R. v. D.J.M., 2019 BCPC 222

Citation: R. v. D.J.M. 2019 BCPC 222 Date: 20190404 File Nos: 82092-2; 72670-4 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.J.M. BAN ON PUBLICATION: 486.4(1) C.C.C.; 486.4(2) C.C.C.; 486.5(9) C.C.C. Section 16(4) Sex Offender Information and Registration Act ( S.O.I.R.A .): This

section provides that no person shall disclose any information that is collected pursuant to an order under S.O.I.R.A . or the fact that information relating to a person is collected under S.O.I.R.A. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: L. Fontaine Counsel for the Defendant: R. Dieno Place of Hearing: [Omitted for publication] , B.C. Dates of Hearing: June 6, 7, 14, 15, 18, 19, 20, 21 and November 19, 20, 21 and December 3, 2018 Date of Judgment: April 4, 2019 [ 1 ] THE COURT: Madam Clerk, these are reasons for sentence on Court File 82092-C-2.

At the outset of this hearing, an order was made directing that any information that could identify any victim or any witness shall not be published in any document or broadcast or transmitted in any way. That publication ban is still in effect.

[2] As I read this ruling, I intend to refer to victims and witnesses by their full names rather than reduce them to their initials. I dothis to indicate respect for their status as persons before the court, rather than letters. Any transcript of this ruling and any publication,broadcast, or other transmission must respect the publication ban. [3] D.J.M. (“Mr. M.” or “M.”) pleaded guilty to three counts of touching children for a sexual purpose contrary to s. 151 of theCriminal Code. He pleaded guilty to touching J.M. (“J.”) between November 1, 2003, and March 1, 2004.

He pleaded guilty tocommitting the same offences against R.C. (“R.”) and G.C. (“G.”) (the “C. children”) between July 2, 2008, and February 17, 2015.These offences are sometimes referred to as sexual interference. [4] For the purposes of this sentence hearing, they are sometimes referred to as the predicate offences. [5] The maximum sentence for sexual interference is now 14 years' incarceration. At the time of the offence against J.M., themaximum sentence was 10 years' incarceration. [6] The guilty pleas were entered on April 10, 2017. The court granted the Crown's application to have Mr.

M. assessed, and anassessment report was filed. On August 25, 2017, with the consent of the Attorney General, the Crown brought an application to haveMr. M. designated as a dangerous offender and to have him sentenced to detention in the penitentiary for an indeterminate period unders. 753 of the Criminal Code. [7] The hearing of the application commenced on June 6, 2018, and continued on a series of dates scheduled through the fall andwinter. The evidence on the application included an agreed statement of facts, as well as the oral evidence of C.M. (“Ms. M.”), Mr. M.'sex-spouse, and W.A. (“Mr.

A.”) [omitted for publication], Mr. M.'s friend and former [omitted for publication]. [8] The evidence also included written and oral opinion evidence from a psychologist and two psychiatrists, and oral evidencefrom employees of Correctional Services Canada regarding supervision of offenders in the community. [9] The Crown also led the evidence of B.D. (“Mr. D.” or “D.”) and his mother and father regarding the offence of indecent assaultcharged in Count 8. Mr.

M. had not pleaded guilty to that offence, but the Crown sought to prove the underlying facts beyond areasonable doubt in order that they might be considered an aggravating factor. [10] In addition to that evidence, many of the victims and people affected by these crimes read victim impact statements and Mr. M.accepted an invitation to address the court. [11] Ms. Fontaine, who appeared on this matter as Crown counsel, argued that the evidence established the preconditions for thedesignation of Mr. M. as a dangerous offender under s. 753(1)(

a) of the Criminal Code. She argued further that there was no reasonablepossibility of eventual control of the risk posed by Mr. M. in the community, and that there was no reasonable expectation that a sentenceother than an indeterminate sentence would adequately protect the public. [12] Mr. Dieno, counsel for Mr. M., argued that the public could be adequately protected by the imposition of determinate sentences.In his submission, neither an indeterminate sentence nor a long-term supervision order was called for. He argued that Mr.

M. should begiven one last opportunity to prove himself, and that his circumstances and the circumstances of his offences did not justify any morerestrictive sanctions. [13] Both parties originally made their submissions on the basis that the current provisions of

Part XXIV of the Criminal Code,which provides the sentencing regime for dangerous and long-term offenders, were applicable to the case at bar. The current provisionshave been in force since July 2, 2008. When questioned whether the current provisions could apply to Count 10, which was an offencecommitted before the current provisions came into force in 2008, the defence made written submissions and took the position that thepre-2008 provisions applied to all three predicate offences.

The Crown then accepted the defence position that the pre-2008 provisionsshould apply to all three predicate offences. [14] The first significant issue is whether the pre-2008 provisions of the Criminal Code regarding dangerous and long-termoffenders apply to all three predicate offences, or whether they apply only to Count 10, leaving Count 1 and Count 5 to be determinedunder the current provisions of the Criminal Code. [15] A second significant issue is whether the evidence establishes beyond a reasonable doubt, as an aggravating factor, that Mr.

M.indecently assaulted B.D. in 1972 and 1973. [16] A third significant issue is the weight to be given to the opinion evidence of the psychologists and psychiatrists who testifiedwith respect to the assessment of the risk of recidivism and the treatability of offenders in corrections and community settings. [17] Those issues must be resolved before I can determine the most significant issue, which is what sentence is just and appropriatefor Mr.

M. in the circumstances. [18] In order to resolve those issues, I will start with a general overview of the law, including sentencing principles and thedangerous offender legislation, and analyze what law is applicable in the circumstances of the case at bar. I will review the treatment ofevidence in dangerous offender hearings and the analysis of the criteria both before and after the 2008 amendments. I will then move toMr. M.'s background, including the circumstances of the convictions registered against him in 2013.

After those circumstances havebeen established, I will review the circumstances of the three predicate offences. Following that review, I will determine whether theevidence establishes the aggravating factors and what weight to give to the evidence of the psychologists and psychiatrists who testifiedas expert witnesses. Finally, I will apply the law to the circumstances to arrive at the appropriate sentence. [19] A dangerous offender hearing under

Part XXIV is a sentence hearing and is subject to general sentencing principles. Thegeneral principles and objectives of sentencing set out in s. 718 through s. 718.2 of the Criminal Code apply to dangerous offenderapplications: R. v. Johnson, 2003 SCC 46 , [2003] 2 S.C.R. 357 at paragraph 23.

