R. v. M.S., 2010 ONCJ 600

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE NO.: 2811 998 07 8966-00 DATE: December 7, 2010 Citation: R. v. M.S. , 2010 ONCJ 600 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) )

Her Majesty The Queen ) ) ) K. Saliwonchyk, Counsel for the Crown ) - and - ) ) ) M.S. ) ) ) A.Risen, Counsel for the Defendant ) HEARD: April 2, 2009 to October 27, 2010 See Appendix ‘A’ JUDGMENT ON DANGEROUS OFFENDER APPLICATION BELLEFONTAINE, J: INTRODUCTION M.S. has pled guilty to 13 counts including assault, seven sexual assaults, three counts of invitation to sexual touching, possession of child pornography and making child pornography. With the consent of the Attorney General, the Crown has applied for him to be declared a dangerous offender and imprisoned for an indeterminate time.

For the reasons that follow I designate him as a long-term offender and sentence him to a 12 year period of imprisonment to be followed by a 10 year long-term offender order pursuant to which he will be under the strict control of the National Parole Board.

TABLE OF CONTENTS Page Number Predicate Offences………………………………………………….. 3 Prior Record………………………………………………………..11 Prior Discreditable Conduct………………………………………12 Victim Impact Statements…………………………………………13 M.S.’s Background……………………………………….15 Psychiatrist and Psychological Assessments……………………..20 Analysis of the Expert Evidence………………………………….35 Position of the Parties……………………………………………..39

Applicable Law……………………………………………………42 Analysis…………………………………………………………….61 Pre-Sentence Custody Credit…………………………………….75 Analysis – The Sentence to be Imposed…………………………78 Disposition…………………………………………………………88 THE PREDICATE OFFENCES The facts in relation to the 13 counts are set out in an agreed

summary of facts and my ruling on a trial of an issue in relation to one of the complainants. A large part of the offences were videotaped and can be seen on 60, two hour videotapes which have been digitally reproduced and filed. For the purposes of the proceedings counsel have agreed that I need only review a sample compilation which had been prepared consisting of approximately nine hours of the offences. Count 1, is an assault with offence dates indicated between 1992 and the year 2000; M.S.’s common law wife and M.S. were painting his house and he lost his temper with her.

M.S. pinned her against the wall by holding the paint roller stick against her abdominal area. On another date, during an argument, she threw the remote control unit down the hall in his house, and it broken into pieces. M.S. chased her down the hall and grabbed her by the shirt collar with both hands, which brought his hands into contact with her neck. She told him to let go, which he did. Count number 2 is a sexual assault, with offence dates 1992 to 1993. The victim, then 10 or 1l, lived in the upstairs apartment at Mr. M.S.’s house. She would go to Mr.

M.S.’s apartment in the basement frequently when she lived at that house, and Mr. M.S. would show her pornography. He would also have her lie on his bed and then touch her all over her body, including her vagina. He would try to have sex with her, and she remembers Mr. M.S. ejaculating on her back. She recalls the accused telling her that what they were doing was okay. Count number 3 is an invitation to sexual touching with offence dates 1998 to 2002. At age 9 to 12, the victim was in grade 5 to 6 and would visit with a playmate at Mr. M.S.’s. She does not recall that Mr.

M.S. ever touched her inappropriately, but remembers smoking drugs, cigarettes and drinking alcohol over at Mr. M.S.’s place. The videotapes seized from Mr. M.S.’s residence include several occasions where Mr. M.S. has conversations about sex with the girls. On one occasion, the discussion takes place while he shows the girls a video of adult pornography. One of the tapes made by Mr. M.S. includes an incident where Mr. M.S. encourages the girls to kiss each other while he tapes them. The girls pretend to do so several times, and Mr. M.S. continues to persuade them to kiss.

Counts 4 and 5 are invitation to sexual touching and sexual assault charges with offence dates between 1998 and 2002. The victim, between the ages of 9 to 12, would “hang” around Mr. M.S.’s house with other children. Mr. M.S. would have good food at the house, rent movies and supply alcohol for them. He offered to give her marihuana. She also said that she would babysit his son when he went out and she would sleep over. One time she woke up and Mr. M.S. was touching her. Mr. M.S. admits that he touched her breasts and vagina underneath and on top of her clothing while she slept.

One of the videotapes seized from Mr. M.S.’s residence shows Mr. M.S. touching her vagina on top of her clothing, and he tries to move her shirt so that he can see her breasts, but does not appear to succeed at this. The offences continued when she was awake over many occasions, to Mr. M.S. fondling her breasts, buttocks, vagina, performing oral sex on her, and attempting intercourse, which was unsuccessful due to her undeveloped body. She continued to return to the home, as Mr. M.S. took her to Canada’s Wonderland and McDonald’s and did other fun things with her.

Count number 6 is a sexual assault with an offence date of approximately 1999. When the victim was approximately 9, she would have occasion to be babysat by Mr. M.S.. The videotapes seized from Mr. M.S. show two occasions where she is sexually assaulted by Mr. M.S.. On the first, he focuses in on her, moving up and down her body and concentrating on her vaginal area. He pulls her underwear down and focuses in on her vaginal area. The camera moves and shows Mr. M.S. masturbating. He then spreads her labia and focuses the camera in on her vaginal area. The second clip also shows her sleeping in the bed. Mr.

M.S. pulls her underwear down and focuses in on her vaginal area and tapes himself masturbating. He pulls down her underwear, fondles her vaginal area, and then continues to go on to perform oral sex on her. He then returns to taping her vagina as he holds her labia apart. She appears to be asleep throughout the whole of the incidents. Count number 7 is a sexual assault with approximate date of 2001. There are two incidents on the tapes seized from Mr. M.S.’s residence involving a young girl who sleeps throughout and who was the daughter of a friend of M.S.’s.

The girl is dressed differently for the two incidents, leading to the belief that they occurred on different dates. Mr. M.S. approaches the girl several times and pulls her panties away from her skin and exposes her buttocks and strokes her buttock. He attempts to pull her legs apart to film her vagina. M.S. then reaches in and cups her partly covered buttock and vagina with his hand. During this assault, he can be heard breathing heavily. The second incident is very much the same as the first. Counts 8 and 9 are sexual assault and invitation to sexual touching with offence dates between 2002 and 2006.

There are approximately 25 hours of sexual abuse of this child between the ages of 11 to 15 years of age captured on the tapes. She was unhappy living with her mother and stepfather, and was allowed to stay over at Mr. M.S.’s residence frequently between 2002 and 2005. The assaults on her start like the assaults on the other girls. Mr. M.S. approaches her while she is sleeping and fondles her breasts and vagina. The abuse progressed, with Mr. M.S. digitally penetrating her and performing oral sex on her while she slept. Eventually, Mr.

M.S. would approach her when she was awake, and demanded that she do what he told her to do. This would often consist of her standing up and taking off her clothes when he told her to. She would then be ordered to lie down, and he would pull her underwear aside and digitally penetrate her vagina. Finally, Mr. M.S. progresses to the point where he is having intercourse with her. The 25 hours of abuse on video include approximately 21 occasions of intercourse. Mr. M.S. would also frequently get her to touch his penis with her hand, mouth or vagina while he masturbated.

