2022 QCCA 852, 2022 QCCA 852

Unofficial English Translation of the Judgment of the Court Élizée c. R. 2022 QCCA 852 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007307-208 (500-36-008888-185) DATE: June 14, 2022 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. GENEVIÈVE MARCOTTE, J.A. SUZANNE GAGNÉ, J.A. GEORGE CHARLES ÉLIZÉE APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT WARNING : To protect the identity of the victims, the Ontario Superior Court made an order directing that any information that could identify victims must not be disclosed in the course of the proceeding. [ 1 ] The appellant appeals from a judgment rendered on February 25, 2020, by the Superior Court, Criminal Division, District of Montreal (the Honourable Lyne Décarie), dismissing his application for a reduction in the period of long-term supervision. [ 2 ] For the reasons of Gagné J.A., with which Savard C.J.Q. and Marcotte J.A., agree, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] REVERSES the judgment of the Superior Court; [ 5 ] GRANTS the appellant’s application for a reduction in the period of long-term supervision; [ 6 ] TERMINATES the period of long-term supervision as of the date of this judgment.

MANON SAVARD, C.J.Q. GENEVIÈVE MARCOTTE, J.A. SUZANNE GAGNÉ, J.A. Mtre Rita Magloé Francis SURPRENANT MAGLOÉ AVOCATS For the appellant Mtre Marie-Ève Mayer DIRECTIOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent

Date of hearing: December 8, 2021 REASONS OF GAGNÉ, J.A. [ 7 ] The appellant is subject to long-term supervision that is set to end on April 11, 2023.

Décarie J. of the Superior Court dismissed the appellant’s application to terminate the supervision period. [1] She concluded that he had failed to meet his burden of proving that he “no longer presents a substantial risk of reoffending and thereby being a danger to the community”. [2] [ 8 ] The debate on appeal concerns the demonstration that must be made by an offender who is subject to long-term supervision and who seeks a reduction in the period of supervision or to terminate it pursuant to s. 753.2(3) Cr.

C. [ 9 ] For the following reasons, I am of the opinion that the judge applied the wrong test and that her assessment of the evidence of the risk of reoffending is vitiated by reviewable errors. Given the evidence as a whole and the remaining period of supervision, I would terminate the long-term supervision from the date of the judgment of this Court. I.

Background [ 10 ] In 2005, an Ontario jury found the appellant guilty of criminal harassment, assault causing bodily harm (two counts), forcible confinement, attempted extortion of an amount of money using a firearm, possession of a weapon for a dangerous purpose, and unauthorized possession of three restricted weapons. [ 11 ] These offences were committed in the context of domestic violence. The appellant, who was then in his early twenties, persuaded his intimate partner to work as a nude dancer in bars.

Their relationship slowly transformed into one of sexual exploitation and physical and verbal abuse. [ 12 ] After a remand for assessment (uncontested by the appellant) and the filing of the report under s. 752.1(2) Cr.

C. , the Crown requested that the appellant be found to be a dangerous offender and that he receive a custodial sentence in a penitentiary for an indeterminate period. [ 13 ] In a judgment rendered in January 2007, Rutherford J. of the Ontario Superior Court of Justice concluded that the appellant met the conditions to be found to be a dangerous offender, but that there was a reasonable possibility that the threat could be controlled in the community. [3] Using his discretion, [4] he found the appellant to be a long-term offender, sentenced him to a total prison sentence of five years, [5] and ordered that he be subject to long-term supervision for a period of ten years. [ 14 ] This supervision started on or about April 25, 2012.

Over the following years, the appellant was sentenced to terms of imprisonment for breaches of the long-term supervision order: in May 2013, for failing to clearly inform his supervision team of his location while he was in Ottawa trying to contact his son; in June 2014, for having a cellular telephone in his possession and for failing to immediately disclose his relationship with a woman; in October 2018, for acquiring a car without the authorization of his supervision team, in violation of the rules of the halfway house. [6] Long-term supervision was also suspended on several occasions pursuant to s. 135.1 of the Corrections and Conditional Release Act [7] (suspensions that were later cancelled), such that, since the beginning of the long-term supervision period, the appellant has been incarcerated for a total of 1,469 days. [ 15 ] Moreover, over the years, the appellant has successfully completed several rehabilitation programs, specifically: • In February 2008, the High Intensity Family Violence program at the Kingston Institution; • In October 2013, the VPP-M violence prevention program in the Warkworth Institution; • In October 2017, the multi-target maintenance program; • In December 2017, the community program. [ 16 ] Since the summer of 2015, he has been in a relationship with A.C., a woman his age, whom he met at a wedding.