[20] According to s. 718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and themaintenance of a justice, peaceful, and safe society by imposing just sanctions that have one or more of the stated objectives. Thatsection provides a list of objectives. Those objectives include, but are not limited to:

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

b) deterring the offender and other persons from committing offences;

c) separating offenders from society where necessary; and

d) assisting in rehabilitating offenders. [21] The authorities are clear, however, that in the context of the dangerous offender application, when sentencing objectives areranked in priority, the protection of the public from the risk of violent or sexual recidivism represented by the offender is the principalobjective: R. v. Lyons, (SCC), [1987] 2 S.C.R. 309 at paragraph 27, affirmed in R. v. Johnson, supra, at para. 19, andaffirmed in R. v. Boutilier, 2017 SCC 64 , [2017] 2 S.C.R. 936 at paragraph 28. [22] Those sentencing objectives may be met by observing certain principles.

The fundamental principle of sentencing set out ins. 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [23] In addition to that fundamental principle, s. 718.2 of the Code requires that certain additional principles be taken intoconsideration. They include: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, … shall be deemed to be aggravating circumstances; (

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

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders… [24] Under that umbrella of objectives and principles, dangerous offender hearings call for the application of the dangerous offenderprovisions of the Code applicable to the offences under consideration. Let me turn to that legislation now. [25] Dangerous offender legislation has been part of the Criminal Code since 1947. Significant amendments were made in 1977,1997, and most recently on July 2, 2008.

For the purposes of this ruling, the 2008 amendments are important. One of the offences wascommitted before 2008, two of the offences were committed after.

Although the defence took the position that the provisions in forcebetween 1997 and 2008, what I will call the pre-2008 provisions, apply to all three predicate offences and the Crown accepted thatposition, I find it necessary to review the appropriateness of that proposition. [26] The dangerous offender provisions enacted in 1997 called for a one-stage process in which the sentencing judge retained ameasure of discretion about whether or not to designate the offender as dangerous. Even if all of the statutory criteria of past and futuredangerousness set out in s. 753(1)(

a) or (

b) were established, the court could decline to designate the offender as a dangerous offenderand instead either find the offender to be a long-term offender or impose a conventional determinate sentence for the predicate offences. [27] However, if the offender was found to be a dangerous offender under the pre-2008 provisions, a sentence of detention in apenitentiary for an indeterminate period was mandatory. [28] The amendments came into force on July 2, 2008.

On that date, dangerous offender applications became a two-stage process.After the 2008 amendments, if the statutory criteria of past pattern of conduct and future dangerousness were satisfied at the first stage, adangerous offender designation was mandatory. In other words, the discretion was eliminated at the first stage. [29] However, the discretion re-emerged at the second stage.

Even if the offender was designated as a dangerous offender, unders. 753(4) the court could impose an indeterminate sentence, a determinate sentence followed by long-term supervision for up to 10 years,or a conventional determinate sentence for the predicate offences. [30] Designation as a dangerous offender, in other words, no longer resulted automatically in an indeterminate sentence.

[ 31 ] The defence takes the position that the law in effect before 2008 applies to all three offences, including the two that were committed after the law was amended. The Crown accepts that position. When those submissions were made, I had some difficulty accepting them with respect to the two later offences, the offences of sexual interference against G. and R.C. [ 32 ] With respect to the first offence in time, the offence of sexual interference against J.M., it is clear that under s. 11(

i) of the Canadian Charter of Rights and Freedoms , when the punishment for an offence has been varied between the time of commission and the time of sentencing, an offender is entitled to the benefit of the lesser punishment. [ 33 ] The pre-2008 provisions are more favourable to Mr. M. because, before 2008, the court retained a discretion to not designate the offender as a dangerous offender, even if the statutory criteria in s. 753 were satisfied: see R. v. Law , 2014 BCSC 1854 at para. 9 . [ 34 ] Accordingly, the sentence to be imposed on Mr.

M. on Count 10, which was committed between November 2003 and March 2004, should be governed by the pre-2008 provisions. [ 35 ] In contrast, the offences in Counts 1 and 5 were committed between July 2, 2008, and February 17, 2015, after the amended law came into force on July 2, 2008. As the Supreme Court of Canada put it in R. v.

Johnson , supra at paragraph 41 : 41 As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at the time that the offence allegedly was committed. … [ 36 ] Counsel did not refer me to any reported cases in which other courts have considered dangerous offender applications involving multiple offences, when the dates of the predicate offences straddled the date of any amendments to the dangerous offender provisions, and I was unable to find any myself. [ 37 ] However, the application before the court is for the offender to be designated as a dangerous offender.

If the final result is an indeterminate sentence or a long-term offender order, it will apply to all three of the offences Mr. M. pleaded guilty to. Applying different sentencing regimes to the two later offences could lead to inconsistent results. Accordingly, I accept that the law that applies to Mr. M. is the dangerous offender provisions as they existed prior to 2008. [ 38 ] The rules of evidence relating to sentencing hearings generally also apply to dangerous offender hearings.

In order to conduct a thorough inquiry and make an accurate evaluation of the future danger posed by the offender, the court should have the fullest possible information. The court must consider all relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender. [ 39 ] The party wishing to rely on a relevant fact has the burden of proving it.

Disputed facts must be proven on a balance of probabilities, except that when the Crown seeks to rely on previous incidents that did not result in conviction, it must prove the circumstances of the previous incidents beyond a reasonable doubt by evidence adduced on the dangerous offender hearing: R. v. Pike , 2010 BCCA 401 at paragraph 52 . [ 40 ] This is particularly important in the case at bar, as the Crown called B.D. and his parents to attempt to prove that Mr. M. was the person who indecently assaulted Mr.

D. in 1972, when D. was about [omitted for publication] years old. [ 41 ] The Crown also filed a number of exhibits, including police reports. Some of those police reports refer to investigations of Mr. M. in relation to incidents against children other than B.D. or the three children named in the counts he has pleaded guilty to. Those incidents have not been proven beyond a reasonable doubt and can be given no weight. [ 42 ] Relevant hearsay evidence is admissible to prove disputed facts, provided that it is established to be credible and trustworthy.

This applies to both the circumstances of the offences and to other conduct of the offender that does not form the subject of prior proceedings: R. v. Trevor , 2003 BCSC 1154 at paragraph 11 . [ 43 ] To the body of admissible evidence, I must apply the criteria in s. 753 . Section 753(1) deals with two categories of dangerousness. Subsection (

a) deals with dangerousness resulting from violent behaviour, and subsection (

b) deals with dangerousness resulting from offences of or attempts to commit an offence of sexual assault, sexual assault with a weapon, or causing bodily harm, or aggravated sexual assault. [ 44 ] Subsection (

b) cannot apply to Mr. M. because the sexual interference offences he pleaded guilty to are not included among the specifically named sexual assault offences. [ 45 ] Except for the substitution of the word "shall" for the word "may", s. 753(1) (

a) remained the same after the 2008 amendments as it had been before. In fact, it has not changed since the enactment of the scheme in 1977. [ 46 ] In R. v. Boutilier , 2017 SCC 64 at paragraph 26 , the Supreme Court of Canada referred back to R. v. Lyons at page 338, and said that the wording of s. 753(1) created four criteria.