From time to time, she would refuse to comply with Mr. M.S.’s demands, though her resistance was usually overcome with him threatening to “be mean” or to “get rough” with her. There are a few occasions on the tapes where he does physically force her to do what he wants, but more commonly he would offer her rewards or threaten to send her home. Count number 10 is a sexual assault with offence dates of approximately 2002 to 2006. The victim, from age 10 to 14, lived in the same neighbourhood as Mr. M.S. and often spent time at Mr. M.S.’s house with other children, including having sleepovers from time to time.

Examination of the videotapes seized from Mr. M.S.’s residence showed four occasions where Mr. M.S. sexually assaulted her while she slept at his residence. Mr. M.S. enters the room where she is sleeping and pulls down her pajama bottoms and underwear to expose her vagina. Mr. M.S. uses his finger to spread her labia apart for the camera, to videotape her. On another of the tapes, M.S. has a small penis shaped dildo that he places onto the end of his finger, and uses it to penetrate her vagina. Count number 12 is the making of child pornography, and Mr.

M.S.’s 60 videotapes of the foregoing offences constitute the making of the child pornography. Count 13, possession of child pornography: during the search of Mr. M.S.’s residence on the 29 th of June, year 2006, Durham Regional Police officers located a computer, which was examined and found to contain 2,024 image files and 78 video files which meet the definition of child pornography. The child pornography appears to have been obtained via the Internet. My review of the

summary DVD’s filed on consent show a substantial portion of the files to depict children under age 10, frequently performing fellatio and at least one case where simulated intercourse is performed with a child who appears to be approximately three or four years of age. Count number 11 is a sexual assault with offence dates of approximately June 2003 to June 2006. The victim in this matter was aged 17 to 20 and resided with Mr. M.S. briefly but, on the evidence, was more commonly over the following years a sporadic visitor.

The relationship appears to have varied over time but, in the main, she agreed to be involved in sexual acts with Mr. M.S. to support her drug addiction. These acts involved the full gambit of sexual activity, but were focused on her playing the role of young children who are being forced to have sexual intercourse with a father figure for the first time, and involved him threatening or intimidating the “child” into performing sex acts for him. The acts also involved consensual violence towards her short of bodily harm, as Mr. M.S. videotaped acted out rape scenarios.

This consent was exceeded on three occasions where Mr. M.S. proceeds to have intercourse with her over clear objections. On another occasion, he penetrates her vagina with a beer bottle over her objection and on another slaps her and forces her to insert a vibrator into her vagina. On yet another occasion he threatens her with a knife during the course of an incident in which he repeatedly slaps her face with his penis.

Notwithstanding her advance agreement to be beaten and touched when she was unconscious, I had as well found three incidents to be assaults in law when she was unconscious and he digitally penetrated her or slapped her face repeatedly with his penis.

I did so on the basis of the Supreme Court of Canada decisions in R. v. Ewanchuk and R. v. Esau 1997 CanLII 312 (SCC) , [1997] 2 S.C.R. 777 as interpreted by the Alberta Court of Appeal in R. v. Ashlee 2006 ABCA 244 (CanLII) , 2006 A.J. No. 1040 . In doing so I followed the path taken by Nicholas, J. of my court in R. v. A.J. [2008] O.J. 195 who considered these decisions and others from our Court of Appeal and held in the words of Justice Charron of the Court of Appeal in R. v. Humphrey [2001] 143 O.A.C. “Even if consent had been given earlier, it would cease at the time the complainant became unconscious”.

Justice Nicholas’ decision was appealed to the Court of Appeal and reversed. The Court of Appeal held: “The trial judge erred in reaching the broad conclusion that a person cannot legally consent in advance to sexual activity expected to occur while unconscious. In my opinion…a more appropriate inquiry would be whether the complainant’s consent given in advance to sexual acts performed while unconscious was vitiated in the particular circumstances of the case.” See R. v. J.A. 2010 ONCA 226 (CanLII) , [2010] O.J. No. 1202 (O.C.A.) .

In light of the Court of Appeal’s decision, I am obligated to revisit my decision on these three “unconsciousness” incidents. I remain satisfied that there is a reasonable doubt on the evidence in M.S.’s favour that L.V. had given advance consent at a general level to being assaulted and sexually assaulted whether she was conscious or unconscious.

His evidenced to this effect is supported by videotapes of her where she is excited upon hearing that M.S. had videotaped her “cracking out” and is anxious to see the tape, and their generic deal that he could do anything he wanted to do to her as long as he did not beat her up bad. Left unaddressed in my earlier decision was whether her “consent given in advance to sexual acts performed while unconscious was vitiated”. This determination involves in particular consideration of

Section 273.1(2)(

e) which deems no consent to have been obtained where the complainants, having consented to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue to engage in the activity. Having considered the matter in light of the burden on the Crown to establish these aggravating facts beyond a reasonable doubt and in particular the lack of consent of L.V., I find that the incidents designated as numbers 6 and 7 are proven and incident number 8 not.

In incident number 6, M.S. resuscitates L.V. after she cracks out and stops breathing, following which he straddles her chest and slaps her face repeatedly with his penis. I consider her repeatedly turning her head away each time he places his penis on her lips, refusing to look at the camera and crying when he continues to hit her face with his penis to be sufficient conduct to show a lack of agreement to continue the activity to vitiate any consent previously given.

Similarly in segment 7 when M.S. tries to re-arrange L.V.’s legs while she is unconscious she revives in a stupor and stays “no”, and moves her legs away from him to prevent him fondling her. After she again lapses into unconsciousness he proceeds to digitally penetrate her for some time. I view her consent here to be withdrawn by virtue of her words and actions. In incident number 8, there are no words or actions by her until after she rouses from unconsciousness to withdraw any consent. Accordingly I cannot find that any consent previously given with respect to this incident had been vitiated.

Accordingly I will consider the two incidents referred to as part of the factual basis for my decision in this matter. PRIOR RECORD Mr. M.S. has a criminal record and was on probation while he committed some of the offences.

The criminal record is as follows: 1985, abduction, suspended sentence and probation for 18 months; 1988, counts of mischief and fail to comply with undertaking, a $100 fine and probation for one year was imposed on the mischief, with a $250 fine imposed for the fail to comply with undertaking charge; 1989 in Whitby a count of threatening death, a $500 fine and probation for two years was imposed; and in the year 2001, on counts of uttering threats and failing to comply with a recognizance, he received a suspended sentence and 18 months probation. The 1985 abduction relates to Mr.

M.S., then 17, taking his 13 year old girlfriend P.D. to his family cottage with her consent but without her parents’ permission. She was supplied alcohol and drugs and engaged in unlawful but consensual sexual intercourse with him, and returned to her parents’ home with him after the weekend away. No sexual assault charge was laid, but I note that, at the time, she was under 14 years of age and, with him being more than three years older than her at the time, sexual assault charges could have

been laid as she would have been prevented from lawfully consenting to the intercourse that took place. Their relationship commenced when P.D. had just turned 13 and M.S. was just short of age 17. Although M.S. introduced her to significant alcohol and drug usage I have found that the intoxicants were not used to seduce her. Their sexual activity pre-dated the abduction charge.

I accept P.D.’s evidence that although when they first had intercourse she did not want to have intercourse and was scared to do so, that she did not communicate her not wanting to have sex with M.S. to him and only consented to do so for fear of not looking cool or losing M.S.’s attention or affection. The record relating to the 1989 threatening relates to a threat to cause death to his 16 year old girlfriend N.M. when he was aged 19.