She lives in City A, in British Columbia. She comes to see him in Montreal two or three times a year. She is aware of his prior convictions and his status as a long-term offender. [ 17 ] The couple plans to move in together and start a family in Vancouver. According to the assessment report of Dr. Louis Morissette, [8] which will be discussed below, the appellant and Ms. C. call each other almost every day and have a long-distance relationship.

They sometimes have [ translation ] “heated exchanges”, but [ translation ] “return to the foundations of communication as he was taught in the programs in which [the appellant] took part”. [ 18 ] Ms. C. claims [ translation ] “that she has never felt in danger with [the appellant]” and that he has [ translation ] “never been threatening or intimidating, be it verbally or physically” toward her. [ 19 ] Dr. Randolph Stephenson assessed the appellant on April 9, 2018.

After several tests and clinical interviews, he concluded that the appellant presented [ translation ] “a moderately low risk of reoffending violently and a low risk of reoffending with domestic

violence”. According to him, this risk level could continue to abate if the appellant begins psychotherapy. [ 20 ] On April 17, 2018, the appellant filed an application for a reduction in the period of long-term supervision. On September 18, 2018, the Superior Court ordered the offender to be remanded for assessment. [ 21 ] The assessment report by the Institut Philippe-Pinel was filed on January 22, 2019. According to Dr. Morissette, who met with the appellant on two occasions and with Ms.

C., the appellant no longer seems to [ translation ] “correspond to the dangerous offender or long-term offender designation”. [ 22 ] In the meantime, on November 8, 2018, the Parole Board of Canada (the “Board”) ruled on the long-term supervision conditions imposed on the appellant. It modified some of them, but most remained unchanged. Based on a psychological assessment report from April 2008, the Board considered that the appellant still had a substantial potential for violence. [ 23 ] The hearing of the application took place on May 21, 2019.

The parties filed several documents, including the assessment reports of Dr. Stephenson and Dr. Morissette. Only the latter testified. [ 24 ] The appellant is now 42 years old. II. Judgment under appeal [ 25 ] After an overview of the background, the judge considered the criterion set out in s. 753.2(3) Cr. C. and the notion of risk of reoffending. Referring to the judgment in J.W.R. v.

British Columbia (Attorney General) , [9] she concluded that the “[the appellant] must establish on a balance of probabilities that a material change in circumstances has occurred since the period of supervision was imposed that, if known at the time, would necessarily have resulted in different terms”. [10] [ 26 ] She then listed the criteria that, in her view, must be considered: [ translation ] [23] The Court considers that it must take into account several factors in its assessment, not only the result of one or two tests. [24] The results obtained in tests performed more recently should be considered.

However, it would be inappropriate, even reckless, not to also take into account other factors, such as prior convictions, behaviour during the period of incarceration, behaviour during the supervision period, all of the tests performed, and the reports of the Parole Board of Canada and of Correctional Service Canada. [11] [ 27 ] In analyzing these factors, the judge cited long excerpts from the Board’s decision of November 8, 2018.

While recognizing certain positive aspects, she noted that the appellant’s behaviour during the long-term supervision period had not been exemplary. [12] [ 28 ] She summarized the assessment reports of Dr. Stephenson and Dr. Morissette and the results of the tests performed on the appellant, including the PCL-R, the VRAG, and the SARA tests. She refused to nuance the two first tests (the PCL-R and the VRAG), despite the experts’ explanations that these actuarial tools essentially rely on static factors.

We will revisit this. [ 29 ] Using other excerpts from the Board’s decision, the judge noted that no member of the Board or parole supervisor supported the appellant’s application. [ 30 ] As stated above, the judge concluded that the appellant failed to meet his burden of proving that he “no longer presents a substantial risk of reoffending and thereby being a danger to the community”. [13] III.

Issues [ 31 ] The appellant raises three issues, which I will reformulate as follows: • What is the applicable test for an application for a reduction in the period of supervision or for its termination under s. 753.2(3) Cr. C. ? • Did the trial judge commit palpable and overriding errors of fact in her assessment of the evidence of the risk of reoffending? IV. Analysis A. The notion of substantial risk of reoffending [ 32 ] The notion of substantial risk of reoffending is at the heart of the long-term offender regime. It is found in s. 753.1(1) and (2) and s. 753.3(3) Cr. C. : 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that 753.1

(1) Sur demande faite, en vertu de la présente partie, postérieurement au dépôt du rapport d’évaluation visé au paragraphe 752.1(2), le tribunal peut déclarer que le délinquant est un délinquant à contrôler, s’il est

(

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

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

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

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (

a) the offender has been convicted of an offence under

section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography),

section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or

section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (

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 a likelihood 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 convaincu que les conditions suivantes sont réunies :

a) il y a lieu d’imposer au délinquant une peine minimale d’emprisonnement de deux ans pour l’infraction dont il a été déclaré coupable;

b) celui-ci présente un risque élevé de récidive;

c) il existe une possibilité réelle que ce risque puisse être maîtrisé au sein de la collectivité.