The four criteria were: (1) the offender has been convicted of, and has to be sentenced for, a "serious personal injury offence"; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable. [ 47 ] Intractable conduct is behaviour that the offender is unable to surmount: see Boutilier , supra , at paragraph 27 . [ 48 ] Proof of intractability has been one of the criteria for the designation of an offender as a dangerous offender, both before and

after 2008. I will return to the concept of intractability and its application in this case later in these reasons. [ 49 ] If the court does not find an offender to be a dangerous offender, the next steps are set out in s. 753(5). The court may treat the dangerous offender application as an application to find the offender to be a long-term offender, in which case s. 753.1 applies to the application and the court may find that the offender is a long-term offender or hold another hearing for that purpose, or the court may impose a determinate sentence for the offence for which the offender has been convicted. [ 50 ]

Section 753.1(1) was not affected by the 2008 amendments. It reads: 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. [ 51 ]

Section 753.1(2) made it mandatory to find that there was a substantial risk that the offender would reoffend if he or she had been convicted of one of several enumerated sexual offences, including sexual interference, and the offence was either part of a pattern of repetitive behaviour that showed a likelihood of future harm to other persons, or formed part of conduct in any sexual matter that showed a likelihood of future harm to other persons. [ 52 ] Subject to certain exceptions which do not apply to the case at bar, if the court finds an offender to be a long-term offender, s. 753.1(3) provides that the court shall impose a sentence which must be a minimum punishment of imprisonment for a term of two years, and order that the offender be supervised in the community for a period not exceeding 10 years, in accordance with s. 753.2 and the Corrections and Conditional Release Act . [ 53 ] With that review of the law as a background, I will move on to Mr.

M.'s circumstances. [ 54 ] The details of Mr. M.'s background were primarily contained within the agreed statement of facts marked as Exhibit 5. Those details were supplemented by other evidence filed on the hearing, including the evidence of statements made by Mr. M. to the various psychiatrists who had interviewed him. [ 55 ] D.M. was born on [omitted for publication]. He was raised by his mother and father (“Mr. R.M.”) in the Lower Mainland of British Columbia. He had two brothers whose names were R.M. and K.M., and a sister named C.M. [ 56 ] Mr. R.M. was a strict disciplinarian.

He beat his son D.M. frequently. Mr .M. told Dr. Riar that after a beating, his mother would apply lotion to the bruises he sustained on his back and buttocks. At times he became sexually aroused by this. [ 57 ] Starting at the age of 11, Mr. M. began to run away from home after the beatings. Around the age of 16, he left home and supported himself. He engaged in and was convicted of several counts of theft and other offences. When he was about 17 years old, he was sent to the [omitted for publication] for several months. [ 58 ] Mr. M. attended high school until Grade 11.

After leaving school, he travelled across the country on his own and eventually made his way back to British Columbia. According to the transcript of his evidence under cross-examination at a previous proceeding and to the presentence report prepared by Shawn Charlton in 2012, after returning to British Columbia in his early twenties, Mr. M. attended Simon Fraser University as a mature student for a couple of years. [ 59 ] Around 1980, Mr. M. married a woman named W. They adopted a daughter. Their daughter is now in her [omitted for publication]. Mr.

M.'s first marriage lasted for about a decade. [ 60 ] In 1988, Mr. M. founded [omitted for publication]. The company became very successful and was still in operation when Mr. M. went into custody. At its peak, [omitted for publication] had 35 distributors selling components to [omitted for publication]. Since his incarceration, the company has faltered and may never recover. [ 61 ] Mr. M.'s second marriage was to Ms. M. They met at a fitness club in Vancouver when he was about [omitted for publication] and she was about [omitted for publication].

Shortly afterwards, they moved in together and then were married in February 1992. She said that Mr. M. had a varied background as a businessman, including selling suits and delivering [omitted for publication]. Later in 1992, they moved to [omitted for publication]. Ms. M. went to [omitted for publication] school at the [omitted for publication] in [omitted for publication], and Mr. M. continued to run his business. They had three children together born in [omitted for publication]. [ 62 ] During the course of his marriage to Ms. M., Mr. M.'s behaviours led to several contacts with psychologists, including a Dr.

Bowden and a Dr. Lea. They did not testify so I know very little of their qualifications, what opinions they formed of him, or what they told him, but their therapy appears to have shifted towards couples’ counselling. He did not receive focused sex offender treatment. [ 63 ] Ms. M. testified that they separated in 2003 or 2004. She moved into a separate residence [omitted for publication]. Their relationship became increasingly acrimonious, involving a long period of litigation in family court. [ 64 ] On April 29, 2010, Mr. M. was charged with multiple counts of sexual assault and touching for a sexual purpose.

There were three complainants, they were S.M., L.M. (“L.”), and D.M. S.M. was a friend of Mr. M.'s [omitted for publication]. L. and D.M. were [omitted for publication]. Mr. M. pleaded guilty to one count of sexual assault in relation to each of the three children, contrary to s. 271 of the Criminal Code . After he entered the guilty pleas, Mr. M. applied to have the guilty pleas expunged. That application was

dismissed. [ 65 ] According to the reasons for sentence of the Honourable Judge Koturbash in R. v. M. , November 6, 2013, [omitted for publication] No. 72670-1: [10] In the mid 1990s, Mr. M. and his then wife Ms. M. babysat [omitted for publication] L. and D.M. at their home in the Lower Mainland. During one of those occasions Mr. M. asked L. who was then [omitted for publication], to come into a bedroom. He asked her to lay down on her stomach and pulled down her pants. Mr. M. started massaging her buttocks. He then licked his fingers and alternated touching her anus with his wet fingers and his tongue.

He spread her butt cheeks apart and licked her from her labia to her anus. Mr. M. told L. to keep what happened between them a secret. [11] L’s brother, [D.] M., also was touched inappropriately by Mr. M. during that same time period. [D.] was approximately [omitted for publication] years old. Mr. M. and his wife C. were babysitting at the time as well. [D.] described Mr. M. sitting behind him when Mr. M. started rubbing his back and shoulders. He eventually removed D's pants and rubbed and licked his buttocks. He recalled a second incident when Mr.