As it was a jury verdict encompassing multiple incidents, it is unclear the factual background that was accepted by them or that the sentencing judge used as the basis for the threat. One of the threats was said by the victim to have occurred as a result of her refusing to “fool around” with him and take her clothes off. The 2001 threatening relates to an argument with his ex-spouse during a child access exchange, when he said he would break her back and a subsequent breach of his release terms by communicating with her indirectly through their son.

PRIOR DISCREDITABLE CONDUCT The Crown has called witnesses to establish other discreditable conduct by M.S. that it argues is relevant to the dangerous offender designation decision. My decision with respect to these contested aggravating features was provided to counsel in mid-hearing to provide a clear factual foundation for the expert’s evidence in this matter prior to their testifying. Issues related to the P.D. abduction have been incorporated in the facts referred to in the “Prior Record”

section of this ruling. I have found the serious allegations with respect to S.A. to be not proven beyond a reasonable doubt and similarly some aggravating features surrounding the relationship with N.M, the victim of the 1989 threatening. I have found that M.S. admitted to P.L. that he is attracted to young girls and had her play the role of a younger girl who is having sex for the first time. Further, that he told her in the mid 1980’s that he needs to masturbate four or five times per day to be sexually satisfied, and that he had kicked Mr. Robert Pratt in the head.

I also accept P.L.’s evidence that he commenced a sexual girlfriend/boyfriend relationship with S.G. when she was 13 and he was 18. Given S.G.’s age, that relationship would have been illegal by virtue of her legal inability to consent to having intercourse with him. VICTIM IMPACT STATEMENTS Victim Impact statements have been filed on consent on behalf of J.B., M.T. and M.T.’s father. I am advised by the Crown that all the other victims who have been located have been advised of their right to provide a victim impact statement. J.B. was the victim referred to in counts 4 and 5 and was frequently fondled by M.S..

As well he performed oral sex on her and attempted to have intercourse with her. In her victim impact statement she describes how M.S.’s crimes are relived in her mind every day and how they have negatively impacted her relationships with other people. She goes on: “I am so angry at myself for not telling somebody. It makes me feel sick and weak. Secrecy does not make things to go away nor does it make dealing with this type of thing any easier. I have this anger deep inside my soul. It hurts so bad sometimes…and

now I have to forever live with the actions of R.S.…No legal sentence will ever be enough, the pain and regret will remain with me and the other victims for the rest of our lives.” M.T. is the victim referred to in count 10. She was also a good friend of K.M. who was extensively abused by M.S.. She was sexually assaulted while she was asleep. M.S. appears to perform oral sex on her and can be seen on four occasions spreading her labia and on one penetrating her vagina with a small penis shaped dildo that he places on the end of his finger.

She states: “It’s amazing how you could ruin my life and I wasn’t even conscience of the fact…I can’t go through a day without thinking about how much you have taken away from me and everyone else you have hurt in your past. My anxiety I have built up so deeply inside me over this process I don’t know how to bare it anymore. When your name is mentioned, the hair on the back of my neck rises, the horror you have bestowed on me is excruciating.” M.T.’s father was a friend of M.S.’s and feels he was deceived by M.S. into thinking that M.S.’s interest in having children at the house was for the children’s benefit.

He blames himself for the harm that has come to his daughter and the other children. The Victim Impact Statements eloquently highlight the emotional pain of M.S.’s crimes and demonstrate the long-term psychological injury of the premature and often coercive and violent sexual crimes he has perpetrated against these children. M.S.’S BACKGROUND M.S.’s background is set-out in detail in the court ordered psychiatric assessment prepared by Dr. Bradford. It is largely based on M.S.’s self-reporting and can be summarized as follows. He was born in 1967 and is currently 43 years of age.

He had a good relationship with both his parents growing up and they appear to have been hard-working stable individuals. Dr. Langivin in his report notes that there was a considerable amount of nudity permitted in the house when M.S. was young and views some aspects of his upbringing to have been dysfunctional. M.S.’s development milestones were normal. M.S. is the eldest child with a younger sister Lori who testified on his behalf and a foster sister Heather.

Heather has a number of disabilities and it appears that at one time for several years M.S. performed the role of her primary caregiver while he shared a house with her. His early schooling was in a learning-disabled class. For high school he went to a private school. He would go home for weekends for grade 9 and 10 and then after his parents separated he went to a public high school. He attended private school because he had learning disabilities and the schools had special programs to assist with the learning disabilities. Most of his schooling related to learning disabilities.

He was hyperactive and there was a request and recommendations to treat him with methylphenidate (Ritalin). His mother refused to have him treated with Ritalin. His teachers described him as a likeable kid who talked too much, who has “hyper” and could not settle down. Specifically he could not copy notes down from the board. His attendance at school despite these difficulties was good and he never played truant. He never failed a grade although he failed certain credits in high school. He was taking both general and advanced credits.

Outside of the disruptive behavior he generally was not a troublemaker in school. He ended up overcoming the learning disabilities and completed grade 12 and also completed three grade 13 credits. He subsequently went on to study as an elevator mechanic, his father’s occupation. He studied at Centennial College in Scarborough. It took four years to complete his certification. He also completed the associated apprenticeship. M.S. has worked as a bartender for about two years; he worked in construction; but most consistently he has worked as a elevator mechanic for about 13 years.

He has had about six jobs in total as a bartender; three in construction and about six jobs as an elevator mechanic. His longest stint in one job was about three years. The jobs terminated for various reasons. He was sometimes laid-off. At other times his attendance was a problem related to drinking and drugs. He believes his overall work performance was reasonable but the main problem was attendance. He had a pattern of coming into work late because of drinking and taking drugs. Employers have advised him to go into rehabilitation.

On occasions he stayed away from work when he was not ill because of alcohol and drugs. He has been unemployed when he was laid off. Since the age of 18 he has been unemployed for about three years in his chosen field as

there was no work available. He admits he did get unemployment insurance while at the same time he was working under the table. On other occasions he was receiving welfare and was also working. He admits that this was fraudulent. He collected welfare payments for about 12 months when he was 19 or 20 years of age. There was a fraud charge laid related to collecting the benefits when not eligible. His career goal for the future would be to get back working as an elevator mechanic. He acknowledges that working/having a job is very important to him for self-esteem and to lead a comfortable life.

His long-term goals are to get back to work but also to stay away from drugs and alcohol. From a financial standpoint he maintains he has never had any significant money problems and has no debts. He sold his house to clear up any debt he had and also to pay for his legal costs. He started dating when he was 14 years of age. He was involved with S.G. from 1987 until 1993. On M.S.’s account there was no physical abuse in the relationship although they did argue a lot and he did threaten her. He admits that on one occasion he pushed her. He describes the relationship as a close one but it ended.

This relationship led to his son being born and he feels guilty that he has not been there for his son. He knew S.C. in high school and he started seeing her when he broke up with S.G. He was together with her from 1998 until 2000. They broke up because she found the pornographic tapes and she was concerned about a young female K. He assaulted her by pushing her up against a wall on one occasion. They argued a lot mostly about him smoking cannabis, which she would not allow him to do in the house. He admits that he cheated on his partners. In his self reporting to Dr.

Bradford he describes his sexual orientation as strongly heterosexual. He admits to sexual fantasies for young females between 10 and 14 years of age and this is his sexual preference/interest. He also admits this has driven urges to engage in sexual behavior with young females and he admits he has sexually acted out with this age group. He denies any other sexual paraphilia. He specifically denies any sexual interest in sexual sadism or sexual masochism. He admits his sexual drive has always been high. He told Dr. Bradford masturbation would be associated with heterosexual pedophilic fantasies.

