the records contained in Exhibit 1 under the heading ‘History of Supervision and Treatment’. [21] In October 1987 (at 25 years of age), he went to reside at the Lookout Emergency Aid Resource and remained a resident therefor approximately 11 years.

He later moved to the Marble Arch Hotel where he again remained for many years. His contact with hisfamily appears to have been almost non-existent over the years. He describes himself as a loner and there are few references to anyfriends or social life in the materials. He has survived on a disability income. Combing through the volumes of documents, I was able tolocate one year when he was employed at an antique shop although it is unclear whether it was regularly paid work. He collects licenceplates. A. CRIMINAL RECORD [22] Mr. Caston’s criminal record contains seven entries.

His first criminal conviction is at age 22. The offence date is contained inbrackets: January 25, 1985 New Westminster (August 4, 1984) Sexual assault S. 246.1 CC Suspended sentence and Probation 3 years September 28, 1987 Vancouver (May 18-21, 1987) Sexual assault S. 246.1 CC Suspended sentence and Probation 3 years August 9, 1988 Vancouver (April 7, 1988) Theft under $1000 S. 294(

B) CC Suspended sentence and Probation 18 months

July 7, 1998 Vancouver (August 14, 1997) Possession of Child Pornography S. 163.1(4) CC Suspended sentence and Probation 3 years December 6, 2000 New Westminster (January 31, 2000) Sexual Interference S. 151 CC 45 days and Probation 3 years March 27, 2001 Vancouver (January 25, 2000) Public Mischief S. 140(1)(c) 90 days and Probation 3 years April 9, 2003 Chilliwack (May 23, 2001) Public Mischief S. 140(2) 5 months and Probation 18 months [ 23 ] Therefore the record shows that Mr. Caston committed four offences while on court ordered probation. Two of those offences were sexual offences.

Once the 2016 offences are added, by virtue of the plea at the outset of this sentencing, there are three occasions where Mr. Caston has committed sexual offences while on a court order. However, it must be noted that apart from these actions there are no breach of probation convictions. [ 24 ] Emphasis was made in submissions that the criminal record indicates two significant gaps in sexual offending, first, from 1987 to 1997 (a gap of approximately 10 years) and, second, from 2000 to 2016 (a gap greater than 15 years).

Such gaps, it was submitted, are important evidence to both the dangerous offender designation and to the penalty which is to be imposed. [ 25 ] In order to evaluate the issues raised by the criminal record, it is necessary to review in depth the circumstances of those offences with emphasis on those which involve sexual behaviour. This review is important to understanding his offending generally but also to a later portion of these reasons that considers the “pattern” of conduct element to the dangerous offender designation as contained in two routes to that designation, s. 753(1)(a)(

i) and s. 753(1)(a)(ii).

i) January 25, 1985 [ 26 ] On August 4, 1984, Mr. Caston sexually assaulted a three and a half year old boy, V.E. Mr. Caston was staying at his parent’s home without their permission while they were on holidays. V.E. was the son of a neighbour and was known by the nickname ‘B.’. Mr. Caston had been watching V.E. for several months. Mr. Caston got V.E. into his parents’ yard by offering the child some cherries. Once in the yard Mr. Caston unzipped V.E.’s shorts and fondled the boy’s penis. He then sent the boy home. Approximately 15 minutes later, the boy came back to pick more cherries. Mr.

Caston fondled the child’s penis again. The child then went to play on the sundeck, where Mr. Caston fondled him again. V.E. left, then, approximately fifteen minutes later, the child returned to play with a cat on the sundeck. Mr. Caston fondled the boy inside the house and had the boy fondle himself. Mr. Caston placed his penis on the child’s penis and then masturbated himself to ejaculation. According to V.E., “he peed on me with white stuff.” Mr. Caston then gave V.E. a cookie and fondled him again. Mr. Caston wrote about this offence in an autobiography that he gave to Dr. Peter Johnson in 1988.

His account of his thinking at the time of this offence will be quoted when summarizing Dr. Johnson’s evidence. [ 27 ] Mr. Caston remained in custody for approximately five and a half months before pleading guilty to sexual assault and being sentenced to, inter alia , three years’ probation on January 25, 1985.

The conditions of the probation order included reporting weekly to a probation officer, residing at Pioneer House until a permanent residence was obtained, attend psychiatric counselling at the Sex Offenders Treatment Centre Forensic Outpatient Clinic and to have no relationship of any kind with any child under the age of 16. ii) September 28, 1987 [ 28 ] Mr. Caston was more than two years into his probation when he committed his second sexual assault. Between May 17 and 21, 1987, Mr. Caston was staying with a family who befriended him. The family included a five year old boy, J.L.

On the first morning of his stay (May 17), Mr. Caston went into J.L.’s room while the boy was sleeping and lifted the covers to look at the boy’s penis. He saw that J.L. was naked from the waist down. Mr. Caston left the room without touching the boy. [ 29 ] On the second and third mornings (May 18 and May 19) of his stay, Mr. Caston again went into J.L.’s room while the boy was sleeping. Mr. Caston touched the boy’s penis through his pajamas. J.L. did not wake up. Mr. Caston left the room but watched the boy from the living room. On the fourth morning (May 20), Mr. Caston went into J.L.’s room.

He fondled the boy’s testicles and penis over top of the child’s pajamas and squeezed the tip of the child’s penis. J.L. was asleep the whole time. On all four occasions, Mr. Caston had an erection. [ 30 ] Mr. Caston was asked to leave the residence for other reasons but returned the next day and tried to cut himself with a toy knife in front of the child. A few weeks later Mr. Caston disclosed the sexual offending of J.L. during a counselling session and stated that he had made love to 30 children. He repeated his admission of the sexual assault of J.L. to the police. He also stated these admissions to Dr.

Wydra in September 1987 adding that he confessed his actions as he had urges to harm the child.

[ 31 ] Mr. Caston gave a statement to the police describing in detail his actions with J.L. as set out above. He also said to the police, “[i]f I see [J.L.] alone, I’m telling you the God dam truth, I’d molest him”. He was asked if he would like J.L. to do things to him and he said he is not that way: “I like to do it to children, I don’t really like them to do it to me.” [ 32 ] Prior to staying with the family, Mr.

Caston was told by Karl Friesen, his psychiatric social worker, and Fred Hitchcock, his probation officer, on April 29 and April 30, 1987 (i.e. about three weeks before the offence) to have no contact whatsoever with J.L. [ 33 ] Although this will be referred to again in the context of his ongoing treatment, it is important to note that in May 1987, Mr. Caston was taking 300 mg of antiandrogen medication, specifically cyproterone acetate (CPA). He received that medication on May 4 and 11, 1987. He missed his scheduled appointment on May 18, 1987 to obtain his medication.

He received it again on May 25. [ 34 ] While the records are not as complete as they might be, it appears (from the fact that two psychologists saw him in custody prior to his sentencing) that he was in custody from approximately June 4, 1987 until his sentencing on September 28. [ 35 ] Mr.

