2018 QCCQ 4962, 2018 QCCQ 4962

Translated from the original French R. c. Perreault 2018 QCCQ 4962 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-01-152069-172 DATE: July 12, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE ALEXANDRE DALMAU, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. Daniel PERREAULT Offender ______________________________________________________________________ JUDGMENT ON SENTENCING AND APPLICATION UNDER

SECTION 753.1 OF THE CRIMINAL CODE (LONG-TERM OFFENDER) ______________________________________________________________________ [ 1 ] On July 27, 2017, the offender pleaded guilty to the following counts: Count 2: Between August 7, 2015, and March 16, 2017, in the City and District of Montreal, while subject to a probation order in court files 760-01-069000-146 and 760-01-069001-144, did fail or refuse to comply with a condition of the order, to wit: not to use the Internet or other digital network except in the context of his employment, thereby committing an indictable offence under s. 733.1(1) (

a) of the Criminal Code . Count 8: Between August 7, 2015, and March 16, 2017, did make child pornography, thereby committing an indictable offence under s. 163.1(2) of the Criminal Code . Count 11: Between August 7, 2015, and March 16, 2017, while subject to an order of prohibition issued on 19-12-2014 in file 760- 01-069000-146 prohibiting him from having contact with persons under the age of 16 years, did fail to comply with this order by communicating via Internet with persons under the age of 16, thereby committing an indictable offence under s. 161(4) (

a) of the Criminal Code . [ 2 ] On that date, while entering the guilty pleas, the offender admitted to the facts as related by the Crown prosecutor. [ 3 ] At the time these offences were committed, the offender was under a probation order prohibiting him from using the Internet or other digital network except in the context of his employment. [ 4 ] In addition, he was also subject to a probation order prohibiting him from having contact with persons under the age of 16 years, issued under s. 161 of the Criminal Code . [ 5 ] An investigation began after police were alerted by a woman who saw the offender using a computer for purposes unrelated to his job. [ 6 ] The police obtained a search warrant and seized two smartphones associated with the offender. [ 7 ] An analysis of their content revealed that he used these phones to access the Internet for purposes unrelated to his job between August 7, 2015 and March 16, 2017. [ 8 ] The analysis also identified 47,805 elements constituting conversations of a sexual nature between the offender and other people. [ 9 ] Some of these elements were conversations with persons under the age of 16 years. [ 10 ] Some other elements constituted child pornography; these were exchanges between adults in which they shared their sexual fantasies and stories featuring children under the age of 18 years. [ 11 ] The offender himself wrote some of these, which led to the guilty plea on the charge of making child pornography.

[ 12 ] With regard to sentencing on these counts, the parties made a joint recommendation: a sentence of two years’ imprisonment on each count, to be served concurrently. The offender has been in preventive custody since March 17, 2017, i.e., for 482 days. This number of days, multiplied by 1.5, means that the Court must subtract 723 days from the sentence to be served, leaving a remainder of seven days. [ 13 ] The proposed sentence will not bring the administration of justice into disrepute and is not contrary to the public interest.

Accordingly, the Court approves it. [1] [ 14 ] In addition to this sentence, the prosecution has applied to the Court for Mr. Perreault to be found a long-term offender and thus for a long-term supervision order to be made (753.1 Cr. C. ). In doing so, the prosecution has met the procedural requirements set out in ss. 752.01 and following of the Criminal Code , in particular regarding the filing of an assessment report. [ 15 ] The offender opposes this application.

He argues that, in his case, the objective of protecting the public can be achieved by a three-year probation order under the conditions the Court considers necessary. Finding that he is a long-term offender would further hamper his rehabilitation and reintegration into the community. [ 16 ] It should be noted that it is not contested that the conditions in ss. 753.1(1)(

a) and (

c) are met. As stated, the parties agree that it would be appropriate to impose on the offender a sentence of imprisonment of two years. Furthermore, although the prosecution is of the opinion that there is a substantial risk that the offender will reoffend, it concedes that there is a reasonable possibility of eventually controlling the risk within the comm unity. [ 17 ] The issue in dispute is therefore whether the prosecution has met its burden of establishing beyond a reasonable doubt that there is a substantial risk that the offender will reoffend (753.1(1)(

b) Cr. C. ). [ 18 ] If so, the Court must determine whether a long-term supervision order is an appropriate measure in the circumstances, since this power is discretionary. BACKGROUND [ 19 ] To properly assess the offender’s risk of reoffending, it is useful to review his past conduct. This information is contained in exhibits R-1 to R-7. At the hearing of this application, the offender admitted the content of these documents. [ 20 ] On December 7, 2010, the offender pleaded guilty to one count of possession of child pornography (163.1(4)(

a) Cr. C. ) and one count of distribution of child pornography (163.1(3)(

a) Cr. C. ). [ 21 ] The same day, in another file, the offender pleaded guilty to seven counts of luring a child (172.1(2)(

a) Cr. C. ) and one count of distribution of child pornography (163.1(3)(

a) Cr. C. ). [ 22 ] In these two files, the offender was ordered to serve various concurrent sentences of imprisonment on these charges; the longest was 11 months. These terms of imprisonment were followed by three years of probation. [ 23 ] The facts related to these files reveal that the offender chatted with a police officer, who was posing as a 12-year-old girl on social media, and had sexual conversations with her. [ 24 ] Based on this information, the authorities obtained a search warrant.