More recently, as can been seen on the videotapes, he has had some difficulties with sexual dysfunction and in particular with erectile dysfunction. He has on occasions used Sildenafil (Viagra) and a herbal remedy to treat this. He has engaged in high-risk sexual contact such as massage parlors/prostitution. He also engaged in significant viewing of pornography over the Internet. This included both adult and child depictions. Overall, the pornography was directed towards children. He also made pornographic videos of adults and children. There was no interest in male children.

He burned CD’s from the Internet pornography. His own production of pornography related to young females started in 1991 with girls in bathing suits. He would use the pornographic material for masturbation. He denies any pornography that was directed towards violence or sexual sadism. He has had about 40 different sexual partners with 30 of them being casual partners. He met a number of them when he was working as a bartender. These relationships were mostly brief and sexual in nature. M.S. told Dr. Bradford he was drinking regularly by his early twenties.

He describes his drinking as not really being a problem and when he was arrested he had not had anything to drink for a few weeks. At the same time he would have drinking binges and sometimes would drink 40 ounces of alcohol in a weekend. He does not believe he is an alcoholic and does not appear to have had any clear withdrawal symptoms. He has smoked cannabis every day since he was 15 years of age right up until the time of his arrest. His main problem has been cocaine, which he had abused and has become dependent on starting September in 2005. He believes he is addicted to cocaine and to cannabis.

He admits that he had been stoned/impaired when he was videotaping the children. M.S. has a supportive family network. Both his sister and his elderly, very ill, mother attended in court to testify on his behalf. They testify that in addition to them other family members remain supportive of M.S.. They have been financially assisting with his legal bills and are prepared to assist in accommodation and financial support for private counseling if and when M.S. is released from custody. Mrs.

S. has testified to the emotional and spiritual support she has been providing to her son through regular telephone calls to him at the jail. Both she and a John Howard Society volunteer who has spent many hours with M.S. have attested to the remorse that M.S. feels for his crimes and his personal resolve to commit himself to whatever treatment is needed to ensure the crimes are not repeated. That remorse is supported by M.S.’s pleas of guilty in this matter which he testifies he made to save victims the embarassment and trauma of testifying. PSYCHIATRIC AND PSYCHOLOGICAL ASSESSMENTS Dr.

John Bradford conducted the

Section 752.1 Criminal Code assessment and prepared and filed the statutory report and testified in support of it. He had the advantage of having full forensic access to M.S. and accordingly has the broadest basis for his assessment

which is the most comprehensive by virtue of including blood work, sexual response (phallometric) testing and visual reaction time testing. His report and evidence includes the following observations and conclusions: 1. M.S.’s sex hormone profile was normal other than his free testosterone level that was slightly below the normal range. The experts agree that free testosterone is a major determinant in a male’s sex drive and the low level found is inconsistent with M.S. currently being hypersexual and may be seen to make him a more manageable risk in the community. 2.

Sexual arousal testing was more consistent with a comparison group of the general public as opposed to a pedophilic sample group. Dr. Bradford indicates that low test results in the face of M.S.’s known and admitted preference is likely due to his generally low arousal response. The pattern of response did however show some evidence of heterosexual pedophilia. Visual reaction time testing was also conducted and clearly showed heterosexual pedophilia and also showed some sadomasochistic interest towards adult females. 3.

On the Derogatis Sexual Functioning Inventory M.S.’s sex drive was at the 94 th percentile and his level of sexual fantasy was at the 98 th percentile. 4. He showed no cognitive distortions of significance. The lack of cognitive distortions would be a benefit to the treatment process. 5. M.S. did not score in a therapeutically problematic range on Dr. Bradford’s aggression questionnaire testing. 6. On the Michigan Alcohol Screening Test, he was in the alcoholism range and on his self-reporting met the D.S.M. IV criteria for alcohol dependence. 7.

On the Drug Abuse Screening Test he was in the substance abuse range, and on his self-reporting generated a D.S.M. IV diagnosis of cocaine dependence with physiological dependence and further cannabis dependence with physiological dependence. Given that alcohol and substance abuse can be significantly dis-inhibiting, the extent of his dependence on intoxicants may present a significant risk factor were he to be released into the community. 8. On the Hare Psychopathy Check List, Dr. Bradford rated M.S. 23 of a potential 40 top score.

This is considerably below the cut off a for classification of psychopathy which requires a total score of 30. He did not view the score to be a handicap or barrier for treatment. It is however a moderate score and in Dr. Bradford’s opinion would be a risk factor for future sexual recidivism. The score would put him at the 52.4% percentile of a male offender comparison group for recidivism. In contrast the range of scores for the general population is under 10. 9. Using the Static 99 Recidivism Indexes he scored M.S. at “5” which would put him at a medium – high risk for future sexual and violent recidivism.

In percentage terms this would translate to a 33% chance of sexual recidivism at five years, 38% at ten years and 40% at 15 years. For violent recidivism, this testing tool would suggest 42%, 48% and 52% at five, ten and 15 years respectively. On the Static 2002 test instrument his score of 8/14 would place him in the moderate to high risk category. 10. Dr. Bradford did not score M.S. on the VRAG and SORAG actuarial tools for the purposes of his report. 11. Dr.

Bradford felt there was clear evidence of sexual sadism in M.S.’s behavior based on his visual reaction time testing and also the doctor’s review of the videotape content which he testifies to include a sexually sadistic sexual preference. In Dr. Bradford’s experience sexual sadism very significantly increases the risk of sexual reoffending and he has conducted a study which shows the increased risk can be up to three times that of the normal offender population. 12. Dr.

Bradford made the following diagnosis in his report: Axis 1: Sexual and gender identity disorders paraphilias: Pedophilia; sexually attracted to females; nonexclusive type. Sexual and gender identity disorders; paraphilias: sexual sadism Cocaine dependence with physiological dependence. Cannabis dependence with physiological dependence. Alcohol dependence with physiological dependence. Sexual and gender identity disorders: sexual dysfunctions; sexual dysfunction NOS; nonparaphilic hypersexuality. Axis II: Antisocial personality disorder 13. Addressing the Dangerous Offender criteria in s. 753(1) (

b) from a psychiatric perspective in his report Dr. Bradford noted: “From a forensic psychiatric standpoint Mr. R.S. clearly from a diagnostic standpoint has two sexual deviations pedophilia and sexual sadism. In addition he clearly has a high sexual drive and specifically hypersexuality. Further, sexual sadism is an aggravating factor in

relation to risk of future sexual offence recidivism elevating the risk beyond the generally estimated risk. Mr. R.S. has a moderate high risk for future sexual offence recidivism. Although he does not have an extensive history of sexual offences, in my opinion, his most recent convictions clearly show he has difficulty controlling his sexual behavior and “has shown a failure to control his or her sexual impulses” as defined in Section 753(1) (

b) of the Criminal Code of Canada as outlined above. Further given the nature of the risk of future sexual offence recidivism being a moderate high risk it is reasonable to conclude that there is a “likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.” During the course of giving his evidence Dr. Bradford moderated his assessment of sexual offence recidivism from being a moderate high risk to being a moderate risk on the basis of my factual findings on the contested sentencing hearings.