M. pulled down the pyjamas and fondled his buttocks and scrotum. [ 66 ] Judge Koturbash went on to describe the offences committed against S.M. These offences were committed around 2008, after Mr. M. had separated with Ms. M. Judge Koturbash said: [16] The first incident S.M. (“S.”) recalled was when he was [omitted for publication] years old. He said that Mr. M. sat beside him at the M. household and began rubbing his back underneath his shirt. After the third or fourth occasion the rubbing progressed to Mr. M. touching his anus and penis. On one occasion Mr. M. also inserted his finger into S's anus.

The incidents occurred over a two year period and each incident lasted 10 to 20 minutes. Mr. M.'s own children were, at times, in the same room when the touching occurred. [ 67 ] Concluding that "it would be an abandonment of common sense to say that Mr. M. is not a danger to the community", Judge Koturbash declined to impose a conditional sentence and instead ordered that Mr. M. be incarcerated for two years less one day for the offence against S.M, and 18 months concurrent for the offences against L. and D.M. He recommended that the sentence be served at the Ford Mountain Institution, and ordered that Mr.

M. serve three years of probation following his release from custody. [ 68 ] Following his sentencing on November 6, 2013, Mr. M. filed an appeal against conviction. He was released on bail by an order of the Court of Appeal on December 17, 2013. The bail order included a condition that he not contact or communicate, directly or indirectly, with, and not be alone in the presence of certain persons named in the order, or any person he knows to be or who reasonably appeared to be under the age of 16 years of age. [ 69 ] Mr.

M. committed the offences in Counts 1 and 5 of the new information now before the court while he was at large in the community on bail. Before the appeal could be heard, the C. children told their parents that Mr. M. had touched them for a sexual purpose. Mr. M. was arrested on February 21, 2015, and has remained in custody since then. [ 70 ] His appeal against conviction was dismissed in oral reasons for judgment on March 11, 2015. [ 71 ] Following classification at the start of his sentence for the convictions entered by Judge Koturbash in 2013, Mr.

M. was sent to the Ford Mountain Correctional Centre near Chilliwack. Shawn Charlton, a probation officer employed by Community Corrections, explained that Ford Mountain provided sex offender treatment for inmates serving sentences there. However, because of the lack of medical care suitable for an inmate with Mr. M.'s medical needs, Mr. M. was reassigned to another facility. To Mr. Charlton's knowledge, Mr. M. has never completed a sex offender treatment program. [ 72 ] Before I go through the details of the predicate offences, I am going to stand down for five minutes.

If people want to leave the courtroom and stretch your legs in the hallway, you can. Mr. M., if you want to stretch, as well, I would be happy if you did that. I will see you in five minutes. [ 73 ] THE CLERK: Order in court, all rise. Court is stood down. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 74 ] THE CLERK: Court is reconvened, Your Honour, we are back on the record. [ 75 ] THE COURT: Thank you, Madam Clerk. [ 76 ] The predicate offences to this dangerous offender application were the crimes of sexual interference against J.M., G.C., and R.C.

I must review the circumstances of each. [ 77 ] The complainant named in Count 10 of the information is J.M. In 2003, J. was [omitted for publication] years old. He attended school and played soccer with Mr. M.'s [omitted for publication], [omitted for publication]. J. regularly spent time at the M. residence to swim in the pool, play games, or watch movies. From time to time, he slept at the M. residence overnight. [ 78 ] During the winter school break in December 2003, the M.s invited J. to stay with them for a couple of days at their condominium at the [omitted for publication] ski resort.

The condominium had an open-concept floor plan. The kitchen was separated from the living area by an island with bar stools. In the living area, there were two couches in an L-shape and the television. [ 79 ] After J. arrived, he watched a movie in the living room with the M. family. Ms. M. was in the kitchen. Mr. M. was on a couch by himself with an alcoholic drink and some jelly beans, and J. was sitting on the second couch with the M. children. Mr. M. called to J. to come sit beside him to watch the movie. A few minutes after J. sat beside Mr. M., M. started rubbing his back and legs on the outside

of his clothing. J. felt uncomfortable, so he got up and went to the bathroom. When he came back, Mr. M. asked J. to come sit back down with him. J. declined and M. continued to ask. Eventually, J. felt intimidated by M.'s insistence and returned to the couch beside him. [ 80 ] M. kept offering J. jelly beans and placed his hand on the child's leg. M. rubbed his legs and lower back, and then slid his hand underneath J.'s pants and into his underwear. M. stroked his finger between the cheeks of the child's bottom two to three times, and then removed his hand and licked his fingers.

J. got up and went to the bathroom again. [ 81 ] When J. next returned from the bathroom, M. invited him to sit beside him. This time the child declined and instead sat with the other children. J. recalls watching the end of the movie while Mr. M. acted like nothing had happened. To the best of his knowledge, everyone was focused on the television and did not know what M. was doing to him. J. felt scared to say anything at the time it was happening. [ 82 ] In 2007, Mr. M. became friends with J.C. (“Mr. C.”). Mr. C. had four children.

B. was born in [omitted for publication], G. was born in [omitted for publication], F. was born in [omitted for publication], and R. was born in [omitted for publication]. According to Mr. C., Mr. M. was as close as one could be to being a member of the C. family without having been born into it. [ 83 ] All of the C. children called Mr. M. "Uncle [omitted for publication]", and M. had a spare house key to the C. residence. [ 84 ] Starting in about 2010, when G. was about [omitted for publication] years old, Mr. M. would ask her to sit on his lap under a blanket while they watched television.

Her father would be in the room watching with them. M. would rub her back and then slide his hands down the front and back of her pants and underneath her underwear. He would rub her buttocks, her breasts, and above her vagina. She could not estimate how many times this type of touching occurred, but said that it happened a lot. [ 85 ] On another occasion, G. was in bed, about to go to sleep, and M. came in to say good night to her. He kissed her on the mouth and put his hand down her pajamas, touching her near her vagina and on her buttocks.

She told him that she needed to go to bed and he left her room. [ 86 ] G. recalled one summer day when Mr. M. came over and she stayed home while her siblings went to the park. She was alone in the house with M. He told her to sit on his lap and he began touching her on her buttocks and near her vagina. She was scared that he was going to take her pants off. He took off his glasses and started kissing her and put his tongue in her mouth. She gritted her teeth together to stop him from kissing her. He grabbed her wrist and tried to put her hand on his crotch a couple of times, but she pulled her hand away.