(2) Le tribunal est convaincu que le délinquant présente un risque élevé de récidive si :

a) d’une part, celui-ci a été déclaré coupable d’une infraction visée aux articles 151 (contacts sexuels), 152 (incitation à des contacts sexuels) ou 153 (exploitation sexuelle), aux paragraphes 163.1(2) (production de pornographie juvénile), 163.1(3) (distribution de pornographie juvénile), 163.1(4) (possession de pornographie juvénile) ou 163.1(4.1) (accès à la pornographie juvénile), aux articles 170 (père, mère ou tuteur qui sert d’entremetteur), 171 (maître de maison qui permet des actes sexuels interdits), 171.1 (rendre accessible à un enfant du matériel sexuellement explicite), 172.1 (leurre) ou 172.2 (entente ou arrangement — infraction d’ordre sexuel à l’égard d’un enfant), au paragraphe 173(2) (exhibitionnisme), aux articles 271 (agression sexuelle), 272 (agression sexuelle armée), 273 (agression sexuelle grave) ou 279.011 (traite de personnes âgées de moins de dix-huit ans), aux paragraphes 279.02(2) (avantage matériel — traite de personnes âgées de moins de dix-huit ans), 279.03(2) (rétention ou destruction de documents — traite de personnes âgées de moins de dix-huit ans), 286.1(2) (obtention de services sexuels moyennant rétribution — personne âgée de moins de dix-huit ans), 286.2(2) (avantage matériel provenant de la prestation de services sexuels d’une personne âgée de moins de dix-huit ans) ou 286.3(2) (proxénétisme — personne âgée de moins de dix-huit ans) ou a commis un acte grave de nature sexuelle lors de la perpétration d’une autre infraction dont il a été déclaré coupable;

b) d’autre part : (

i) soit le délinquant a accompli des actes répétitifs, notamment celui qui est à l’origine de l’infraction dont il a été déclaré coupable, qui permettent de croire qu’il causera vraisemblablement la mort de quelque autre personne ou causera des sévices ou des dommages psychologiques graves à d’autres personnes, (ii) soit sa conduite antérieure dans le domaine sexuel, y compris lors de la perpétration de l’infraction dont il a été déclaré coupable, laisse prévoir que vraisemblablement il causera à l’avenir de ce fait des sévices ou autres maux à d’autres personnes. 753.2 …

(3) Le délinquant soumis à une surveillance de longue durée peut — tout comme un membre de

similar offences. 753.2 …

(3) An offender who is required to besupervised, a member of the Parole Board ofCanada or, on approval of that Board, theoffender’s parole supervisor, as defined insubsection 99(1) of the Corrections andConditional Release Act, may apply to asuperior court of criminal jurisdiction for anorder reducing the period of long-termsupervision or terminating it on the groundthat the offender no longer presents asubstantial risk of reoffending and therebybeing a danger to the community. The onus ofproving that ground is on the applicant. la Commission des libérations conditionnellesdu Canada ou, avec l’approbation de celle-ci,son surveillant de liberté conditionnelle au sensdu paragraphe 99(1) de la

Loi sur le systèmecorrectionnel et la mise en liberté sous condition— demander à la cour supérieure de juridictioncriminelle de réduire la période de surveillanceou d’y mettre fin pour le motif qu’il neprésente plus un risque élevé de récidive et,de ce fait, n’est plus une menace pour lacollectivité, le fardeau de la preuveincombant au demandeur. [Emphasis added.] [33] In Guindon c. R.,[14] the Court recalled that the list of offences that figure under s. 753.1(2)(

a) Cr. C. is not exhaustive, that is tosay, the Court may be convinced that the offender presents a substantial risk of reoffending even if he or she was not convicted of one ofthose offences.[15] However, Doyon J.A., who wrote the reasons, did not believe that every substantial risk of reoffending must result ina finding of long-term offender.[16] In his view, the substantial risk of reoffending at issue under s. 753.1(1)(

b) Cr. C. means[translation] “a substantial risk of reoffending by committing a violent offence such that it would cause serious physical or psychologicalinjury to others”.[17] [34] This

interpretation results from “the exceptional nature of the finding that an offender is a long-term offender”[18] and the verypurpose of the regime, which “protects society and is at the same time consistent with [translation] “the principles of proportionality and moderation in the recourse to sentences involving a deprivation of liberty””.[19] [35] I see no reason why the substantial risk of reoffending in s. 753.2(3) Cr. C. would have a different meaning.