Caston was placed on probation for three years with the conditions that he live at the Lookout facility, attend psychiatric or other counselling as directed, abide by a curfew and not be in the company of any person under the age of 16 unless they are accompanied by a responsible adult. iii) July 7, 1998 [ 36 ] In August 1997 Mr. Caston was residing at the Lookout Services Society in Vancouver. On August 14, 1997 while Mr. Caston was at a Lookout sponsored camping trip, one of the staff brought mail to his room. The staff member looked inside the top drawer of the dresser and found a full loose-leaf binder.

The binder contained several pages of photographs, all cut out from magazines, showing mostly naked pre-pubescent males, focusing on the genital areas and the buttocks of these males. The police attended and searched the room. They found seven similar binders (for a total of 1,246 images) as well as a large quantity of cut out photographs not yet in binders. The photographs were from nudist magazines, anthropological textbooks, as well as neo-natal and pre-pubescent child care publications. Mr.

Caston told Sharron O’Brien, who prepared a pre-sentence report, that he possessed the images in order to manage his sexual urges toward children. In speaking with Dr. Levy, the psychiatrist who prepared a pre-sentence report, Mr. Caston said it took him 10 years (i.e. since 1987) to put the binders together. [ 37 ] At sentencing, Mr. Caston was placed on a very detailed, 11 condition probation order. The fact of such a detailed and far- ranging probation order for a possession of child pornography conviction suggests the seriousness with which Mr. Caston’s prior behaviour was viewed.

The conditions included that he participate in any assessment to assist his rehabilitation, no go to residences, public parks, swimming areas or seek employment where children were. He was to provide access to his residence to his probation officer and must not be in the company of a child. The order was for the three year term recommended by the preparer of the pre- sentence report. iv) December 6, 2000 [ 38 ] On January 31, 2000 Mr. Caston was visiting a woman, who had befriended him a few years earlier, at her residence. He visited this woman, a grandmother, on a regular basis.

On the day of the offence, the grandmother had left him alone in the apartment while she and her daughter left to pick up her older grandchild from school. Also in the apartment was four year old N.T.W. When the grandmother returned, the door was locked. It had been unlocked when she left. Although there is not a reference in the Agreed Statement of Facts to the amount of time the grandmother was away from the apartment, there is such a reference in her statement. There was no dispute raised to the statement. She told the police that she was away from the apartment for 14 minutes.

That tape recorded statement was given just over three hours after the events. Obviously it is very precise evidence. In the totality of the circumstances, I have concluded that the statement of the grandmother that Mr. Caston was only alone with the child for 14 minutes is credible and trustworthy and I find it as a fact. [ 39 ] When she entered the apartment she saw Mr. Caston and her four year old grandson lying on a bed facing each other. N.T.W. had his pants down below his hips and she could see his naked buttocks and penis. She could see Mr. Caston touching the boy’s penis with his hand. Mr.

Caston appeared to have his pants on but when the grandmother entered the room, Mr. Caston jumped up and she saw that his penis was outside of his pants. She called the police who arrived and arrested Mr. Caston. His presence in the company of N.T.W. was contrary to the conditions of his probation order. [ 40 ] In addition to these facts, Crown counsel submitted that other facts about Mr. Caston’s behaviour toward N.T.W. had been proven beyond a reasonable doubt in this sentencing proceeding. The additional facts arise from statements made by Mr. Caston to Dr. Thomas in 2015. The statements are that Mr.

Caston began molesting N.T.W. at one month of age by inserting his finger into his anus. Mr. Caston stated that the infant got an erection and ‘had his first orgasm’. He assaulted the boy as soon as the opportunity presented itself. [ 41 ] The Crown submits that I ought to find these facts proven beyond a reasonable doubt as other evidence supports that this admission by Mr. Caston is true. The defence says that I ought not to find the admission of Mr. Caston to be true. The defence urges that Mr. Caston has an acknowledged history of saying things that are untrue in order to shock the listener.

That history emerged from the evidence of Dr. Kerr and Dr. Johnson. Additionally, the offending behaviour described does not fit Mr. Caston’s typical behaviour and therefore there is doubt that his statement to Dr. Thomas is true. [ 42 ] The other evidence relied on by the Crown gives Mr. Caston the opportunity to have acted as the statement says. The Agreed Statement of Facts, entered as Exhibit 2 in these proceedings, states that N.T.W.’s grandmother, B.M., had befriended Mr. Caston ‘a few years earlier’ than the date of the offence when N.T.W. was four years old. In addition, Ms. B.M. had testified at Mr.

Caston’s mischief trial in early 2001 that she had known him ‘for a while.’ If accepted, this evidence supports that Mr. Caston had the opportunity to act as he said he did while speaking to Dr. Thomas. [ 43 ] These facts were challenged at the same trial by Mr. Caston who testified that he had only met Ms. B.M. the day before the

offence. Her Honour Judge Godfrey, had to resolve this dispute and did so by finding that Ms. B.M. was a credible witness. Certainly there could be no reason for Ms. B.M. to lie about when she befriended Mr. Caston. While Judge Godfrey’s finding is of some assistance, the more important consideration is that Mr. Caston’s association with the grandmother is contained in the Agreed Statement of Facts. That being the case, I find that there is support for the truthfulness of Mr. Caston’s statements to Dr. Thomas. I also find that Mr.

Caston’s admissions have the necessary reliability particularly given that they are admissions that are against his interests. Why would he say such a thing to Dr. Thomas if it were not true? There is no discernible motive for him to mislead her. Dr. Thomas testified that she had a good rapport with Mr. Caston making it less likely that he would be trying to shock her and more likely that he would be candid with her. I also note that the content of the admissions have about them the cognitive distortion that peppers Mr. Caston’s discussions of his sexual activity. That too adds to its reliability.

The actions are also more consistent with his offending behaviour in that he prefers to act on children rather than them on him. The act of digital penetration may be different from Mr. Caston’s typical behaviour, as the defence submits, but is not so different as to raise a doubt about the reliability of his statement. All of these factors lead me to conclude that his statements to Dr. Thomas about his offending with N.T.W. are proven beyond a reasonable doubt. [ 44 ] The importance of this finding ought to be referred to at this point. The first implication is that Mr.

Caston’s offending behaviour has to be seen as occurring in 1996 thereby reducing one of the gaps in his offending behaviour by approximately one year. Second, this finding renders his statements to his probation officer Ms. Tobin (which interaction will be summarized below) that he was staying away from children during this time to be deceptive. [ 45 ] He remained in custody from January 31, 2000 until February 17, 2000. On December 6, 2000 Mr. Caston was sentenced to 45 days in custody and three years’ probation.

The terms were that he was to attend psychological and psychiatric assessments as directed, not to be in the presence of any person under the age of 18 unless accompanied and supervised by an adult and not to attend any public park or swimming area where persons under the age of 14 were present.

v) March 27, 2001 and April 9, 2003 [ 46 ] These two offences of public mischief involve Mr. Caston making false allegations that he had been sexually assaulted by individuals against whom Mr. Caston bore a grudge. I will return to these offences when considering the ‘likelihood of future injury’ element of s. 753(1)(

b) as I have concluded that the offences and the findings made by the sentencing judges in those cases and the diagnosis made by the treating specialists are relevant to that element. [ 47 ] In

summary, Mr. Caston’s criminal record reflects two prior sexual assaults and one sexual interference. All were against male children. For each he served months in custody prior to sentencing, no doubt due in part to the seriousness of the offences. He went approximately ten years (from September 1987 to the date of the offence of August 1997) until his next relevant offence, the possession of child pornography. While on probation for that offence he committed the sexual interference offence for which he received, again, the maximum period of probation.