That did not however alter his conclusion that there remained a likelihood of M.S. reoffending and causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses. 14. Dr. Bradford went on in his report to consider whether therapeutic intervention would create a reasonable possibility of eventual control of M.S.’s risk in the community to make a long term offender designation appropriate for M.S. and he noted: “Mr. R.S. has never received any psychiatric treatment for sexual deviation or any other sexual problems or disorders.

This is relevant in that he has never had the benefit of treatment and treatment impacts on the risk of future sexual offence recidivism. Mr. R.S. is willing to undergo whatever treatment is required and appears to be motivated for treatment. A person suffering from paraphilia or paraphilias such is the case here would benefit from a pharmacological treatment approach as well as psychological treatment using a relapse prevention technique. Subjects with high risk of reoffending are recommended for pharmacological treatment as the first line of treatment.

The combination of psychotherapy and pharmacological therapy is associated with improved efficacy compared to either therapy alone. The recommendation would be for a long acting LH rh agonist for pharmacological castration. These medications are given by injection every month or every three months. This ensures compliance and in addition to that, sexual hormone levels are monitored to ensure that the plasma testosterone levels remain in the castration level range. It is critical that there is no substance use or abuse and random urine screens are used to ensure that this is the case.

Formal addiction treatment in the case of Mr. R.S. would be a very important adjunctive treatment. Surgical castration, which provides the model for pharmacological castration, has shown dramatic reductions of sexual offence recidivism over long periods of time between five and 20 years in sexual offenders with high risk of recidivism. In my opinion, Mr. R.S. is a candidate for sex offender treatment and specifically pharmacological treatment. With this treatment his future rehabilitation and reintegration into the community is possible. This would bring him within the terms of the long-term offender section.

If there was a possibility that this would occur there needs to be significant conditions of monitoring and treatment. This would include treatment for sexual deviation using both a pharmacological and psychological treatment approach. There would have to be ongoing opened-ended substance use/dependence treatment. Significant monitoring should also be part of the conditions of treatment as well as random urine screens to ensure there is no substance abuse. Further, the condition and monitoring needs to be in place for the maximum period of time of ten years.

This would also have to be under an established sexual behaviours clinic with experience in this type of treatment and monitoring. Any future community reintegration would have to include a residence requirement, monitoring and curfews. As I understand it, this is the jurisdiction of the National Parole Board but strong judicial recommendations at sentencing would be considered by the National Parole Board”. 15. Dr. Bradford did express significant cautions about the viability of successful treatment for M.S..

In his report he stated: “My concerns related to treatment outcome/risk management are however that treatability has to be considered as an option with extreme caution for the following reasons: 1. M.S.’s combination of sexual sadism and pedophilia raise the estimated risk from moderately high to extremely high in terms of probability. In addition, sadism is unpredictable and can escalate to extreme violence. In contrast, most pedophiles are not sadistic. 2.

His treatment would have to be long term and open ended and without pharmacological castration as a treatment consented to by M.S., the risk is not likely to be attenuated for a long term offender consideration. I am giving him the benefit of the doubt as he has never been treated. 3. Further probability of re-offence has to be considered in terms of the nature of the future offences in terms of serious sexual violence and the possibility of escalation if in the community in the future. This is very difficult to absolutely predict but is of very serious concern. 4.

The level of substance abuse significantly raises the risk of a treatment failure. 5. Any treatment success will require complete cooperation, motivation and consent from M.S..

These are very serious risk issues in my opinion and have to be considered against treatment which would have to be intensive, long term and open ended. These risk factors may be so serious as to negate long term offender consideration in favour of a Dangerous Offender designation. As noted Dr. Bradford in his evidence, accepted that a reduced, moderate risk of re-offending was a better characterization of M.S.’s risk. Dr. Bradford believed the Parole Board could control M.S.’s risk upon his release.

He has been involved with the Ontario Review Board for many years which supervises similar offenders and finds the coercive power of the Boards leads to good success particularly given the ease with which the taking and effectiveness of the long acting sex drive reducing medications can be monitored. I accept his evidence in the regard as more applicable than the poor adherence to medication regimes seen in studies involving volunteers. 1. Dr. Ronald Langevin was called as a witness by the defense. In his evidence Dr.

Langevin noted M.S.’s low free testerone level to be a significant factor in reducing M.S.’s current level of risk to the community. The low testerone levels suggest that his past very high sexual drive is moderating and accordingly his past behavior is no longer as reliable a guide to his future behavior as it might otherwise be viewed to be. 2. Dr. Langevin views M.S.’s sexual preference to be for pubescent girls and would classify him as a hebephile rather than a pedophile.

He views it important to distinguish between individuals who are primarily attracted to younger, sexually immature children and one’s who are attracted to a more mature age range who are starting to develop secondary sexual characteristics. While the categorization of hebephilia as a sub-category of pedophilia is not officially recognized, it is accepted within the profession and may be significant from a therapeutic perspective as a perpetrator having a primary attraction to maturing children will be more able to satisfy his sexual desires with an age appropriate female. 3. Dr.

Langevin disagrees with the diagnosis of hypersexuality. He notes the low free testosterone levels and erectile dysfunction as physical evidence of a declining libido. He considers M.S.’s high sex drive years to be behind him. 4. With respect to M.S.’s cognitive thinking, Dr. Langevin noted no evidence of psychosis but did find him to be globally impaired on his neuropsychological tests which Dr. Langevin feels may be due to his unregulated diabetes. 5. Dr. Langevin also suggested M.S.’s diabetes may contribute to his past disorganized, callous and aggressive behavior.

He views M.S.’s scoring on the VRAG assessment guide to suggest M.S. would be at low risk for future aggressive offences. He views the VRAG to be a more reliable test for his purpose than the Static 99 and the Static 2002 relied upon by Dr. Bradford. 6.& 7. Dr. Langevin scored M.S. within normal limits for alcohol and drug use although noting the extent of marijuana use indicates there is a substance abuse problem. He disagrees with Dr. Bradford’s stronger view on the substance abuse issue.

He points out there were no withdrawal problems for M.S. with respect to alcohol or cocaine on being taken into custody and that marijuana is not known to create a physiological dependence. He also points out that M.S.’s drug and alcohol problems should be noted to be in remission due to his enforced abstinence over the four and a half years of pre-trial custody. 8. Dr. Langevin scored M.S. at 21 on the Hare Psychopathy as opposed to Dr. Bradford’s scoring of 23 and Dr. Hucker’s of 25.

As the psychopathy score is an important input factor in a number of the risk assessment tools, the variance may be of significance and occupied a significant amount of cross-examination and argument. The initial tentative report by Dr. Ramshaw, filed on the

Section 752 hearing that is referred to in the evidence and some of the reports is not before me in evidence on the

Section 753 hearing. Dr. Langevin views his psychopathy scoring to be well below a psychopathic classification and at a level where treatment is viable and

well within the range of the normal treatable penitentiary population as opposed to the existing dangerous offender population which tends to have psychopathy scores of over 30. 9. With respect to results on the risk assessment tools, Dr. Langevin pointed out that studies show that both actuarial and clinical psychological measures of assessing risk are poor predictors of an individual’s risk, assessing future recidivism with only about a 6% accuracy. He testified the research shows actuarial measures to be more accurate than clinical judgment.