Not only does thisprovision use the same words, but it also implicitly refers to the substantial risk of reoffending that justified the long-term offenderdesignation and the long-term supervision order, “on the ground that the offender no longer presents a substantial risk ofreoffending/pour le motif qu’il ne présente plus un risque élevé de récidive”. Obviously, this refers to the same risk of reoffending. [36] This

interpretation is also consistent with the “presumption that the same expression within a statute conveys the samemeaning”.[20] The addition of the clause “and thereby being a danger to the community/et, de ce fait, n’est plus une menace pour lacollectivité” is insufficient to rebut this presumption. [37] Thus, an offender subject to long-term supervision who seeks a reduction in the period of supervision or its termination it mustshow that he or she no longer presents a substantial risk of committing a serious personal injury offence or an offence under s. 753.1(2)(

a) Cr. C.[21] The burden incumbent on the offender is not to convince the Court that he or she does not present a substantial risk ofreoffending in any way. [38] Furthermore, according to s. 753.2(3) Cr. C., it is enough that the risk of reoffending be considered substantial. The offenderneed not show that he or she no longer presents any risk of reoffending or that reoffending is no longer a possibility. A low risk ormoderately low risk of reoffending should not defeat an application for a reduction in the period of supervision or for its termination. B. Applicable test [39] The judge noted that there is very little case law concerning the

interpretation of s. 753.2(3) Cr. C. With respect to the meaningof the expression “no longer” in the English version, she agreed with the remarks of Mackenzie J. of the British Columbia SupremeCourt in J.W.R. v. British Columbia (Attorney General):[22] [28] In my view, the Crown’s submission on how to interpret s. 753.2(3) of the Criminal Code is the correct approach.

While J.W.R.focused on the phrase “no longer” and its apparent meaning, I am satisfied that establishing that an “offender no longer presents asubstantial risk of reoffending and thereby being a danger to the community” essentially amounts to establishing a material change incircumstances since the order was made, such that, if known at the time, would have likely resulted in different terms. Even though theSupreme Court of Canada was dealing with family law in Willick v.

Willick, (SCC), [1994] 3 S.C.R. 670 and L.(D.N.) v.S.(C.N.), 2013 BCSC 858 when considering what a material change in circumstances means, I am satisfied the same definition isapplicable on the present application.[23] [40] Thus, the judge accepted the test that a [translation] “substantial change in circumstances has occurred since the period ofsupervision was imposed that, if known at the time, would necessarily have resulted in different terms”.[24] [41] In my opinion, that is not the correct test. Unlike s. 17(4) of the Divorce Act, which Willick v. Willick[25] addresses, s. 753.2(3)Cr.

C. does not require that a change in circumstances take place as a pre-condition. The offender must instead show that he or she nolonger presents a substantial risk of reoffending and thereby being a danger to the community. That obviously involves a change in theoffender’s circumstances since the long-term supervision order was made, but the Court need not ensure that a substantial change incircumstance occurred before assessing the risk of reoffending.

In other words, a decreased risk of reoffending arising from progressmade by the offender and the positive evolution of his or her situation since the order was made may constitute a change in circumstancejustifying a reduction in the period of supervision or its termination.

[ 42 ] I therefore disagree with the judge when she writes that [ translation ] “it would be surprising if the legislative intent ... was merely the demonstration of an improvement in the offender’s behaviour or a different result on one or two tests” [26] and when she implies that s. 753.2(3) Cr. C. concerns exceptional situations: [ translation ] [49] The test implemented by s. 753.2(3) Cr. C. is not to determine whether the offender has made progress and is evolving positively.

It is to be expected that the situation of most long-term offenders would evolve after several years in the community. [27] [ 43 ] The purpose of s. 753.2(3) Cr.

C. is specifically to ensure that the period of supervision is not longer than is necessary to obviate the risk that the offender will reoffend and thereby to protect the public. [28] If an offender successfully demonstrates that he or she has made progress and has evolved positively to such a degree that the offender no longer meets the definition of long-term offender, long- term supervision, as a preventive sanction, loses its purpose. [ 44 ] That being so, the judge was right to point out that the assessment of the risk of reoffending depends on several factors. In Morin c.

R ., the Court recalled: [ translation ] [11] When establishing the risk of reoffending, it is appropriate to consider the circumstances of the offence and the context in which it was committed, the wrongful behaviour, the individual’s history (prior convictions), and his or her psychological profile.

This assessment is often based on an expert opinion but remains the prerogative of the trial judge, who must assess the content as it relates to the overall evidence. [12] It should also be recalled that [ translation ] “to be convinced that the offender presents a substantial risk of reoffending, it is not enough for the acts to have been repeated or for the offender’s past conduct to allow the judge to believe that the offender may reoffend. That risk must be probable”. [29] [Citation omitted.] [ 45 ] Among these factors, in the context of an application based on s. 753.2(3) Cr.