Each probation order just mentioned contained detailed conditions for his close supervision. Having said that, even taking into account the public mischief convictions, he went just under 13 years from the last conviction until he committed the offence of February 10, 2016. [ 48 ] It is important to bear in mind, however, that one of the results of these convictions were probation orders that kept Mr. Caston under supervision for lengthy periods of time until late 2004. He returned to supervision in 2013. With that in mind, I turn now to a

summary of the evidence of Mr. Caston’s supervision and treatment. B. HISTORY OF SUPERVISION AND TREATMENT [ 49 ] Mr. Caston’s supervision and treatment are, clearly, two very different aspects of his management. Supervision is the monitoring of his behaviour, while treatment is the purview of health professionals in managing his behaviour. That difference will become very clear when the ‘three-pronged’ approach to managing Mr. Caston is discussed with respect to his future treatment prospects.

Nevertheless, supervision and treatment are summarized together as they occur at the same time over a lengthy period of time. As well, Mr. Caston’s supervision and treatment raise similar factual issues that are important as to the conclusion as to designation as a dangerous offender and the appropriate sentence. Those issues include: the opportunities of treatment offered to Mr. Caston, the nature and suitability of that treatment, and the impact of that supervision and treatment on his offending behaviour.

Of particular importance to his treatment prospects is the history of his medication usage and his rapport with those who are providing him support. [ 50 ] Given its cumulative duration of almost twenty years, Mr. Caston’s supervision and treatment is separated into specific periods of time.

i) Pre-1984 [ 51 ] Mr. Caston’s behaviour difficulties as a child have already been referred to. They occur in the context of a person described as ‘slow’ and suffering from cerebral palsy. The relevant treatment of Mr. Caston began when he was a teenager. Mr. Caston had shown maladaptive, bizarre behaviour since age 14 when he was enrolled in the Living Management Programme at Variety Treatment Centre in Surrey. At age 15, he went for his second full assessment at the Woodland School, one of the problems being his sexual overtures towards younger boys.

It was recommended he be referred for sexual counselling. [ 52 ] At age 16, he was sent to Chrisholme Society Residential Farm and Training Centre. He had been referred there as a result of inappropriate sexual behaviour that had been difficult to control. While there he showed some progress but it was noted that he engaged in frequent masturbation using pictures of young children as visual stimulus and was masturbating farm animals. In July 1979, it was noted that he made a sexual advance to a two year old boy who was visiting Chrisholme. [ 53 ] Mr. Caston was assessed on November 13, 1979 by a psychologist, Dr.

Leard. After testing, Dr. Leard concluded that the ‘retarded’ label which Mr. Caston “had been carrying around for some time be re-examined”. [ 54 ] A psychiatric report at the same time prepared by Dr. Murdoch gave more detail as to Mr. Caston’s behaviour. It noted that

Mr. Caston was observed to be in sex play with a two year old boy and was known to make inappropriate sexual comments. His behaviour was also noted to be anti-social. “It was noted that he was on a behaviour modification programme while in the residence and did very well, but when outside the programme, his unacceptable behaviour immediately returned . . . There is concern about his future placement as he needs total supervision”. After summarizing interviews with the social worker, Mr. Caston’s mother and James, Dr.

Murdoch concluded, “[s]uperficially he appeared to understand that his behaviour was unacceptable but gave the impression that he was not able to control his basic impulses”. He then continued, “[h]is anti-social behaviour continues to be stealing and lying.” The diagnosis was personality disorder. Of this diagnosis, Dr. Wang and Dr. Riar, both psychiatrists, testified at this hearing that caution should be used with that diagnosis of an adolescent. [ 55 ] In the spring of 1980, Mr.

Caston had been involved in a sexual act with a fourteen year old boy who had cerebral palsy affecting all four limbs and who was partially deaf. There was significant concern about the impact on Mr. Caston if he were charged and proceeded with in the criminal justice system. As a result he was assessed, it appears at the Forensic Psychiatric Institute, after which it was said, “[i]nformation is remarkably consistent, history of physically and sexually aggressive behaviour toward younger weaker children.

Expressions of remorse and a return to the behaviour as soon as opportunity presented itself.” After referring to their assessment of Mr. Caston, it is stated, “[t]hus this patient appears to have few intellectual, neuropsychological or emotional resources.” A

summary of his school records concluded, “James has been provided with the best available [emphasis in original] treatment and learning opportunities. . . The assessments at age four, eight, nine, fifteen and seventeen were well timed and purposeful.

Almost every recommendation made by the assessment teams was put into practice.” Despite this level of attention it was concluded that “James may need external controls continuously in order to refrain from sexually deviant behaviour of a criminal nature.” [ 56 ] About this time his IQ was tested and he had a full IQ score of 85. [ 57 ] In 1980, he was admitted to Riverview Hospital where he remained for just under two years. During that time he received a variety of treatments including aversion therapy with respect to his attraction to young boys. Mr.

Caston was to provide very different descriptions of this treatment in the years to come. He told Dr. Alan Posthuma, a psychologist, in 1984 that the therapy helped as it was over two years after the therapy stopped before he offended again. In 1998, he told the preparer of his pre-sentence report that the therapy did not help him with his sexual problems. In 2015, he told Dr. Thomas that there was not any drop in his interest in boys as a result of this treatment. [ 58 ] The reliability of Mr.

Caston’s self-reports about his treatment to those attempting to work with him is a very important topic in considering his treatment prospects. [ 59 ] Mr. Caston’s diagnosis while at Riverview Hospital was pedophilia. [ 60 ] After leaving Riverview Hospital, he went to live, in 1982, at Pioneer House, a psychiatric boarding house but left after approximately two years as the rules were too strict. It was in 1984, during which time he was transient that his first offence occurred. ii) 1984-1991 [ 61 ] On October 25, 1984, Dr. Posthuma wrote an assessment report prior to Mr.

Caston’s sentencing for his first criminal offence. Dr. Posthuma testified at this hearing that Mr. Caston told him of his sexual activity with young boys as well as his nightly masturbation to fantasies of young boys. Dr. Posthuma stated in his report that “[i]t would appear that Mr. Caston has not had any systematic treatment of his sexual problem. The program he underwent at Riverview Hospital was not tailored to Mr. Caston’s form of sexual problem and thus only partially effective”. In cross-examination at this hearing, Dr.

Posthuma stated that he did not have the records from Riverview at the time of his assessment. By ‘partially effective’, Dr. Posthuma was referring to Mr. Caston still masturbating to deviant images. [ 62 ] Mr. Caston told Dr. Posthuma in 1984 that his sexual history consisted of five experiences which he detailed for the doctor. Dr. Posthuma stated in his report that Mr. Caston’s problem is not adequately described as a pedophilic one. Dr. Posthuma went on to opine that, given Mr.