The incident stopped when her brother R. rang the doorbell. She could see that Mr. M. had an erection. [ 87 ] According to Mr. C., G. has been in therapy for three years. She has anxiety issues around men and an eating disorder. After several suicide attempts, she was committed to hospital for several days and placed on a suicide watch. Her father is in constant fear that she may kill herself. Her mother, H. V., has filed a victim impact statement describing G. as having become a different person. [ 88 ] The first time Mr.

M. touched R.C. for a sexual purpose was when the child was about [omitted for publication] years old in about 2012. Mr. M. had come over and was watching television with Mr. C. in the living room. M. asked R. to come sit on his lap. M. rubbed R.'s back and put his hand in the child's underwear to rub between the cheeks of his bottom. R. did not think that his father noticed this happening, even though he was in the same room. [ 89 ] Mr. M. touched R. a few times per month from the time R. was [omitted for publication] until he was [omitted for publication] years old.

The touching usually involved the child's lower back, buttocks, and his penis. The last incident occurred in mid-January 2015, or about a month before Mr. M. was arrested and his bail revoked. [ 90 ] R.C. was the last child that Mr. M. touched for a sexual purpose. R. wrote a victim impact statement. He explained that he was confused about how to feel after being hurt by someone he trusted. He said that he had hidden knives under his bed in order to be able to protect his family against Mr. M. [ 91 ] Count 8 alleges an indecent assault against B.D. between August 1, 1972, and April 30, 1973. Mr.

M. has maintained his plea of not guilty with respect to that charge. Nevertheless, the Crown has led evidence of the indecent assault against B.D. and seeks to rely upon that evidence as an aggravating factor. [ 92 ] The Crown bears the burden of proving aggravating factors beyond a reasonable doubt. This applies to, among other things, any transaction upon which the Crown relies to demonstrate the dangerousness of the offender. [ 93 ] B D.'s father, C.D. (“Mr. D.”), testified that he and his wife M.D. moved with their three sons (the “D. family” or the “D.s”) to [omitted for publication] in 1972.

He was studying at Simon Fraser University and posted an ad on the campus bulletin board offering room and board. In response to the ad, a young man named D.J.M. contacted Mr. D. and rented the room. B.D. testified that he was just turning [omitted for publication] at the time. Sometimes his parents would ask the boarder to babysit the three boys while they were at work or school. [ 94 ] B.D. remembered the boarder inviting him into the boarder's room and offering him pizza. He said that the boarder got him to lie face down on the bed watching TV. He was unclothed.

The boarder got him to spread his legs and would fondle his penis and testicles from behind. He said that this happened at least 10 times, maybe as often as 20 times. His brothers would be in the house when the incidents occurred. [ 95 ] The evidence of B.D. and of his parents was entirely believable. The person that was boarding at their house in 1972 committed the offence of indecent assault against him. The issue is whether the boarder is the same person as the offender before the court. C.D. remembers the young man saying that he was 19 years old. Mr.

D. thought he was attending Simon Fraser University, although he did not remember seeing him on campus. B.D. described the boarder as thin with long dark hair and a moustache. He remembered the young man driving a [omitted for publication] truck. M.D. recalled that the boarder had [omitted for publication] on his hands.

[96] Some of these details are generally consistent with descriptions of the offender. Mr. M. would have been about 24 years old in1972 and slightly older than the age C.D. remembers being given. [97] According to Shawn Charlton, Mr. M.'s bail supervisor, Mr. M. said that he attended Simon Fraser University while in his earlytwenties. Mr. M.'s former friend, J. C., testified that M. had [omitted for publication] on his hands. His ex-wife, Ms.

M., said that hisemployment history included delivering [omitted for publication] products. [98] There was no identification by witnesses in court of the offender in the dock, for whatever limited amount of weight that mighthave been given. A picture of the D. family and the boarder from 1972 on a vacation trip was marked as an exhibit. Given the passage oftime and the quality of the photograph, it was of little use in linking the young man who indecently assaulted B.D. to the offender in thecourtroom. [99] The manner in which the offences were committed against B. D. is similar to the manner in which Mr.

M. committed thepredicate offences and to the manner in which Mr. M. committed the offences for which he was sentenced in 2013. Similar fact evidencemay be admissible on the issue of identity. However, the Crown bears the onus of establishing admissibility. Normally that is done on avoir dire after giving notice to the defence. In this case, there was no application to admit similar fact evidence.

I cannot consider thesimilarity of the manner in which the offences were committed on the issue of identity. [100] Beyond a reasonable doubt is a standard of proof based upon reason and common sense, logically derived from the evidence orlack of evidence. Reasonable doubt does not include imaginary or frivolous doubts or doubts based upon sympathy or prejudice. Beyonda reasonable doubt is something more than a high probability, although less than absolute certainty. Mr. M. does not have to establish areasonable doubt.

It is up to the Crown to dispel it. [101] After careful consideration, the difference in physical appearance and slight difference in the apparent age of the boarder alonemight raise a reasonable doubt, but in this case the matching names, the approximate age, the connection to Simon Fraser University, theevidence of [omitted for publication], and the connection to the delivery of [omitted for publication] is sufficient to dispel the possibilityof an innocent coincidence and establishes, beyond a reasonable doubt, that Mr.

M., the offender before the court, is the same person thatrented a room from the D.s and who indecently assaulted B.D. [102] In this case, the court had the benefit of the evidence of a psychologist and two forensic psychiatrists who were qualified to giveopinions in the area of risk management for future sexual violence and the management and treatment of dangerous and long-termoffenders. The psychologist was Dr. Nalini Joneja, who prepared a psychological presentence report at the request of the court for thesentence proceedings in 2013. The psychiatrists were Dr.

Kulwant Riar, who conducted a psychiatric assessment pursuant to s. 752.1(1)of the Criminal Code, and Dr. Shabehram Lohrasbe, who was retained by the Crown to provide an additional psychiatric assessment. [103] The opinions of experts concerning risk assessment and treatability play a particularly significant role in dangerous offenderproceedings. In R. v. Pike, supra at paragraphs 61 and 63, our Court of Appeal said: [61] Psychiatric evidence plays a vital role in dangerous offender proceedings, furnishing the sentencing judge with "an expert opinionon the

interpretation of past conduct and the likely future conduct of the offender based on his or her past behaviour": Neve at para. 182. … [63] It remains, however, the undivided responsibility of the sentencing judge to make all requisite findings of fact, including thoseregarding the alleged conduct upon which a psychiatrist bases his or her opinion. A psychiatric opinion is not evidence of the facts uponwhich it is based. If the court is not independently satisfied as to the truth of those facts on the basis of evidence presented at the hearing,then the value of the ultimate opinion is correspondingly diminished: R. v. Knight

(1975) CanLII 1424 (ON SC), (ONSC), 27 C.C.C. (2d) 343 at 354, 356… [104] The court went on: As explained by the Supreme Court of Canada in Wilband: The value of a psychiatrist's opinion may be affected to the extent to which it may rest on second-hand source material; but that goes tothe weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information butevidence of the opinion formed on the basis of that [opinion]. [105] In that same case, the Court of Appeal cited R. v.