He also testified that studies show the risk assessment tools tend to overstate risk. He does not view the Static 99 test to be as good an assessment tool as the VRAG as it does not require expert consideration of the information being used to input into the actuarial tool. He notes that on the Static 2002, M.S.’s risk is 15% at 5 years, and 17.9% at 10 years which would be low risk and given the margin of error for these tests would be indistinguishable from a zero percent risk. 10. Dr.

Langevin’s application of the VRAG shows M.S. to be a low risk for future violent offences (35% over seven years) and a moderate risk for future sexual offences (45% over seven years). His clinical evaluation is that M.S. is at moderate risk to reoffend without treatment and that he is a good prospect for successful treatment. 11. Dr. Langevin disputes Dr. Bradford’s conclusions with respect to sexual sadism. He knows of no studies that support Dr. Bradford’s research that shows it to be a major risk multiplier.

He also expresses concern in the difficulty of diagnosing sexual sadism particularly on the basis of the tapes where cocaine usage, alcohol and sex role playing obscures any clear conclusion. He views M.S. to be callous in meeting his sexual needs as opposed to meeting the D.S.M. IV criteria for sexual sadism. He also questions the accuracy and significance of Dr. Bradford’s testing on the visual reaction time tests which he views to be an unreliable and unsatisfactory basis for a finding of sadism. 12. Dr.

Langevin would classify M.S. as a hebephile who does not have a preference for violent sexuality and is at moderate risk to reoffend. 13. Dr. Langevin does not directly address the legal criteria that the Court must apply to determine if M.S. should be found to be a dangerous offender. He did testify M.S. does not meet either set of criteria on the basis that he is not one of the high risk untreatable violent offenders the legislation was intended for.

He approaches this issue from the perspective of looking at who courts have historically found to be dangerous offenders and notes that M.S. is different and less dangerous than that traditional group. Firstly, they are overwhelmingly at higher risk to reoffend on actuarial tools than the moderate risk posed by M.S.. He also notes that historically dangerous offenders have a different treatment background and prospect than M.S. he states: “Treatment compliance has been a major issue in past dangerous offender applications in which I have participated.

Typically dangerous offenders have had many opportunities for treatment, once charged with criminal offences, and either did not take advantage of opportunities provided or were repeatedly unsuccessful and uncooperative in treatment. Historically, every attempt was made by professionals to treat offenders before considering them dangerous and untreatable.

M.S. is an untreated sex offender, who desire to be in a treatment program, and it seems beneficial to him and society to be in such a program as part of his current sentencing, rather than pursuing a dangerous offender application, in which he would be detained indefinitely”. Mr. Langevin in his testimony emphasized the need to not lock people up and warehouse them.

He feels it is inappropriate for the dangerous offender provisions to be used for first offenders and that “the net is being broadened too far.” He clearly views a therapeutic approach to generally be a better one to be taking in situations such as M.S.’s. 14. With respect to the steps that should be taken to protect the community from future recidivism by M.S., Dr. Langevin stated in his follow-up report: “Dr. Bradford and I agree that M.S. is an untreated sex offender who wishes to participate in a treatment program.

However, I think the dangerous offender application is premature and that a Correctional Services of Canada treatment program available for sex offenders in prison is appropriate. As indicated in my report of September 8, 2009, page 10, the correctional Service of Canada has among the best programs available for sex offenders anywhere in the world. Their programs have been in operation for a number of years and include relapse prevention therapy, substance abuse programs, among others. M.S.’s participation in the program could be followed up in a community based sex offender program.

Following in custody treatment, he viewed M.S. to need a sex offender programme, substance abuse programming and counseling for diabetes. Given treatment and a prohibition on unsupervised contact with individuals below 16 years of age, Dr. Langevin would view M.S. to be at low risk of reoffending and could function safely in the community. Dr. Langevin was asked by M.S.’s counsel if M.S.

could be released now into the community with a Circle of Support group monitoring him. He was clearly taken aback by the suggestion and was reluctant to support immediate release for M.S. although he did indicate that with appropriate structures being put into place, he could function at a supervised halfway house. Dr. Steven Hucker also provided an opinion and testified. He was refused access to M.S. and his report is based on a review of the other reports and Dr. Bradford’s underlying medical files and test results for M.S.. He substantially concurs with Dr.

Bradford’s report and evidence, and tentatively supported Dr. Bradford’s evidence that M.S. could be controlled in the community. 1& 3. He agreed that M.S.’s low free testosterone levels support treatability as it is the engine of sex drive, but noted that the low test results were not determinative on the sex drive issue. 5. He viewed there to be significant aggressive elements to M.S.’s behavior shown on the videos and testified the more aggressive the past behavior the more predictive it is that an offender will recidivate. 6&7. Dr.

Hucker felt M.S.’s alcohol and drug abuse was in remission and had not likely reached addiction levels given the lack of withdrawal issues. He views the alcohol and drug abuse however to be a treatment concern as M.S. is a person who historically likes intoxicants. 8. Dr. Hucker scored M.S. 25 on the psychopathy scale which is within the accepted margin of error from Dr. Bradford’s score of 23.

He did not view M.S.’s early anti-social behavior to be sufficient or significant enough to be classified as a conduct disorder and as that finding is in his opinion necessary to make a diagnosis of an anti-social personality disorder he disagrees with Dr. Bradford’s finding in that regard and scored him as no disorder on the risk assessment tools. He did view M.S.’s score on any of the scoring to be high enough to cause concerns for treatment success that needs to be addressed. He noted the general population would score in the range of 7 or 8 on the scale. 9. He concurred with Dr.

Bradford’s opinion on the Static 99 risk assessment tool that M.S. is a moderate risk to reoffend. 10. Dr. Bradford placed M.S. in the fifth of nine categories on his VRAG assessment being a moderate risk to reoffend violently (35% over five years and 48% over ten years). He scored M.S. higher on the SORAG; there he placed him in the sixth of nine categories with a 58% likelihood of sexually reoffending over seven years and 76% over ten years. Dr. Hucker views the recidivism rates predicted by the actuarial tools to be understated as they are based on charged reoffending.

In his clinical experience many offenders commit crimes that they are not charged for leading to an inherent understatement of the risk to the community. Dr. Hucker also rated M.S. on the SVR-20 which is a non-actuarial clinical assessment checklist to assist in formulating opinions on the risk of future recidivism. Using these guidelines M.S. was shown to be a high risk to reoffend. 11. Dr. Hucker viewed Dr. Bradford’s diagnosis of sexual sadism to be reasonably supported. He acknowledges that it is debatable whether M.S. would meet the D.S.M.

IV classification, but feels his behavior to definitely be callous with no signs of concern for the distress his actions were causing the victims. His would use a narrower approached to the classification and not make a sexual sadism diagnosis. He also viewed M.S.’s more aggressive behaviors to be significant as they are more predictive of future recidivism. 12. Dr. Hucker viewed M.S. to be a hebephile with some interest in younger children. He supports Dr. Langevin’s opinion of voyeurism and that M.S. has significant anti-social traits short of the recognized disorder.

Considering all of the factors he viewed M.S. to be a moderate risk to reoffend relative to other sex offenders. 13 & 14. Dr. Hucker did not specifically address the legal criteria for M.S. to be found to be a dangerous offender. In the context of his treatment prospects, he agreed that M.S. should participate in a Corrections Canada in-custody treatment program. He did not consider that out of custody treatment would have the intensity needed to deal with M.S.’s problems.