Caston’s limited intellectual functioning, “his sexual behaviour is more in the form of the sexual exploration that would take place between mutually consenting boys of that age”. He did detect some anti-social personality traits. He went on to note in his report that “there is no question that Mr. Caston’s desire to deal with his problem is genuine.” Amongst Dr. Posthuma’s recommendations were that Mr. Caston change his masturbatory fantasies which he had already instructed Mr. Caston to do. In cross- examination at this hearing, Dr. Posthuma agreed that this instruction came in the one visit that he made to Mr.

Caston in jail. He also recommended that Mr. Caston have available the services of a psychologist to develop his social skills. [ 63 ] For the same sentencing, Dr. Clifford Kerr, a psychiatrist, prepared a pre-sentence report dated December 17, 1984. He too testified at this hearing. The picture presented by the report stands in contrast to that of Dr. Posthuma. It is not nearly as sanguine as Dr. Posthuma’s report. A focus of Dr. Kerr’s report was the treatment needs of Mr. Caston. [ 64 ] Mr. Caston told Dr. Kerr that he was first aroused by young boys when he was about age 13. Dr.

Kerr opined that an onset at that young of an age may result in the person being fixated. Mr. Caston said that he had never been sexually abused. Dr. Kerr described Mr. Caston at his interview as euphoric, that is to say enjoying shocking by expressing his views. Mr. Caston stated that he wanted to be involved in outpatient treatment programs. Dr. Kerr concluded that Mr. Caston has a severe psychosexual problem and a strong homosexual pedophilic drive. Amongst his treatment recommendations, Dr.

Kerr recommended sex offender treatment programming and placement in a highly structured community boarding home as part of a lengthy probation order. [ 65 ] He was released in January 1985 (on three years’ probation) and went to live at Pioneer House again. In addition to his probation terms, the house rules included that he was to never leave the building unescorted. This was later relaxed to permit clinic appointments.

His stay was summarized by Pioneer House staff as follows: “Jim came to Pioneer House this second time already hostile to the program and staff and behavioural and medical treatments for inappropriate sexual behaviours and strict monitoring of social behaviour had little effect. Manipulative behaviours increased under restrictions as did talk about inappropriate feelings for children and his lack of control over such feelings.”

[ 66 ] Mr. Caston left Pioneer House in December 1986 for the Garfield Hotel in New Westminster. At the time he was receiving 300 mg injections of CPA. It will be remembered that he re-offended approximately six months later in May 1987. [ 67 ] As a result of the sentence of probation, Mr. Caston began to attend the Forensic outpatient services as of February 1985. During this time Mr. Caston was attending a social skills program. [ 68 ] In a report dated February 26, 1987, Dr. Kerr summarized Mr. Caston’s progress since his release in January 1985. He stated: Since Mr.

Caston’s release from prison on the 25 th of January 1985 he has been a constant source of difficulty in finding appropriate placements. This is because of Mr. Caston’s poor personal hygiene, his rather obstinate and obstructive behaviour, his lack of participation in programmes, and often the breaking of boarding home or house rules. Mr. Caston has been attending Marianne Tinley’s Social Skills group for over a year, but has shown little or no progress. [ 69 ] In July 1986, Dr. Kerr sought some physiological testing of Mr. Caston in order to establish a baseline prior to administering medication.

The medication anticipated was an anti-androgen medication which would block the effects of testosterone and thereby, ideally, lower the sex drive. The result of the testing was, inter alia , that his testosterone level was at 694 ng/dl. This value was in the normal range. Five months into taking the injections his testosterone was at 420 ng/dl. [ 70 ] Injections of the anti-androgen medication commenced in August 1986 and continued for five years until August 1991. These injections occurred at Mr. Caston’s request. Mr.

Caston expressed that he wanted to take the medication in order to reduce his pedophilic thoughts. At the outset the injections were every two weeks, however, by December 1986 they were increased to weekly. The increase was as a result of Mr. Caston expressing the view that the medication wore off and he would like more frequent injections. He clearly felt for a period of time that CPA was assisting him. In a forensic outpatient note of July 1988 (Exhibit 1, Binder 4, page 201) Mr. Caston reported that CPA helped him. By this time he was approximately two years into his use of CPA. [ 71 ] Dr.

Kerr was asked about the effect of Mr. Caston missing one week of his injections. This issue is important as Mr. Caston missed a week of his injections in May 1987. It is in that week that he offended against J.L. Dr. Kerr opined that missing one injection ‘would not make much of a difference’. In cross-examination, Dr. Kerr agreed that the level of the injection in Mr. Caston would taper off until the next injection. However, he would not expect a major change in the effect of the drug by missing an injection. He did concede that this area was not an area of his expertise. Dr.

Wang, a psychiatrist who has expertise in drug administration in the treatment of sex offenders, testified that he would not expect a total reversal of the treatment effect of 300 mg of CPA if one treatment were missed. Dr. Alina Wydra, a psychologist, spoke with Mr. Caston regarding his 1987 offence. Noting that in the months leading up to the offence he had been looking at baby books and going to the beach to look at children, Dr. Wydra concluded that Mr.

Caston’s problem, “while perhaps exacerbated by missing his medication, is primarily one of accelerating deviant sexual desires.” From this evidence and the evidence as a whole, I have concluded and find as a fact that the one missed injection did not play a significant role in the offence of May 1987. [ 72 ] Mr. Caston told Dr. Levy in 1998 that anti-androgen medication didn’t help, it didn’t stop him from doing anything. This is contrary to what he had said in 1988. It is also contrary to what he told Dr.

Wydra, namely that the medication helped him control his sexual urges and it was his failure to take the medication on one week that led to the offence of May 1987. What Mr. Caston has had to say with respect to medication is of importance to the issue of the utility of medication to his management and future treatment prospects. [ 73 ] During 1987, 1988 and 1989, Mr. Caston was supervised by the Inter-Ministerial Project. That project engaged with individuals in the community in an intensive manner to provide them with extra support. They saw Mr. Caston four times per week. [ 74 ] On September 9, 1987, Dr.

Wydra performed a psychological assessment on Mr. Caston who was awaiting sentencing for his sexual assault offence as it related to J.L. Mr. Caston told Dr. Wydra that he had a 10 year history with approximately 30 male children up to January 1985. Since that time and the date of this offence (May 1987) he had been able to resist his sexual urges. He said that he confessed his actions on this occasion as he had urges to harm the child in order that disclosures by the child would not result in him being discovered and apprehended.

He understood the seriousness of those thoughts. [ 75 ] After reviewing his treatment history, Dr. Wydra concluded with her recommendations by saying, “[e]very effort should be made to provide him with specific and concrete therapy designed to increase his ability to control his sexual urges. Such therapy, in conjunction with his medication, has a good probability of success”. [ 76 ] Dr. Wydra testified at this hearing and was asked what material she had before her at the time of her report. She testified that if she had been told that Mr.

Caston had been told (as he was on two occasions on April 28 and 29 by his probation officer, Fred Hitchcock, and his psychiatric social worker, Karl Friesen) to stay away from J.L., she would ‘absolutely’ have included it in her report. That information is not in her report. [ 77 ] Her report also states that Mr. Caston turned himself in and reported what he had done. Information from witnesses and the police contained within Exhibit 1 is clear that Mr. Caston did not turn himself in.