C. , it is appropriate to pay particular attention to the behaviour and progress of the offender since the long-term supervision order was made. [ 46 ] In short, an offender subject to a long-term supervision order who seeks a reduction in the period of supervision or its termination must demonstrate on a balance of probabilities that he or she no longer presents a substantial risk of reoffending violently, that is to say, that it is no longer probable or likely that the offender will commit offences that would cause serious physical or psychological injury to other persons, and therefore, that he or she is no longer a danger to the community.

A lower risk of reoffending may arise from progress made by the offender and the positive evolution of the offender’s situation since the long-term supervision order was made. C. Assessing the evidence of risk of reoffending [ 47 ] First, it is worth recalling that the standard of appellate intervention with respect to a judgment rendered under the regime of

Part XXIV of the Criminal Code is different from that of an appeal from a sentence: [26] The Court in Currie held that appellate review of a dangerous offender designation is somewhat more robust. Nonetheless, this does not call for a completely fresh look on appeal at the designation (or as lawyers say, a de novo assessment).

The appellate court must give some deference to the findings of the sentencing judge: Currie , at para. 33 . [30] [ 48 ] Moreover, [ translation ] “an expert’s opinion is never imposed on the trier of fact”, who [ translation ] “must assess the probative value of the expert report, as that of any evidence”. [31] [ 49 ] In this case, the judge was not bound by the reports of Dr. Stephenson and Dr. Morissette; she could accept them in whole or in part, or reject them entirely. In my view, however, she erred by refusing to nuance the results of the PCL-R and VRAG tests.

She was also mistaken concerning the experts’ recommendations and assigned undue weight to the Board’s decision of November 8, 2018. [ 50 ] The test results. The judge presented the results of the tests performed on the appellant, including the PCL-R (moderate risk of dangerousness), the VRAG (category 8 - high), and the SARA (low or moderate risk of reoffending). She rejected the appellant’s argument as to the weight that should be assigned to the PCL-R and VRAG tests [ translation ] “due to their static aspect”.

She explained it as follows: [ translation ] [50] The criterion to consider is that of the “substantial risk of reoffending” or the “ risque élevé de récidive ”. That is exactly the purpose of the VRAG and PCL-R tests. The VRAG is a test that makes it possible to estimate the future risk of violence. The PCL-R is a test that assesses the presence of traits and behaviours related to psychopathy. Studies have shown that psychopathy is related to the risk of reoffending violently and to how quickly the reoffence could take place. [51] Dr.

Morissette personally explained to the Court that all the experts used these actuarial tools because they were more objective and therefore provided the best assessment of the risk of violence. The Court does not see any reason to set aside the proven tests in the applicant's case. [52] Whether the factors are dynamic or static, the fact remains that, according to a recognized and scientifically developed tool, only 6% of the offenders in the comparison group have a higher score than the applicant in the VRAG, 58% of the offenders in his category

reoffended violently within 5 years, and 78% reoffended within 12 years. [32] [Citation omitted.] [ 51 ] Yet, in his report, Dr. Stephenson added that [ translation ] “the score obtained [on the PCL-R] is hardly influenced by the individual’s recent change” and that [ translation ] “interviewing the offender, consulting the files, and obtaining information from various sources are elements that increase the effectiveness of this tool”. [ 52 ] With respect to the VRAG, Dr.

Stephenson noted: [ translation ] We note that the risk factors that contribute most to weighing the VRAG-R score are the fact that he did not live with his parents until the age of majority, his adaptation problems in primary school, the history of non-violent offences, the breaches of probation, the history of violent offences, his earlier admissions to correctional facilities, his behavioural disorder before the age of 15, and his score on the PCL-R antisocial scale. [33] [ 53 ] Most of these factors are static, such that even a completely rehabilitated offender who no longer presents any risk of reoffending would obtain a high score on the VRAG, due to his or her personal history, which unfortunately cannot change.

That is what Dr. Stephenson pointed out in the conclusions of his report: [ translation ] The assessment of the offender’s risk of domestic violence, which is based on two tools that have been the subject of scientific publications, indicates that this risk is moderate to low. It should be pointed out that even if the offender leads a virtuous life once released, he will qualify as a moderate to low risk for the rest of his life. Indeed, the offender will never escape the significant weight of the historical factors related to his past asocial behaviours and actions, for which he was convicted and sentenced.

It is clear that the moderate to high risk of reoffending violently is in large part due to historical factors. It should be noted that the instruments that take into account both historical and dynamic factors support the conclusion that the risk of reoffending violently or with domestic violence is moderately low. [34] [ 54 ] Dr. Morissette also made distinctions between the static and dynamic factors: [ translation ] From these two reports [by Dr.

Stephenson], we accept that the risk of violence, taking into account static factors, remains high (these factors will never change, except for the offender’s age) and that the dynamic factors have improved.