As well, he supported the need for pharmacological treatment upon M.S.’s release, and did not view M.S.’s diabetes to be an impediment to its success. He testified that it is clearly not desirable to immediately release M.S. as the risk he poses to the community would be unameliorated. He stated: “There needs to be very serious intervention here. M.S. has a very entrenched sexual orientation and it is naïve to think it will go away”. Although Dr.

Hucker did not explicitly endorse the Long Term Offender option I consider his strong support for chemical castration as a risk reducing mechanism and his qualified optimism about M.S.’s treatment success to be implicit endorsement of this approach. 15. He testified that it is not possible to predict from a professional point of view in M.S.’s case whether treatment would be required after ten years. In his opinion, M.S. was clearly not an untreatable individual. His risk would reduce with age, but he is unlikely to be risk free without treatment until age 60 or 65.

He testified M.S.’s disposition is life-long and he cannot say that ten years would be too long for treatment. He considered that for M.S.’s own good he should be receiving treatment indefinitely. DISCUSSION OF THE EXPERT EVIDENCE The differences in the expert opinions proffered were the source of significant cross-examination and argument. It is noteworthy that the professionals were in agreement on significant issues.

All three consider M.S. to be a moderate as opposed to a high risk to reoffend. Both psychiatrists were strongly of the view that intensive custodial counseling is required before M.S. is released into the community which is supported to a weaker extent by Dr. Langevin. Dr. Langevin in his final report noted “I think the Dangerous Offender Application is premature and that a custodial Correctional Services of Canada treatment program for offenders is appropriate”. Dr. Langevin was clearly uncomfortable in his evidence about the possibility of immediate release.

While he could see M.S. being released into a halfway house, he did not feel he should be released until all of the elements are in place. To the extent their views on recidivism varied within the moderate range, a large component of their differences turned on their evaluation of M.S.’s psychopathy score which underpins a number of the assessment tools. The high and low scores given by Dr. Hucker and Dr. Langevin are within acceptable variations of Dr. Bradford’s 23 mean score and I accept it is the reasonable one to use. I do not accept the Crown’s argument that Dr.

Langevin had a bias to low score M.S. as exemplified by prematurely giving him a neutral score for phallametric testing when he was unable to perform these tests. As objective as the criteria may be for the inputs into these actuarial tests, some level of expertise may reasonably be needed and used and I did not see Dr. Langevin’s scoring on this point to be an unreasonable one and it was ultimately shown to be a correct one. Similarly the different treatment of previous offences by Dr. Bradford and Dr.

Hucker that supported their elevated scores have not been shown to be an improper or unreasonable application of the guidelines for the actuarial tools. All agree that M.S. psychopathy score is way above the normal population, but also far below the level needed for a finding of psychopathy which makes successful treatment unlikely. I accept the evidence of Dr.’s Bradford and Hucker that M.S.’s levels fall within a range that raises concerns for successful treatment outcomes, but at a level that addresses the depth of treatment and monitoring needed as opposed to a level that rules out treatment success. Both Dr.

Hucker and Dr. Bradford support their being sexual sadism as a component of M.S.’s sexual preferences. Given the D.S.M. IV classification requirement put into evidence, I consider Dr. Bradford’s diagnosis reasonable even if L.V. was consenting to the behavior. While Dr. Hucker and Dr. Langevin take a respectively narrower and narrower view of the criteria that have M.S. falling short of the diagnostic criteria, I accept the view of Dr. Bradford and Hucker that elements of sexual sadism are there. Dr. Langevin’s approach to the sexual sadism issue in my view can be criticized for being overly mechanical.

He appears to consider sexual sadism to be a non-issue if the D.S.M. IV criteria are not strictly met. Dr. Hucker’s approach of looking at a continuum of the behavior, from none to diagnostic, which permits a serious issue to exist even if the criteria fall short for the D.S.M. IV is in my view a more reasonable approach. I think it is significant as well that Dr. Bradford is relying on his sexual sadism diagnosis for the purposes of arriving at an enhanced risk assessment based on his own study.

I view it reasonable to consider that he is being internally consistent and applying a determination of sexual sadism that is consistent with his studies and experience. I do not consider the differences in the diagnosis of hebephilia versus pedophilia to have significance for this case. I would accept Dr. Hucker’s view that the primary preferences are hebephilic. That said M.S. has clearly offended against younger children and videotaped younger children and had children perform roles of younger children.

Younger children are clearly at risk from M.S. and given their increasing vulnerability as their age decreases any protective scheme will have to take into account that risk. To the extent that treatment prospects are improved the older his primary preference group is, by virtue of his ability to transfer that sexual desire to age appropriate women, we have direct evidence of his ability to have long-term relationships with women of legal age.

Accordingly, I do not consider the hebephile classification essential to support the inferences that can be drawn from his ability to maintain sexually satisfying adult relationships. While the doctors are all superficially consistent on the need for in-custody treatment, their approach to M.S.’s treatment needs differed. Dr. Langevin clearly favours out of custody treatment and supervision in the long term with a reduced emphasis on controls and supervision. Dr. Bradford and Dr. Hucker place more emphasis on the need for stricter long term controls and chemical castration.

I do not view the difference to flow from Dr. Langevin improperly taking on the role of an advocate for M.S. as the Crown submits. There is in my experience a reasonable range of perspectives that will in good faith be brought to bear on an issue such as the future treatability of an individual. Dr. Langevin is clearly concerned that the dangerous offender criteria may be expanded to individuals other than a narrow segment of proven dangerous and untreatable offenders.

He’s expressed concern as well about the poor access to treatment for dangerous offenders in the prison and the low release rate of dangerous offenders by the Parole board for monitoring in the community. He’s expressed his reservations about treatment within a prison setting and is supportive of out of custody programs as being more efficacious. As opposed to intentionally trying to help out M.S. as an individual, I view his different approach to be a reflection of his treatment-focused perspective.

As psychiatrists Dr. Bradford and Dr. Hucker are able to diagnose and provide a full range of treatment for sex offenders and are actively involved in doing so at the present time. In my view, the psychiatrists have a broader and better perspective on the treatment issues and to the extent their opinions are inconsistent with Dr. Langevin’s, I am satisfied their opinions should be preferred. POSITION OF THE PARTIES CROWN: The Crown submits that M.S. clearly meets the dangerous offender criteria set out in Section 753 (1) (

b) and has also argued Section 753 (1) (a) (

i) and Section 753 (1) ( a) (ii). They further submit that the threshold criteria having been met I should find M.S. to be a dangerous offender and ineligible for the lesser long-term offender status, on the basis that I cannot be satisfied there is evidence specific to M.S. that he can be rehabilitated within the ten year period of the time allowed for by a long-term offender supervision order. The Crown argues that the likelihood of M.S.’s successful treatment in the next ten years is an imponderable that should result in me not being satisfied that he can be eventually controlled in the community.

It is said that the tentative and qualified views of the experts in support of a long-term offender order are insufficient to support M.S.’s eventual release into the community on an unsupervised basis. The Crown further submits that the uncertainty here is such that the matter should be left to the discretion of the parole board to decide at any given point of time in the future whether M.S. can be monitored in the community, which they are obligated to do if he can satisfy the burden on him at the time.

They have also noted that successfully managing M.S.’s risk in the community will depend on close monitoring of M.S. and that existing resources are unlikely to meet the need. In the event the Court determines that neither dangerous offender or long-term offender status is found to be appropriate, the Crown submits an 18 to 20 year determinate sentence is appropriate for the crimes committed by M.S.. DEFENCE: The position of the defence is that the Supreme Court of Canada decision in R. v.