In coming to this finding of fact, I have taken into account the detailed contemporaneous notes and reports prepared by the police which I find to be both credible and trustworthy. When referred to that information, Dr. Wydra testified that she would have set it out in her report had she received it. [ 78 ] On December 7, 1987, Mr. Caston saw Dr. Peter Johnson, a psychologist, for the first time. Mr. Caston said that he had been sexually assaulted by his mother. Dr. Johnson was of the view that Mr. Caston was trying to create an impression that he was sick and perverted in order to shock him. Dr.

Johnson told him that he did not have to behave that way. In 1988, for a ‘few months’, Mr. Caston continued to be seen by Dr. Peter Johnson. Much of their time was spent on Mr. Caston’s extremely low self-esteem. This was to be the first of two occasions in which Dr. Johnson was involved in the treatment of Mr. Caston, the second commencing in 2004. [ 79 ] In 1988, Mr. Caston wrote his autobiography for Dr. Johnson as a treatment tool. A part of that autobiography was recounting his attraction to the young boy next door who he knew as B., the victim of the 1984 offence. As an insight into Mr. Caston’s thinking,

the autobiography is worth quoting at length. The spelling mistakes are not corrected, however, the proper word is placed in brackets. Mr. Caston wrote: “At the time of the affense [offence] my impulsive fantasies were how I was going to play around with B. and at that time they were strong and I could not contorl [control] them see for so many times in 1983 B. running about naked and just to play and crese [caress] his nice little dink and make it hard over and over I do not have these fantasies enermore [anymore].

First of all I thouth [thought] he would like it and would be willing to let me play with his dink I thought it would make him feel good inside so I keeped [kept] watching him to see if eneybody [anybody] was aware of were [where] he was I wanted so bad to masterbate [masturbate] him it hurt not to think about it and I know it might be the last chance I would get to ever get that close to him. Shue [Sure] I’d seen him many time with an hard on and know how long his dink could get but I only could look from a distance and and I wanted a closer look.

I kept wait for the right moment to get up the couge [courage] to get him over to my side and when the time was right I did. The rest of this story is in my file.” Dr. Johnson testified that the autobiography showed a clear capacity by Mr. Caston to plan his behaviour. [ 80 ] In August 1988, Mr. Caston was referred to Dr. Conrad Bowden as part of his probation order. The purpose of the assessment was to aid in future treatment. [ 81 ] At the time, Mr. Caston was still taking 300 mg of CPA. [ 82 ] Testing revealed a full scale IQ of 77, meaning that Mr. Caston performed at a borderline level of intelligence.

However, Mr. Caston, in Dr. Bowden’s opinion, had the capacity to understand the treatment he was offered. Many of the neuropsychological test results reflected an impairment. On the MMPI (Minnesota Multiphasic Personality Inventory) Mr. Caston produced a profile strongly suggestive of schizophrenia or likely to be characterized as a chronic marginal schizoid adjustment. He described the traits to be associated with such a profile by saying, “[t]hese individuals are chonically [sic] maladjusted and any form of psychological intervention will be of limited benefit.” [ 83 ] Dr.

Bowden continued his testing with the MCMI (Millon Clinical Multiaxial Inventory) which he concluded is in strong agreement with the MMPI. He went on to say of Mr. Caston, “[h]is impulse control is thought to be very tenuous and the strength of his internal fantasies and impulses and tendency towards autistic and bizarre thinking is likely to continue to get him into trouble”. He opined that psychological intervention would be of limited benefit. [ 84 ] Dr. Bowden testified in this hearing and in cross-examination, Dr. Bowden acknowledged that in the 1980’s treatment for sex offenders was very much a new field.

He would have noted the treatment referred to in Dr. Wydra’s report. [ 85 ] Dr. Mark Levy, a psychiatrist, started treating Mr. Caston around October 1988 by continuing Dr. Kerr’s prescription of CPA. Dr. Levy met with Mr. Caston weekly to monitor his medications but also to provide him with some respite from his loneliness. On July 29, 1991 (at a time in which he was not on any court order) Mr. Caston was seen by Dr. Levy for the last time for approximately 7 years. Dr. Levy noted that Mr. Caston had been attending the Adult Forensic Outpatient Clinic since 1985. Mr.

Caston’s diagnosis as stated in his report of February 11, 1992 was pedophilia, dysthymia (i.e. chronic depression) and personality disorder with anti-social and borderline traits. Dr. Levy referred to Mr. Caston taking CPA (since 1986) and that, “[i]n spite of the former, Mr. Caston continued to admit to recurrent sexual fantasies involving children, but said he did not act on them because he was afraid of being caught and labelled as a dangerous offender.” Dr. Levy concluded by noting that Mr.

Caston continued to admit having recurrent thoughts of sex with children in order to gain an erection and orgasm at least once a day. Mr. Caston stopped taking CPA in August 1991. A log of every injection was contained in Exhibit 1. [ 86 ] In his testimony at this hearing, Dr. Levy expanded on what is meant by anti-social in the clinical context. He gave evidence that those traits include a lack of respect for rules, lying and not worrying about the consequences. Those with anti-social traits tend not to learn as much from experiences.

The treatment prospects for people such as this are not great: ‘you can only smooth the rough edges’. [ 87 ] This was to be the first of two dealings Dr. Levy had with Mr. Caston, the next being in 1998. iii) 1992-1998 [ 88 ] Mr. Caston volunteered to work with the Forensic Outpatient clinic in 1994. He was under no court order at the time. The records contained within Exhibit 1 show that he began attending group therapy on January 10, 1995 attending twice per week until June 1995. This group therapy focused on victim empathy and his crime cycle.

The defence submits that this voluntary engagement with treatment by Mr. Caston is very important to both the issues of designation and penalty. [ 89 ] It will be remembered that I have found as a fact that Mr. Caston during this time (approximately 1996) offended against N.T.W. He was receiving no treatment or supervision at the time. [ 90 ] As has been noted, Mr.

Caston was arrested in 1997 on child pornography charges and released with conditions, inter alia , to have no contact with anyone under 18 years of age or go anywhere where anyone under the age of 18 could reasonably be expected to be present. iv) 1998-2005 [ 91 ] On June 16, 1998, Dr. Levy prepared a psychiatric report on Mr. Caston as he awaited sentencing on his child pornography conviction. Dr. Levy reviewed Mr. Caston’s history commencing with his childhood. This review included group home records, Riverview Hospital records, and other treatment centres.

As has been noted, during his stay at Riverview (1980-1982) Mr. Caston was diagnosed as suffering from pedophilia. Dr. Levy concluded from those records that Mr. Caston was able to control his behaviour to a certain extent as he knew how to behave in front of staff members. However, the early onset of behavioural problems was a poor prognostic sign as the behaviours become hard to change. Mr. Caston told Dr. Levy that what he had done in his past could have caused psychological damage. He admitted that he still had fantasies about children several times a week. Dr.