Neve again to provide this non-exhaustive list of factors to be considered whenassessing the weight to be given the psychiatric evidence.

In paragraph 64, the court said: [64] In Neve, the Alberta Court of Appeal listed the following non-exhaustive list of considerations to assess the value of psychiatricevidence… 1. the qualifications and practice of the psychiatrist; 2. the opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoingtreatment, and involvement with the institution in which the person is a patient or prisoner; 3. the unique features of the doctor-patient relationship, such as hostility or fear by the patient (or the psychiatrist) arising from thepersonalities, the circumstances of the contact, and the role of the psychiatrist; 4. specifically and precisely what documents the psychiatrist had available and reviewed, for example, from earlier court proceedings,institutional records, other medical consultations, or treatment;

5. the nature and scope of consultations (this could include: personal contact with third parties, information from other health care professionals, prison authorities, police, lawyers, family); 6. specifically and precisely what the psychiatrist relies on in coming to an opinion; and 7. the strengths and weaknesses of the information and material that is relied on. [ 106 ] Throughout the evidence of these three experts, there were references to a Dr. Schweighofer. It was suggested that Mr. M. had voluntarily taken treatment with Dr. Schweighofer. An opinion letter from Dr.

Schweighofer was produced by the defence and put to the witnesses. However, Dr. Schweighofer was never called to testify in the defence case and his credentials were never established. His opinion letter was marked as an exhibit, because there had been considerable cross-examination on it, but I cannot give any weight to his opinion because the facts upon which it is based were not independently proven in evidence. [ 107 ] To the extent that Dr. Riar or Dr. Lohrasbe relied on facts asserted in Dr.

Schweighofer's letter, the weight to be given to opinions drawn on those points will depend on the degree to which the opinions are supported by admissible evidence. [ 108 ] Dr. Riar offered various opinions with respect to the level of risk of recidivism posed by Mr. M. At one point, he described the risk as moderate. In cross-examination, he described the risk as moderately low. In the concluding paragraphs of his written report, Dr. Riar wrote, "I feel that his risk is certainly moderately high." When pressed on this point, he said these were arbitrary categories and not particularly helpful. He said Mr.

M. fell in the middle somewhere. This vague answer was not particularly helpful. [ 109 ] One of the two risk assessment tools used by Dr. Riar was a psychopathy checklist called the PCL-R. When completing that checklist, Dr. Riar scored Mr. M. favourably for behavioural control because, according to Dr. Riar, M. was very compliant and got along well with people. He does not seem to have taken into account that M. was in custody at the time of the assessment, because he sexually interfered with two children while at large in the community on bail granted by the Court of Appeal. [ 110 ] Dr.

Riar also scored M. relatively high on early behavioural problems and juvenile delinquency, despite the fact that M. had been on probation or detained at the [omitted for publication] for lengthy periods of his teenage years. [ 111 ] Dr. Riar generally agreed with the opinions formed by Dr. Lohrasbe. He testified, "Basically we are saying the same thing." [ 112 ] Given the weakness of the information Dr. Riar relied on and the lack of specificity with which he framed his opinion, I am unable to give great weight to anything that Dr. Riar said that was not consistent with Dr.

Lohrasbe's opinion. [ 113 ] In the context of that review of the applicable law, the offender's circumstances, and the circumstances of the predicate offences, the final step is to apply the law to the facts to reach the appropriate sentence. [ 114 ] The first question is whether the offender is being sentenced for a serious personal injury offence, as that phrase is defined in s. 752 of the Criminal Code .

Prior to the 2008 amendments, a serious personal injury offence was defined as an indictable offence involving the use of violence against another person, or involving conduct endangering the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender might be sentenced to imprisonment for 10 years or more. [ 115 ] Not all victims of sexual interference suffer severe psychological damage. Dr. Lohrasbe described what he called a "spectrum of resiliency".

Some victims are at the low end of that spectrum, but many more unfortunate victims find themselves at the high end. The effect of the offence on victims like G.C. satisfies me that sexual interference is an indictable offence involving conduct inflicting or likely to inflict severe psychological damage on another person. [ 116 ] The offender might be sentenced to imprisonment for 10 years for any of the sexual interference offences before the court.

I am satisfied that the offender is being sentenced for a serious personal injury offence as that term is defined in s. 752, as it appeared before 2008. [ 117 ] The next criteria is whether the predicate offences are part of a broader pattern of violence. Section 753(1)(a)(

i) speaks of a pattern of repetitive behaviour by the offender of which the offence for which he has been convicted forms a part, showing a failure to restrain his or her behaviour, and subsection (ii) speaks of a pattern of persistent aggressive behaviour by the offender of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender regarding the reasonably foreseeable consequences of the behaviour. [ 118 ] In the case at bar, the pattern is made up of the offences for which Mr.

M. was convicted in 2013, which were the offences against S.M. and L. and D.M., along with the conduct in 1972 and 1973 involving B.D. All of those incidents seem strikingly similar to each other. Mr. M. repeatedly targeted children with whom he had a prior relationship and persistently touched their genitals for his sexual pleasure. Mr. M. pursued this conduct, despite the close presence of other adults or children. He appears to have been unable to restrain his behaviour. I am satisfied that his sexually intrusive behaviour was part of a repetitive pattern within the meaning of s. 753(1) (a)(

i) of the Criminal Code . [ 119 ] The next criteria that must be satisfied is that the predicate offences be part of the identified pattern of conduct. The three predicate offences against J.M., G.C., and R.C. are eerily similar to Mr. M.'s conduct in the past against other children. The elements of a close family association, the selection of the child, the conduct in the near presence of others, and the manner in which he touched the children were almost identical. I am satisfied that the predicate offences form part of the repetitive pattern. [ 120 ] According to both Dr. Lohrasbe and Dr. Riar, Mr.

M. is almost certainly a pedophile. Dr. Lohrasbe explained that pedophilia cannot be cured, although in some cases it can be managed. Mr. M.’s pedophilia is, according to Dr. Lohrasbe, the central driver of his risk of harmful recidivism.