In particular, it appears that some of his personality traits (especially the personality traits related to antisocial personality disorder) have abated and improved, and that some insight seems to have settled in. [35] … If we had had to opine in April 2018, taking into consideration the offender’s overall evolution since 2010, we would have been of the opinion that, clinically, despite the historical factors (once again, those will never change, except for his age), the offender did not appear to correspond to the dangerous offender or long-term offender designation. [36] [ 55 ] At the hearing, he explained how the SARA made it possible to better assess the offender’s current situation: [ translation ] A That’s it.

Not in all these actuarial tools, because... the VRAG, for example, is a tool that is only static and historical. There is no... no... it... it does not say... there is no one item that will say, “Has become aware of his substance use problem”... Q Uh - huh. A ... for example. Q Okay. A There is... it’s... “How old is he? Has he previously reoffended while on probation? How old was he when he committed his first offence? Did he live with his parents until the age of sixteen (16)?”, etc. These are very static things. Q Okay.

And, in fact, it is the reason for which, for example, if we take the VRAG, his score could increase but could not improve? A Exactly. Q Here, maybe just for the Court’s benefit, I will name a few factors in the VRAG. Elementary school maladjustment, personality disorder, age at the time of offence, separation from either parent, prior breach of parole, history of non-violent offences, never married, schizophrenia, most serious injury inflicted on a victim, history of alcohol abuse, victim of current offence is a woman.

So, you can see from these elements, once they have been scored, the result will more or less be the same in ten (10) or even twenty (20) years? A Not quite, because the age at... age at the time of the current offence, that one... the more time passes, the score is lowered. So that is the only item that will lower the score. Q Okay. A The other thing that could lower the score, also, is if, between two (2) offences, if I assessed someone in 2008 and then I assess him now... if he had married, that could also lower the score, slightly. So those two (2) items could lower the score.

Q Okay, but is it fair to say that in general, recent changes have little influence on the score? A Exactly. Q Okay. And when we refer to the SARA, which assesses the risk of domestic violence... A Yes? Q ...am I right to state that it is a tool that takes into consideration recent changes more than the others? A Exactly. Q Okay. A It’s not exact. It’s a tool for structured clinical judgment, which means that we don’t get...

When we perform the VRAG or PCL-R, we get a number, and that number corresponds to a certain group, and that group corresponds to a risk of reoffending, whereas the SARA is a scale of... it is a scale of... it’s... it’s a... a... let’s say a scale or structured clinical judgment tool. It does not give a number. It indicates risk factors. Does he have a problem with alcohol consumption? Does he have a problem with impulsivity? Does he have a problem... So... and on that point, we will look for risk factors, and then we’ll offer... a treatment. So that, it is... it changes over time.

It will improve or deteriorate, depending. So, it’s more... it goes... the individual has more influence over it. An individual may have had many risk factors ten (10) years ago, and have fewer now. [37] … Q Excuse me. In fact, my question was: am I right to say that the SARA may be the tool that best allows one to assess an individual’s progress? A Yes. Q Contrary to the other tools that are more static? A Exactly. [38] [ 56 ] Given these explanations, the judge erred by assigning the PCL-R and VRAG tests equal, maybe even preponderant, weight in comparison to the other tests.

Obviously, she was not bound by the expert assessments of the risk of reoffending, but, not being an expert herself, she was not free to substitute her own weighting of the test results for theirs, without any support from the evidence. [ 57 ] Furthermore, the judge did not explicitly reject the reports of Dr. Stephenson and Dr. Morissette. On the contrary, she relied on their recommendations. This is a point I will now address. [ 58 ] Recommendations of the experts.

The judge noted that none of the experts [ translation ] “suggested that the period of supervision be terminated without any follow-up”. [39] She concluded that [ translation ] “terminating the period of supervision is not the appropriate way to follow through on the recommendations in the reports of Dr. Stephenson or Dr. Morissette”. [40] [ 59 ] This assessment of the expert evidence contains two palpable and overriding errors. [ 60 ] Let us start with the first. Dr. Stephenson felt that the appellant could benefit from cognitive behavioural therapy, which is undoubtedly the case for a large number of offenders.

This fact, by itself, does not imply that the long-term supervision should continue. [ 61 ] The judge referred to the results of the LSI-R test, [ translation ] “an actuarial tool that makes it possible to assess the offender’s needs and risk factors to facilitate the decision-making of those on the offender’s treatment and supervision team”. According to Dr. Stephenson, the appellant’s score on the LSI-R test, puts him in the [ translation ] “minimum category for the risk of reoffending if responses to his dynamic risk factor, which is subject to change, are not implemented”.