Levy concluded that his “working diagnosis is of Paedophilia, homosexual sub-type.” He noted Mr. Caston’s periodic alcohol abuse. As to the risk posed by Mr. Caston, Dr. Levy concluded: “On the positive side, although he may be personality disordered, he is not a psychopath and he now has an adult sexual partner. Other positives include the lack of physical harm to past victims and no escalation in the frequency or severity of

sex offenses. Weighing these factors I would see him as moderate risk even without treatment.” [ 92 ] When asked during his testimony about treating Mr. Caston, Dr. Levy testified that treatment implies successful change. In his view Mr. Caston’s attraction to children is not to be treated but it is to be managed. That may be done through, first, medication and second, psychological techniques. He was of the view that Mr. Caston would not benefit from psychotherapy because he did not have the capacity to look introspectively. [ 93 ] On July 16, 1998, Mr.

Caston began probation supervision by the Vancouver Specialized Supervision Unit pursuant to his three year order from the child pornography conviction. That unit worked with sexual offenders. Ms. Wendy Tobin had been a member of it for three years by the time she met Mr. Caston. Ms. Tobin’s supervision of Mr. Caston was to continue for four years and nine months until April 2003. Most of Mr. Caston’s reporting to her was weekly or bi-weekly although it was every three weeks for the better part of 1999.

His hygiene was an on-going issue both at his residence and in his smell at meetings. [ 94 ] While she was supervising him, Mr. Caston committed his January 25 (mischief) and January 31 (sexual interference), 2000 offences. In the previous two months (November and December 1999) Mr. Caston reported that he was staying away from children and was “not even tempted”. On January 18, 2000, he repeated that he was staying away from children. [ 95 ] During her time supervising Mr.

Caston, she prepared pre-sentence reports on November 28, 2000, March 21, 2001 and April 3, 2003. [ 96 ] Her first pre-sentence report (for the January 2000 offence) summarizes Mr. Caston’s response to supervision for the previous, approximately, two years and is worth quoting at length: Prior to his re-offence January 31, 2000 he appeared to be responding well to probation supervision and to be complying with his order. He said all the right things, that he wanted to do well and not reoffend.

His conditions were reviewed regularly and he could list off his high risk situations and interventions (such as avoiding areas where children play, not viewing or collecting pornography or photographs of children). On one notable and praiseworthy occasion in January 1999, Mr. Caston came into his session with two pages torn out of a Maclean’s magazine from our office waiting room. The photographs were of naked and scantily clad small boys, victims of a third world disaster. Mr.

Caston pointed out how these images could be a “trigger” for someone like himself, and he noted the importance of giving the pages to me and not collecting them for his own use like he had in the past. [ 97 ] She then went on in the pre-sentence report to describe his behaviour during the preparation of the report: “He has been manipulative, provocative, and self-focused”. He later said that he was remorseful for the offence but, when probed, any remorse seemed unclear. Ms. Tobin testified that his use of the word remorse was more as if it was a word that he had heard elsewhere.

He stated that if he had not been caught he probably would have masturbated the child N.T.W. [ 98 ] On October 23, 2000, Mr. Caston was seen by Dr. Karl Williams for a psychological assessment prior to sentencing on the January 31, 2000 sexual interference charge. As part of his assessment Dr. Williams administered four standardized psychological tests. In his report and after summarizing Mr. Caston’s history and the circumstances of the sexual offence for which he was awaiting sentencing, Dr. Williams expressed his views. He stated that Mr.

Caston possessed a higher level of functional intelligence than was apparent initially. He described Mr. Caston as “a shrewd man in certain respects, capable of adjusting his presentation somewhat to create a desired effect.” [ 99 ] Mr. Caston stated that his sexual preference is for pre-pubescent males. Dr. Williams, on the basis of his testing and his own clinical judgment, concluded that Mr. Caston is at high risk of sexual recidivism. He considered Mr. Caston intelligent enough to benefit from involvement in intensive sexual offender and related counselling. [ 100 ] In cross-examination at this hearing, Dr.

Williams agreed that gaps in offending impacts the current risk of re-offending. However, the psychological testing he did, did not take into account Mr. Caston’s gaps in offending. [ 101 ] After his sentencing in December 2000, Ms. Tobin continued to see Mr. Caston weekly, who was ‘above average’ in his reporting. On more than one occasion Mr. Caston described how long since he had offended against a child, for example saying on February 15, 2001, “it’s been almost 400 days since I had sex with a kid”. [ 102 ] On August 4, 2001 Mr. Caston was seen in Stanley Park staring at 40 to 50 small children.

When confronted on August 16, Mr. Caston denied he had been at the park and said he was home all week. Having reviewed the records and listened to the evidence of Ms. Tobin, I am satisfied that Mr. Caston’s denial was untrue. [ 103 ] Ms. Tobin and her office ran a relapse prevention program in 2001. Due to hygiene issues of Mr. Caston, he was unable to function in a group setting and did not attend the program. This was remarked on by Ms.

Tobin in her March 2001 pre-sentence report where she said that although he “maintains that he ‘would love to be’ in a relapse prevention group for sex offenders, he refuses to take the necessary personal hygiene steps to get into such a group”. On October 12, 2000, Mr. Caston stated that his poor hygiene was intentional. [ 104 ] Part of her engagement with Mr. Caston was to have him prepare a Relapse Prevention Plan in which he would set out his own risks, how he might change behaviour and his understanding of his offence. Ms. Tobin testified that “looking at it now, I am impressed”. Mr.

Caston writes in his plan that his risks are being around kids, parks, pools, or if left alone with a kid. He writes that his red flags/danger signs are “thinking about kids all the time, looking at kids pants to see if they got a hard on, getting hard on over kids around me.” [ 105 ] Mr. Caston prepared a second Relapse Prevention Plan dated October 11, 2001 that is much more detailed. He writes for a full page of his offence cycle (“it takes a little time to see if the couse [coast] is clear and then I get nevese [nervous] and my heart speeds up

and then I have to find out if the boy will let me see his dink and if he does I go for it”), his thoughts at the time (“just glad to have a boy to masterbate [masturbate] at the time and hope no one finds out about it and hope I can do it for a long time and hope the boy will not tell on me”) and his fantasies (“we live in a world were [where] you can have sex with kids when ever you want”). When he wrote about his emotional reactions during offending he wrote, “all the time I know I should not be doing it but I don’t care I’m getting what I want out of the boy sex!!!” [ 106 ] On October 24, 2001, Mr.

Caston met with Ms. Tobin and discussed that his offence was 632 days ago. “I could have had all day with him”. “It could have been amazing”. Ms. Tobin said that Mr. Caston ‘lit up’ as he discussed his offence. He stated that 18 months old is his favourite age and that he masturbates daily to fantasies of boys aged 18 months to four years. [ 107 ] Through 2002, Mr. Caston did not take any group therapy, either because he was not interested or he was not accepted for the group. In December he expressed that he did not want to take ‘sex reduction medication’. In the summer of 2002, Vancouver Police picked Mr.