[ 121 ] Dr. Lohrasbe's impression of Mr. M. was that he was immature and superficial, despite his age. He was concerned that during his interview, Mr. M. denied deliberately touching the genitals of his victims, despite having admitted that particular fact in both of the agreed statements of facts filed with the court. [ 122 ] Dr. Lohrasbe said that this sort of minimization or deflection diminished the prospects of therapy and was unusual in offenders of Mr. M.'s age. He concluded that Mr. M. was deceptive, exploitive, and manipulative. [ 123 ] Dr. Lohrasbe observed that Mr.

M. attempted to present himself as having obtained an insight that he did not actually have. He said, for example, that M. used jargon that he did not understand and gave M.'s use of the word "psychosis" in an inappropriate context as an example of this. [ 124 ] Dr. Lohrasbe also emphasized the recklessness involved in Mr. M.'s offences against the C. children. He saw a recklessness at two levels: first, the immediate recklessness of committing offences while other children and adults were present or nearby; and second, the recklessness of committing offences while on appeal bail for similar offences.

He said that this degree of recklessness served as a caution about the power of Mr. M.'s deviancy. [ 125 ] Mr. W.A., [omitted for publication], testified about his willingness to supervise Mr. M. in the community. He had been Mr. M.'s [omitted for publication] and they had become close friends. I am not the least bit satisfied that Mr. A. would be an effective supervisor. He had not reviewed the psychiatric assessments to gain an understanding of the challenges that M. faces.

He said that the sentencing process had been a travesty to M., and at times he seemed to minimize the seriousness of M.'s offences. [ 126 ] After a thorough consideration of the evidence, I accept Dr. Lohrasbe's conclusion that the known facts suggest a trajectory of high risk, and I find that, if he is not successfully treated, Mr. M. presents a high likelihood of harmful recidivism. [ 127 ] The final criterion is the question of intractability. Intractable conduct is behaviour that the offender is unable to surmount and involves a prospective assessment of their treatability.

In Assessing Dangerousness; A Guide to the Dangerous Offender Application Process , Joseph Neuberger wrote [as read in]: Treatability refers to the ability and likelihood to effectively treat, manage, or rehabilitate an offender. The dictionary definition of "treat" is to try to cure or alleviate.

The ability to effectively treat an offender and cure, ameliorate, or manage the condition, mental disorder, or behaviours that led to dangerous behaviour in the past and which, if unresolved, will likely result in future dangerous behaviour, is a factor relevant to determining future risk or danger posed by an offender. Treatability is relevant at both the designation stage and the penalty stage of the dangerous offender proceedings. Neuberger, Joseph A. et al. Assessing Dangerousness: Guide to the Dangerous Offender Application Process .

Toronto: Carswell, 2011 (looseleaf updated 2018). [ 128 ] The question of intractability or treatability is complicated by the fact that Dr. Lohrasbe and Dr. Riar were both asked to answer questions based on the assumption that Dr. Schweighofer's psychiatric or therapeutic opinion was a fact established in the evidence. [ 129 ] Dr. Schweighofer's opinion was never admitted as a fact by the Crown and Dr. Schweighofer himself was never called to testify by Mr. M. For example, Dr. Lohrasbe based his opinion regarding intractability on Dr.

Schweighofer's purported opinion that M. had shown significant shifts in dynamic factors such as acceptance of responsibility and acknowledgement of harm during therapy. As I indicated earlier, I can only rely on the opinions of Dr. Lohrasbe and Dr. Riar insofar as they are supported by other facts found in the evidence. [ 130 ] Dr. Lohrasbe pointed to three other indicators that Mr. M. might pose a lower, manageable level of risk for sexually assaulting children in the foreseeable future.

They were his advancing age, the salutary effects of these sentencing proceedings, and most importantly, the likelihood for effective, focused risk management. Both Dr. Lohrasbe and Dr. Riar viewed abstention from alcohol and a prohibition against contact with children as workable, effective risk management tools. [ 131 ] In cross-examination by Mr. Dieno, Dr. Lohrasbe was asked about intractability. He agreed that it could not be said that Mr. M. was intractable. He explained that since it could not be said that Mr. M. was untreatable, it could not be said that he was intractable. [ 132 ] Ms.

Fontaine submitted that Mr. M. minimizes his culpability and pays no more than lip service to his amenability to treatment. While there is some support for those propositions, I am not satisfied the evidence is strong enough that I should reject Dr. Lohrasbe's opinion regarding intractability. [ 133 ] Kandace Goldstone, an employee of Correctional Services Canada, provided information about the types of treatment made available to inmates in the federal penitentiary system. She described both the nature of and the time requirements of the medium intensity and high intensity programs.

She said that the high intensity program could be provided if the sentence was four years in length, and the medium intensity program could be provided if the sentence was between three and four years in length. [ 134 ] I am satisfied that, after allowing for the inadmissible effect of Dr. Schweighofer's purported opinion, the opinions of Dr. Lohrasbe and Dr. Riar still support a conclusion that Mr. M.'s conduct is not intractable.

Given the availability of sex offender treatment, I am satisfied that the likelihood of him causing injury or inflicting severe psychological damage on other persons through failure in the future to restrain his behaviour can eventually be controlled in the community. [ 135 ] It follows from my conclusion with respect to intractability, the last of the four criteria discussed above, that I cannot designate Mr. M. as a dangerous offender under the pre-2008 dangerous offender provisions in the Criminal Code . I will treat the Crown's application as an application to find Mr.

M. to be a long-term offender under s. 753.1(1). [ 136 ]

Section 753.1 has been set out above. Mr. M. may be found to be a long-term offender if: (

a) it would be appropriate to impose a sentence of imprisonment for two years or more for the offence for which he 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. [ 137 ] The first question is whether a sentence of two years or more is appropriate. In R. v. Spilman , 2018 ONCA 551 , Mr. Justice Watt distinguished dangerous offender and long-term offender proceedings from other sentencing proceedings.

He held that the sentencing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence in a regular hearing, subject to three constraints: first, the custodial sentence cannot exceed the maximum term of imprisonment for the predicate offence; second, the sentencing objectives, principles, and factors in ss. 718 through 718.2 must not be ignored; third, the quantum of sentence must be responsive to the evidence adduced at the hearing. [ 138 ] In the circumstances of this case, the sentencing objectives and principles require that denunciation, deterrence, and the separation of the offender from the community be the primary factors.

Given Mr. M.'s 2013 convictions and the other aggravating factors, and taking into account his guilty pleas, I am satisfied that a sentence of at least two years would be appropriate with respect to Count 10, the offence against J.M., and that sentences in excess of two years would be appropriate with respect to the offences against G. and R.C. [ 139 ] The second question is whether there is a substantial risk that Mr. M. will reoffend.