Also according to this tool, statutory release is suggested as soon as the offender is admissible (assuming that the offender is in custody), with the maximum level of probation during the probationary period in the community. Finally, the probability of reoffending for offenders who have the same score as the appellant could be characterized as [ translation ] “moderate to low”. [ 62 ] It should be understood that the LSI-R does not concern the decision that must be made under s. 753.2(3) Cr. C. This test is useful insofar as it makes it possible to assess the risk of reoffending. Dr.

Stephenson addresses this in the part of his report titled [ translation ] “Actuarial assessment of the risk of reoffending”. In the parts titled [ translation ] “Conclusion” and [ translation ] “Recommendations”, he wrote that the appellant presents [ translation ] “a moderately low risk of reoffending violently and a low risk of reoffending with domestic violence” and that he [ translation ] “could benefit from cognitive behavioural therapy to modify his cognitive distortions and work on the dynamic risk factors”. This recommendation is not necessarily part of long-term supervision. In truth, Dr.

Stephenson does not issue an opinion on the reduction in the period of supervision.

[ 63 ] The judge therefore committed a reviewable error by inferring from Dr. Stephenson’s report that he did not recommend the termination of long-term supervision without follow-up. [ 64 ] As for Dr. Morissette, it is true that he did venture into the field of the terms of supervision when he wrote: [ translation ] The issue is whether these rules are still required for the offender, considering that their purpose is to protect the community. Clinically, the offender is now at a stage where he should be able to experience his romantic relationship with Alisa completely and genuinely.

He should therefore be left to his own devices in the community to study or work regularly. … With respect to the offender, clinically, our suggestion would be for a probation officer to meet with the offender (and his girlfriend) in the community every month or every two months, but no more, in the community where the couple usually reside. Clinically, the stay at the halfway house, the very tight control over his comings and goings, the possession of a cellular telephone, etc., no longer seem necessary.

If it is legally possible to broaden the probation to allow the offender and his girlfriend to experience their romantic relationship, if the stay at the halfway house and/or the strict follow-up can be terminated, if a probationary follow-up in the area where the couple will live is possible once a month or every two months only, the long-term offender designation could apply until 2023, to ensure both the safety of the public and the rehabilitation of the offender.

If the long-term offender designation legally requires very strict, quasi-daily supervision, requires living in a halfway house, prevents him from having a relationship, prevents him from holding employment or studying in the long term (due to supervision, communication, and external control requirements), it would then be desirable, from a clinical standpoint, for the long-term offender designation to be terminated because the possible “risk” is clinically much lower than the inconveniences of the current supervision, and the current low risk no longer justifies the current legal security framework, which interferes with the offender’s rehabilitation process. [41] [ 65 ] When questioned on this aspect by the judge, Dr.

Morissette added: [ translation ] A Well, it’s... We, we are... as clinicians, we are searching for the best possible outcome in the circumstances. So if I hear: “Does...”, as I described in my last paragraph, in an ideal world, the simplest would be to... broaden the conditions, but if that is impossible for X, Y, and Z reasons at that point, the designation seems pointless to me and a waste of energy for several professionals. But... and without it bringing any improvement to the safety of the public. The purpose of all this is to improve the safety of the pubic.

Q Yes, but that, if, exactly, if it could be broadened, it could continue to apply until 2023? A If we were able to... broaden so that he could have a... for him to take an hour a month to go see the probation officer, with or without his spouse, it... it appears to be a small price to pay in the circumstances. If he could live in the community, have a job, study, have a relationship, while being... while being under some supervision.

If that is possible, I believe that would be a compromise that everyone could agree on. [42] [ 66 ] Except that this search for the [ translation ] “best possible outcome” from a clinical standpoint does not change Dr. Morissette’s opinion that the appellant no longer meets the long-term offender designation. [ 67 ] Therein lies the second error. As the judge said on two occasions, [43] the conditions of long-term supervision are up to the Board. [44] Dr.

Morissette’s opinion of the conditions imposed on the appellant or the appropriateness of probationary follow-up [ translation ] “in an ideal world” is not relevant under s. 753.2(3) Cr. C. The question – the only question – is whether the appellant continues to present a substantial risk of reoffending violently.

If the answer is no, long-term supervision no longer serves a purpose, even if probationary follow-up could be considered [ translation ] “a compromise that everyone could agree on”. [ 68 ] The judge did not really answer this question, except to conclude that the appellant had failed to meet the burden of proof incumbent upon him. She did not explain why she rejected the assessments of the risk of reoffending performed by the experts.

This omission has convinced me that she misinterpreted the expert evidence [ translation ] “in a way that affected [her] conclusion”. [45] [ 69 ] The essence of the judge’s reasons is that none of the experts considered that the appellant no longer presented a risk of reoffending (this is in fact how she summarized the respondent’s position), [46] whereas the applicable test is whether there is a substantial risk of reoffending violently. [ 70 ] The Board’s decision of November 8, 2018. The judge assigned great weight to this decision.