Caston up at the Stanley Park water park after complaints from parents that he had been frequenting this area. Small children were playing as close as ten feet from Mr. Caston. On October 17, 2002, Mr. Caston admitted to Ms. Tobin that he had been attending the water slide regularly before he was picked up. [ 108 ] Near the end of her time in seeing Mr. Caston in 2003, Ms. Tobin asked him, “[w]hat’s changed in the last ten years in your risk level?” Mr. Caston answered, “[n]ot much.” He described three year old boys as “morsels”.

In the April 2003 pre-sentence report it is stated, “[w]hen queried for this report as to how he had been spending his time lately, Mr. Caston refused to answer.” She concluded that his “response to probation supervision has not been particularly satisfactory. . .” [ 109 ] In late 2002, Mr. Caston was seeing a psychiatrist, Dr. Tomita. On November 22, 2002, Dr. Tomita noted that Mr. Caston declined another appointment: “not motivated to address/control pedophilia”. [ 110 ] In October 2002, Mr. Caston’s file was referred to Dr. Peter Johnson, a psychologist, to determine if Mr. Caston could attend group therapy.

It turned out that there was not funding for group therapy. Mr. Caston did, however, take the personal hygiene steps including washing his clothes so that he could see Dr. Johnson. Dr. Johnson’s evidence is contained in his notes of his meetings with Mr. Caston and in his testimony at this hearing. Dr. Johnson testified that he would likely have recommended group therapy for Mr. Caston as the personalities of the group can be effective in calling each other out. “They know the tricks of the trade” testified Dr. Johnson. Instead Dr. Johnson saw Mr. Caston one on one in early 2003 for six appointments.

At those appointments Mr. Caston was eager to talk. Dr. Johnson described Mr. Caston’s cognitive distortion as seeing young boys as sexual and as trying to flirt with adults: “He is a very psychologically damaged man”. [ 111 ] Mr. Caston was incarcerated for a part of 2003 due to his public mischief conviction and reconnected with Dr. Johnson on his release. [ 112 ] In March 2004, Mr. Caston began to see Dr. Peter Johnson again. Dr. Johnson saw Mr. Caston roughly bi-weekly for the next year. Dr. Johnson continued to see Mr. Caston on what was for the doctor a pro bono basis and for Mr.

Caston was a voluntary basis as of November 2004. Dr. Johnson was uncertain in his testimony as to how long those meetings with Mr. Caston of more than a decade earlier continued but agreed that it may have been until he retired in December 2006. This seems unlikely given the contemporaneous record contained in the Closing

Summary of November 15, 2005 which specifically refers to Mr. Caston no longer seeing Dr. Johnson as of that date. In any event, the brief Closing

Summary concludes with the following: “It would be hard to look at specific gains in terms of Mr. Caston’s progress, though he has stayed primarily out of offending.” [ 113 ] Regardless of the exact duration, Dr. Johnson was of the view that there was a strong rapport or therapeutic alliance between himself and Mr. Caston. Mr. Caston’s perspective appears to be somewhat different. He told Dr. Thomas in 2015 that he and Dr. Johnson were ‘chums touching base’ and that the deviant sexual interests were not targeted. [ 114 ] During the time of seeing Dr. Johnson, the clinical notes have repeated references to Mr.

Caston’s cognitive distortions, i.e. that some children are quite seductive and some enjoy the abuse. This was something that Dr. Johnson worked on with Mr. Caston. Nevertheless, Dr. Johnson testified that he never got a sense that Mr. Caston developed any empathy for children nor that Mr. Caston moved from the belief that children enjoyed sexual relations with adults. Dr. Johnson worked with Mr. Caston to remind him of his goal to stay out of jail. Part of that work operated on the basis that if Mr. Caston masturbated to his fantasies of children, his urges were reduced.

As such this masturbatory practice, in Dr. Johnson’s view, was an alternative to him assaulting children. This, of course, constituted a significant contrast with the evidence of Dr. Thomas and her advice to Mr. Caston in 2015. [ 115 ] In cross-examination, Dr. Johnson agreed that Mr. Caston seemed determined not to reoffend. To Dr. Johnson, Mr. Caston’s attention to the number of days since his last offending was a way of focusing on not reoffending. v) 2005-2013 [ 116 ] This period of time is most notable for the absence of any information as to the behaviour of Mr. Caston.

What is certain is that during this period of time there is no evidence of criminal behaviour on the part of Mr. Caston despite the absence of any supervision or treatment. vi) 2013-2016 [ 117 ] On June 2, 2013, L.D., a young boy of seven years of age and diagnosed with autism, went into the backyard of his home to play after dinner. Unbeknownst to him, Mr. Caston was on the property and behind a garage. Mr. Caston called L.D. over to him. Moments later, L.D. told his mother about touching a penis. It was never admitted by Mr. Caston then or during these proceedings that he touched L.D.

Due to the severity of his autism, a statement was not obtained from L.D. Shortly after L.D. had gone into the backyard, his mother and then his father came outside. L.D.’s father found Mr. Caston, who was known to him, crouched behind the garage. The family had known Mr. Caston as a result of their monthly attendance at a clothing optional swim at Templeton Pool. There would be, in addition to L.D., unclothed children at the monthly swims.

[ 118 ] Mr. Caston was arrested. On his arrest, Mr. Caston was found in possession of a pink dildo and nudist magazines which contained photographs of pre-pubescent children. [ 119 ] On August 2, 2013, Mr. Caston was granted bail on the criminal charges arising from the events of June 2. The eight conditions on his recognizance included terms that he not attend places where children may congregate and that he was not to be alone in the presence o f a child under the age of eighteen years. A review of the logs of his bail supervision show that Mr.

Caston reported as directed and engaged with the bail supervisor. [ 120 ] On the basis of the allegations as they relate to L.D., Mr. Caston entered into a two year s. 810.1 fear of offending against a child recognizance on February 26, 2015. The twelve terms of that recognizance included terms that he have no contact with L.D.’s family, not to go to New Westminster, or to any place where children may be found. Specifically he was not to attend at Templeton Pool. He was to report at least every week to a probation officer.

A counselling condition was included. [ 121 ] I bear in mind that there was no admission by Mr. Caston on entering into that recognizance that he had touched L.D. I also note that the recognizance, not being a criminal offence, ought not to be considered as part of any ‘pattern’ that will be discussed later in the ‘Designation as a Dangerous Offender’

section of these reasons. [ 122 ] During the term of this recognizance, Mr. Caston saw his probation officer, Rita Dhaliwal, and a treating psychologist, Dr. Thomas. I will first summarize the evidence of Dr. Thomas. Dr. Thomas was qualified to give expert evidence in forensic psychology, including diagnosis of mental health disorders, identification of the elements of an offender’s past sexual behaviour and risk factors, the assessment of risk and treatment interventions for sexual offenders to address and manage their risk while in custody and in the community. [ 123 ] As Dr.

Thomas’ viva voce evidence covers an extended and very recent portion of Mr. Caston’s treatment, it will be summarized in considerable detail. [ 124 ] Dr. Thomas’ involvement with Mr. Caston began in May 2015 and continued until the offence of February 2016. On May 29, 2015 she interviewed Mr. Caston. Her purpose in doing so was to determine Mr. Caston’s ability to undergo treatment particularly whether he could benefit from a group sex offender treatment program. She was not performing a risk assessment.