Lyons 1987 CanLII 25 (SCC) , [1987] 2 S.C.R. 309 mandates for Charter purposes that the dangerous offender designation be reserved for a small number of recalicitrent offenders who are clustered at or near the extreme end of dangerousness to the community. It is submitted that as M.S. is only considered to be a moderate risk to reoffend by all three of the experts and is essentially identical to an average penitentiary offender, as opposed to being comparable with the existing dangerous offender population, the finding should not be made.

They note in particular that M.S. has no previous record for sexual assault and no history of failed treatments that tends to characterize the dangerous offender population. Given the unanimous agreement among the experts that M.S. is treatable, he is not one of the select group of offenders whose behavior is pathologically or behaviorally intractable.

Even in the event the Court finds the dangerous offender criteria have been met, the defence submits the good prospects for M.S.’s treatability support me exercising the discretion permitted under the legislation and imposing a fixed sentence for M.S. below the four and half years he has already served in custody once enhanced credit is given for it. It is submitted a three year probation order and bars on him attending public locations where children might reasonably be expected to be, will be sufficient to control is risk in the community.

THE APPLICABLE LAW The Crown and defence have agreed that the applicable law for me to apply is the pre July 2 nd , 2008 version of the dangerous offender legislation which among other differences provided “the Court ‘may’ find the offender to be a dangerous offender” if it is satisfied that the applicable criteria are met as opposed to the current legislation which provides “the Court ‘shall’ find the offender to be a dangerous offender” if it is satisfied the applicable criteria are met. For convenience sake, the relevant

section of the Criminal Code as it existed at the time are as follows:

752 “Serious personal injury offence” means (

a) An indictable offence, other than high treason, first degree murder or second degree murder, involving (

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

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

Section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). … APPLICATION FOR FINDING THAT AN OFFENDER IS A DANGEROUS OFFENDER 753(1) The Court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

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

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

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

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

(4) If the Court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.

(5) If the Court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the Court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the Court may impose a sentence for the offence for which the offender has been convicted. … APPLICATION FOR FINDING THAT AN OFFENDER IS A LONG-TERM OFFENDER 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

(

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. 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), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography),

section 172.1 (luring a child), subsection 173(2) (exposure) or

section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), 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 behavior, 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 similar offences. Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and (

b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with

Section 753.2 and the Corrections and Conditional Release Act . If the Court does not find an offender to be a long-term offender, the Court shall impose sentence for the offence for which the offender has been convicted. The legal principles to apply in this matter have been succinctly set out by Justice Hill in R. v. Jones [2008] O.J. No. 2067 (S.C.J.) : The overriding principles giving general context to the dangerous offender/long-term determination may be summarized as follows:

(1) It is accepted that “ dangerous offender ” proceedings form part of the sentencing and their

interpretation must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code : R. v. Johnson (2004), 2003 SCC 46 (CanLII) , 177 C.C.C. (3d) 97 (S.C.C.) at paras. 23 , 28. The primary purpose of the dangerous offender regime “is the protection of the public”: R. v. Johnson , at paras 19, 29 ; R. v. Lyons (1987), 1987 CanLII 25 (SCC) , 37 C.C.C. (3d) 1 (S.C.C.) at 22 . That same overriding objective animates the long-term offender provisions: R. v. G.L. (2007), 2007 ONCA 548 (CanLII) , 225 C.C.C. (3d) 20 (Ont. C.A.) at para. 70 (leave to appeal refused [2008] S.C.C.A. No. 39).

(2) In Lyons , at 29, the Court emphasized that the dangerous offender sentencing provisions “carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative detention” – a carefully tailored set of criteria … to segregate a small group of highly dangerous criminals”. Generally, these offenders demonstrate a pattern of conduct that is substantially or pathologically intractable.

The Court must be alive to “the serious effect of indeterminate detention on the accused” where the accused is designated and sentenced as a dangerous offender ( R. v. Johnson , at para. 36 ) as these are “very profound consequences of the labeling procedure” with “the effects of an indeterminate sentence on a dangerous offender … profoundly devastating”: R. v. Lyons , at 30, 45-6. “A dangerous offender designation is perhaps the most serious punishment in the Criminal Code ” ( R. v. Allen (2007), 2007 ONCA 421 (CanLII) , 221 C.C.C. (3d) 261 (Ont.

C.A.) at para 15 ), with an indeterminate disposition generally considered to be a “drastic sentence”: R. v. Roberts (2007), 2007 ONCA 64 (CanLII) , 219 C.C.C. (3d) 32 (Ont. C.A.) at para. 33 .

(3) Expert psychiatric evidence assists the Court in assessing the offender’s risk to reoffend. The Court is not required to accept expert opinion testimony as it reaches its own conclusions: R. v. Hickey , [2008] O.J. No. 537 (C.A.) at para. 4 : R. v. Allen , at para. 30 ; R. v. R.M. 2007 ONCA 872 (CanLII) , [2007] O.J. No. 4856 (C.A.) at paras. 41 , 53.

(4) The Court must first look to whether the Crown has established the statutory criteria in s. 753 (1) (

a) and/or (

b) to justify a finding that the accused is a dangerous offender: R. v. F.E.D . (2007), 2007 ONCA 246 (CanLII) , 222 C.C.C. (3d) 373 (Ont. C.A.) at paras 34 , 50. Where the determination is made that the prosecution has discharged its onus, the sentencing judge has a discretion whether to declare the accused to be a dangerous offender with an indeterminate sentence to follow or to sentence the offender

in accordance with the ordinary principles of sentencing – “The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e. where a definite sentence or long-term offender designation are insufficient”: R. v. Johnson , at para. 29 . In other words, “[i] indeterminate detention under the dangerous offender regime is warranted only insofar as it actually serves the purpose of protecting the public”; R. v.

Johnson , at para 20 . (5) “[T]he purpose of the dangerous offender provisions is not to designate offenders as dangerous for the sake of designating offenders dangerous, but to protect the public: R. v. Johnson , at para. 34 . The focus is the “prevention of future violence” ( R. v. Jones (1994), 1994 CanLII 85 (SCC) , 89 C.C.C. (3d) 353 (S.C.C.) at 396) from individuals who present “a real and present danger to life or limb” ( R. v.

Hatchwell , 1974 CanLII 203 (SCC) , [1976] 1 S.C.R. 39 at 43) , persons apparently uninhibited “by normal standards of behavioural restraint” such “that future violent acts can quite confidently be expected”: R. v. Lyons , at 22. Such individuals are frequently diagnosed as psychopaths ( R. v. M.J.O. [2008] O.J. No. 1774 (C.A.) at paras. 117 , 125; R. v. F.E.D . ; R. v. G.L .; R. v. McCallum (2005), 2005 CanLII 8674 (ON CA) , 201 C.C.C. (3d) 541 (Ont. C.A.) (leave to appeal refused [2006] S.C.C.A. No. 145); R. v. S.R.S. (2007), 2007 ONCA 36 (CanLII) , 216 C.C.C. (3d) 119 (Ont. C.A.) ; R. v. J.F.H., [2002] O.J.

No. 362 (S.C.J.) (aff’d [2006] O.J. No. 383 (C.A.) ); R. v. J.M.C., [2005] O.J. No. 176 (S.C.J.) .

(6) In assessing future risk, and the prospects of in-community cont

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