She first quoted long excerpts from it to demonstrate that the appellant had not behaved in an exemplary manner since the beginning of the long-term supervision. [ 71 ] I recall that the appellant was convicted on four counts of failure to comply with a long-term supervision order. [47] As LeBel J. pointed out in R. v.

Ipeelee , “[b]reaches can occur in an infinite variety of circumstances” [48] and “[t]he severity of a particular breach of an LTSO will depend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender’s risk of reoffence in the community”. [49] In this case, without trivializing the gravity of the breaches committed by the appellant and their possible impact on the risk of offending, the fact remains that none of them was violent.

In fact, his last conviction for a violent crime goes back to October 2010 (assault against a peace officer). [ 72 ] Next, the judge quoted the conclusion of the decision that states that the appellant continues to present a substantial risk of

violence, without noting the fact that the psychological assessment report on which the Board relied was prepared in April 2008. This element, by itself, should have led the judge to reject this conclusion and to consider the Board’s entire decision with caution. [ 73 ] The Board’s decision is surprising for other reasons. In addition to some duplicates (paragraphs repeated in various spots), its conclusions rest largely on the appellant’s prior convictions since adolescence and his negative attitude toward the long-term supervision conditions.

It does not address the domestic violence prevention programs that he successfully completed in February 2008 and October 2013. On the other hand, it accepts the facts underlying two charges of failure to comply with a long-term supervision order, of which the appellant was acquitted.

The same is true with respect to the incidents for which the case management team claimed to have received satisfactory explanations. [ 74 ] The judge therefore erred by unreservedly relying on the Board’s assessment of the risk of reoffending, which was based on a psychological assessment that was over ten years old, without any consideration for the appellant’s progress. D. Disposition on appeal [ 75 ] Section 759(3)(

a) Cr. C. allows the Court, if it allows the appeal, to render the order that could have been rendered or to order a new hearing with any directions it considers appropriate. [ 76 ] I would have been inclined to order a new hearing, but both the appellant and the respondent are of the view that the Court has everything it needs to decide the appellant’s application. Given the period of supervision that remains (less than one year), I agree with them. [ 77 ] Insofar as the judge did not reject the reports of Dr. Stephenson and Dr.

Morissette (as lacking in credibility, for example) and even relied on their recommendations, I find that these reports have great probative value. As previously stated, both experts are of the view that the appellant no longer presents a substantial risk of reoffending violently, despite his failures to comply with the long-term supervision for which he has already been convicted. There is no question then of punishing him again for these offences.

Even though his negative attitude toward the conditions of long-term supervision may raise some concerns and have an impact on the risk of reoffending, which seems to have weighed heavily in the Board’s decision and the judgment under appeal, this factor is not preponderant here and does not justify setting aside the assessments of the risk of reoffending prepared by the experts. [ 78 ] Dr. Morissette makes a clear distinction between crimes against the person and the failures to comply with long-term supervision committed by the appellant: [ translation ] A ...

So, there were breaches, but, to my knowledge, there was no violence against persons, there was no threat to persons. And the offences alleged against the offender, for which he was convicted, are crimes against the person. So now, follow-up since 2012 would seem to indicate that violence against the person is no longer part of his evolution, of his modus operandi . There were breaches of conditions. It’s delicate, I don’t want to tell him... I don’t mean to say that it’s minor, I don’t want to say that... But it’s not... Q But these are not violent crimes?

A Not of violence. … [50] Later, based on his experience with dangerous offenders and long-term offenders, he made the following observation: [ translation ] A ... I know from experience, the... the... the... way things work at the halfway house. Personally, I think that it’s... as a clinician, once again, I... I would allow myself to say that, sometimes, they tend to make a big deal out of small things and the individual’s criminogenic needs or criminogenic risk factors are not sufficiently understood, and they apply the same formula to everyone. So, at some point, it’s not productive.

This... this leads to administrative breaches, which have legal consequences, I agree, but have very little incidence on the risk of reoffending, whereas the ultimate goal of this legislation is to protect the public from violent individuals. So, the breaches of condition that are alleged against the offender, in my view, do not have... did not prevent violence against... against people in the community, but they are breaches. He failed to respect certain conditions. [51] [ 79 ] I recall that the opinions of Dr. Stephenson and Dr.

Morissette (who was the Superior Court’s expert) were not contradicted by another expert. Overall, the evidence has convinced me that the appellant no longer presents a substantial risk of reoffending violently and, therefore, is no longer a danger to the community. V. Conclusion [ 80 ] I would therefore allow the appeal, reverse the judgment of the Superior Court, grant the appellant’s application, and terminate the period of long-term supervision as of the date of the Court’s judgment. SUZANNE GAGNÉ, J.A.