Prior to the interview, she had read his forensic records which went back to the 1980s. [ 125 ] In speaking with him, Dr. Thomas asked Mr. Caston about his offending behaviour. When describing the sexual interference conviction from 2000, “his affect was bright as he described the incident, and he seemed to be reminiscing as he did so.” She testified that it was as if it was a good memory. Mr. Caston later reported fantasizing about this victim “chuckling as he shared this”. [ 126 ] Dr. Thomas attempted to determine if Mr. Caston could benefit from group therapy. Mr.

Caston had expressed his desire to attend sex offender programming. As a result of his learning difficulties and his slowness in reading and writing, however, she concluded that he was not suitable for group therapy. In evaluating what treatment was to have a greater chance of managing Mr. Caston, Dr. Thomas looked to what motivated him. Specifically, she looked to whether he was morally (i.e. it causes harm to others) or socially (i.e. it is not socially acceptable, which is society’s problem) conflicted about his behaviour. His statement, “I like kids...

I’d have a harem of boys if I could… I wish I was born at a different time, like ancient Rome” therefore illustrated that Mr. Caston was socially conflicted. She saw no evidence that he was morally conflicted. The importance of this to her was that those who are socially conflicted tend to have a higher risk of recidivism. Also on the issue of motivation, Dr. Thomas attempted to determine what would motivate Mr. Caston not to reoffend. Were his motivations externally (i.e. he did not want to go to jail or be deemed a dangerous offender) or were they internally (i.e. I don’t want to do this to anyone) motivated?

In an ideal situation both motivations would be present. She concluded that his motivation was almost exclusively externally motivated. The significance of that conclusion is that once external motivators do not exist, the behaviour comes back. [ 127 ] Dr. Thomas also discussed with Mr. Caston his use of fantasies of young boys to which he masturbates. She testified that there is a strong correlation between that practice and the behaviour a person exhibits.

That correlation had not always been appreciated, as it was thought that relying on fantasies could act as a release of sexual energy and reduce the risk of offending. In current thinking, however, fantasies are considered a pathway to offending and have been so considered for the last approximately ten years. As was summarized earlier, Dr. Johnson testified to not discouraging Mr. Caston more than ten years ago from using fantasies of boys in the context of his treatment of Mr. Caston. [ 128 ] Dr. Thomas took from the materials before her that Mr. Caston’s pedophilia was chronic and severe.

She concluded that his interest in boys is entrenched making it more difficult to change. [ 129 ] She also conducted psychological testing. That testing sought to measure his static (i.e. unlikely to change over time) and dynamic (i.e. capable of change over time) risk factors. For the static risk factors, Dr. Thomas administered the STATIC-99-R and for the dynamic risk factors she administered the STABLE-2007. However, Dr. Thomas pointed out that her report of May 2015 was not a risk assessment but only to determine Mr. Caston’s suitability for group sex offender treatment.

Nevertheless, the result for the STATIC-99-R was a high risk and for the STABLE-2007 his risk was, again, high. The combined result of the two tests was that Mr. Caston was considered a very high risk of re-offence. [ 130 ] Dr. Thomas was of the view that medication would be helpful to him and that there were psychological strategies that could be applied to help him manage his interest and reduce his risk of re-offence. As a result, a three-pronged approach was adopted for Mr. Caston: first, he would be prescribed medication by Dr.

Wang; second, she would provide him with cognitive behavioural therapy; and, third, he would be supervised by his probation officer Ms. Dhaliwal. [ 131 ] For her part, Dr. Thomas was of the view that she had developed some rapport with Mr. Caston. In her opinion, and based on research, it is established that rapport is the most powerful predictor of outcome. [ 132 ] It should be noted that there was to be a referral of Mr. Caston to Dr. Lopes in Surrey for one on one counselling as Dr. Lopes

has expertise in dealing with lower functioning sexual offenders. However, Mr. Caston’s s. 810.1 recognizance prohibited from him going to New Westminster and, accordingly, his counselling was done by Dr. Thomas who does not have a specialty in working with low functioning offenders. His probation officer, Rita Dhaliwal, testified that she could not remember if consideration was given to changing the recognizance to permit Mr. Caston to attend to Dr. Lopes. [ 133 ] With that approach in place, Dr. Thomas embarked on 13 sessions with Mr. Caston over approximately nine months commencing in July 2015.

It is not necessary to summarize each of those sessions although certain themes do stand out on review of Dr. Thomas’ notes. First is Mr. Caston’s openness in talking about his offending and his preference for very young children. His discussion of his offending was done with great enjoyment, “like someone recounting war stories”. Second is the existence of “entrenched cognitive distortions”, namely Mr. Caston’s view that children were interested in him and were open to sexual activity.

Third is an obsessional component to his sexual preoccupation with children evidenced by his daily masturbation and his obsessive fantasies about young children during ejaculation. Finally, the sessions do show some effort by Mr. Caston to cooperate in his treatment by taking medication and adopting behavioural skills that were discussed including actively staying away from children. However, Dr. Thomas noted that it was rare that Mr. Caston would apply the suggestions to his behaviour. [ 134 ] The sessions, however, were occurring less frequently into the winter months changing from weekly to monthly meetings.

A considerable amount of time was spent on Mr. Caston creating a self-management plan to assist him in staying out of trouble. [ 135 ] During his sessions, Mr. Caston indicated to Dr. Thomas a willingness to start on anti-androgen medication, such as CPA again. As a result, Dr. Thomas referred Mr. Caston to Dr. Wang, a psychiatrist with expertise in the use of drugs to manage sex offenders. [ 136 ] That referral resulted in an initial consultation on July 31, 2015. Dr. Wang testified that at that consultation, Mr. Caston was adamant that he was not going to take anti-androgen medication.

He gave as a reason, the side effects he experienced in the 1980s. [ 137 ] Mr. Caston told Dr. Wang that he was masturbating daily to thoughts of pre-pubescent males, including the victim of his 2000 offence, N.T.W. To Dr. Wang, this indicated that Mr. Caston did not feel badly for his past offence. He opined that feeling bad regarding offending behaviour may operate as a deterrent and accordingly would reduce the risk of re-offence. Mr. Caston did not feel bad about his prior offence. [ 138 ] Also, Dr. Wang concluded that “Jim’s judgment is rated as chronically impulsive and his insight as limited”.

The significance of this conclusion to Dr. Wang is that a person with less impulse control is more likely to re-offend. As to limited insight, Dr. Wang’s opinion was that Mr. Caston does not have a full appreciation of the harm of sexual offending. This too increases the risk of re-offence. In assessing risk for Mr. Caston, Dr.

Wang identified seven factors: past history of sexual offences (“the best predictor of future behaviour”); chronic deviant sexual arousal (“a very important risk factor”); anti-social personality (“a well-established risk factor in the literature”); negative attitudes; lack of remorse; attitudes condoning sexual offending (“also well established in the literature on re- offending”); and impulsivity. [ 139 ] Dr. Wang, along with Dr. Murdoch in 1979, Dr. Posthuma in 1984 and Dr. Levy in 1992, became the fourth tre

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