For the purposes of determining if an offender is a long-term offender, s. 753.1(2) requires the court to be satisfied that there is a substantial risk that the offender will reoffend if the offender has been convicted of sexual interference, and the offender has shown a pattern of repetitive behaviour of which the offence for which he is being convicted forms a part, and shows a likelihood of the offender causing injury or inflicting severe psychological damage on other persons. [ 140 ] The question is very similar to the consideration of the dangerous offender criteria set out above.

For those same reasons, I am satisfied that Mr. M.'s offences form part of a pattern of repetitive behaviour which shows a likelihood that he will cause injury or severe psychological damage to other persons. If untreated, there is a substantial risk that he will reoffend. [ 141 ] The final question is whether there is a reasonable possibility of eventual control in the community. Again, this question is similar to the consideration of the dangerous offender criteria set out above. On the basis of the evidence of Dr. Lohrasbe regarding intractability, as well as the evidence of Dr.

Riar, I am satisfied that there is a reasonable possibility of eventual control of Mr. M. in the community. Accordingly, Mr.

M. will be found to be a long-term offender. [ 142 ] Under the pre-2008 dangerous offender provisions, following a finding that an offender is a long-term offender, the court shall impose sentence for the offences for which the offender has been convicted and order the offender to be supervised in the community for a period not exceeding 10 years, when the offender has finished serving the sentences for which he has been convicted and any other sentence of imprisonment. [ 143 ] Any sentence imposed by the court should be increased or reduced to account for any aggravating or mitigating factors.

Age is sometimes considered a mitigating factor. In this case, it is not. Mr. M. is an outlier, in that he persisted in committing sexual offences even as he became older. [ 144 ] One significant mitigating factor is that Mr. M. pleaded guilty. His guilty plea is some indication of remorse and has spared his victims from the stress and anxiety of appearing in court to testify against him at a trial. However, the aggravating factors are stark. [ 145 ] When sentencing Mr.

M. to jail for two years less one day in 2013, Judge Koturbash said: In the case at hand, the protection of the public, denunciation and deterrence are paramount. People like yourself, Mr. M., who place their sexual gratification above the proper emotional and sexual development of a child should fully expect to be treated severely by the courts. People like yourself, Mr.

M., need to know that they will pay a heavy price for this type of behaviour and they should expect little compassion from the courts. [ 146 ] I would say the same today. [ 147 ] Despite that warning from Judge Koturbash, following his release on bail by the Court of Appeal, Mr. M. continued to offend against children. The offences against G.C. had particularly dire effects. [ 148 ] Another consideration is whether the sentences should be concurrent or consecutive. Concurrent sentences are typically imposed when the different offences are a linked series of acts within the same event or endeavour.

Regardless of the similarities in conduct, the offence in Count 10 against J.M. predates the offences in Count 1 and Count 5 by many years. The offences in Count 1 and Count 5 against R.C. and G.C. were entirely separate events, unconnected to each other in any way. I am satisfied that the sentences to be imposed should be consecutive. [ 149 ] A final consideration is the amount of time that Mr. M. has spent in presentence custody waiting for the conclusion of his sentence hearing. Time spent in presentence custody is regularly served in difficult conditions without access to rehabilitative programs.

An offender may be given credit of up to one and a half days for each day spent in presentence custody. [ 150 ] By my calculation, Mr. M. served eight months of the sentence of two years less one day imposed on him before he was released on bail by the Court of Appeal on June 6, 2014. He was arrested on February 21, 2015, and has been in custody since. The sentence imposed in 2013 would have expired in June 2016, and he has been in custody on these charges only since then. As a result, he has spent 33 months in presentence custody. [ 151 ] Mr.

M., would you please stand, sir. [ 152 ] Had these matters come before the court before the consideration of presentence custody, I would have imposed sentence as follows: Count 1, the count of sexual interference against R.C., imprisonment for 36 months; Count 5, sexual interference against G.C., imprisonment for 40 months consecutive; Count 10, sexual interference against J.M., imprisonment for 24 months consecutive.

[ 153 ] The total length of sentence before the consideration of presentence custody would be 100 months, or eight years and four months. Given all of the factors and considerations in this case, I find that a sentence of that length is not substantially above the normal level of sentence for these offences, particularly in the context of a dangerous offender hearing, and the effect is not a crushing sentence not in keeping with your history and circumstances. There is no need to adjust the totality of the sentence to comply with s. 718.2 (

c) of the Criminal Code . [ 154 ] You have served 33 months of presentence custody and will be given credit for 50 months or four years and two months. The effect is that the sentence from today's date, after accounting for presentence credit, is a sentence of four years and two months new time. [ 155 ] Following your release from custody, you will be supervised in the community for a period of eight years, in accordance with s. 753.2 of the Criminal Code and the Corrections and Conditional Release Act . [ 156 ] The terms of the long-term supervision order will be set by the Parole Board of Canada.

I recommend that you be required to abstain from alcohol and be prohibited from contact with children you know to be or who reasonably appear to be under the age of 16 years old. [ 157 ] Pursuant to s. 743.21(1), I order that while you are in custody, you shall have no contact or communication with any person named as a complainant on Information 82092-C-2. [ 158 ] Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for life. [ 159 ] Pursuant to s. 490.012, I am directing that you be subject to the Sex Offender Registry for life. [ 160 ] Counts 1, 5, and 10 on this information are primary compulsory designated offences.

Pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the National DNA Data Bank. [ 161 ] Finally, pursuant to s. 760 of the Criminal Code , I order that the following information be provided to the Correctional Service of Canada: 1. a copy of the reports prepared by Dr. Lohrasbe, Dr. Riar, and Dr. Joneja; 2. a transcript of the evidence given by Dr. Lohrasbe, Dr. Riar, and Dr. Joneja on this application; and 3. a copy of these reasons for sentence. [ 162 ] Ms.

Fontaine, the Crown may wish to stay the outstanding counts. [ 163 ] MS. FONTAINE: Yes, Your Honour, as well as the information that was also on the list, sorry, I have the number in front of me, 7 -- [ 164 ] THE COURT: 72670-BC-4. [ 165 ] MS. FONTAINE: That is correct. [ 166 ] THE COURT: Is there anything further, Ms. Fontaine? [ 167 ] MS. FONTAINE: No, I believe that concludes everything, Your Honour. [ 168 ] THE COURT Mr. Dieno? [ 169 ] MR. DIENO: No, Your Honour. [ 170 ] THE COURT: Thank you both very much. (REASONS CONCLUDED)