An analysis of the items seized uncovered thousands of elements constituting conversations of a sexual nature with seven girls aged 12 and 13 years that took place between October 8, 2007, and January 30, 2008, resulting in the charges of luring a child. [ 25 ] In addition, 34 files containing child pornography were found in this search. Five of these were exchanged and distributed by the offender. [ translation ] “The photos involve young pubescent girls, but also young children.

They show, among other things, a young girl wearing a balaclava who is being penetrated by an adult male, one who is naked while an adult male is caressing her vulva, and another who is being penetrated by an adult male.” [2] [ 26 ] A letter dated July 20, 2010, from the Centre d’étude et de recherche de l’Université de Montréal (CERUM) (R-7) indicated that, after his arrest for these offences and before starting his first period of incarceration, the offender underwent treatment at the CERUM between May 13, 2009, and May 5, 2010. The conclusions of CERUM’s director in this letter were positive.

She assessed the risk of his reoffending as low. [ 27 ] In an assessment report prepared for the Commission québécoise des libérations conditionnelles and signed on May 31, 2011 (R-6), probation officer Andrée Clara Moreau also concluded that the risk of reoffending was low at that time. She based this opinion on, inter alia , the fact that the offender was involved in the treatment described earlier. She also stated, [ translation ] “Daniel Perreault appears eager to comply with the conditions of his order of prohibition, s. 161 (

a) and (

b) Cr. C. ” [ 28 ] She added, [ translation ] “Throughout his treatment, the offender has developed two strategies to control his deviant sexual interest, identified cognitive distortions, targeted his offending cycle and his deficient areas and “seeks to develop better skills to communicate and manage negative emotions. (…) It appears that he already has the knowledge required to adopt and maintain strategies to control his sexual deviancy and for the healthy management of his problems’ (intervention report, 2010), which is positive and demonstrates his active involvement in his desire to overcome his problems.

Furthermore, the subject is aware of situations involving risk for reoffending and appears to understand his offending cycle.” [ 29 ] Despite this favourable prognosis, the offender reoffended while he was still subject to the probation ordered in December 2010. [ 30 ] On January 24, 2014, he pleaded guilty to one count of luring a child (172.1(2)(

a) Cr. C. and two counts of breaching his probation (733.1(1)(

b) Cr. C. He received sentences of 18 months’ and 15 days’ imprisonment respectively, to be served concurrently.

These prison sentences were followed by 3 years’ probation. [ 31 ] On July 25, 2014, the offender pleaded guilty to three counts of luring a child (172.1(2)(

a) Cr. C. , one count of possession of child pornography (163.1(4)(

a) Cr. C. , and one count of distribution of child pornography (161.1(3)(

a) Cr. C. He received sentences of 12 months’ imprisonment to be served concurrently with any other sentence. [ 32 ] The facts related to these files show that, once again the offender chatted with a police officer posing on social media as a teenaged girl, a 13-year-old this time, and had sexual conversations with her. These conversations took place between July 24, 2013, and December 2, 2013.

Thus, he breached the conditions of his probation order prohibiting him from using a computer for purposes unrelated to his job and him from communicating with persons under the age of 16 years. [ 33 ] A search warrant was obtained. When the police arrived at the offender’s residence, he was slow to open the door. A computer belonging to him was later found behind his house, in a snowbank.

A smartphone was also seized. [ 34 ] An analysis of these devices revealed that, between May 28, 2013, and July 5, 2013, the offender had had sexual conversations with three teenaged girls aged 14 to 18 years old. [ 35 ] A total of 169 files constituting child pornography were also found, “containing mostly young girls between 2 and 15 years old, naked or performing sexual acts (masturbation, fellatio, anal or vaginal penetration) with other children or adults.” [3] On July 9, 2013, the offender shared a file containing child pornography with another web user. [ 36 ] Following these prison sentences imposed in 2014, probation officer Priscilia Thiers produced two reports for the Commission québécoise des libérations conditionnelles.

One was dated July 2, 2014 (R-5), and the other August 12, 2014 (R-4). [ 37 ] In the report of July 2, 2014 (R-5), she noted the following about the offender: [ translation ] “He says that he cannot explain the reoffending. We note that his community-based monitoring went well, which is confirmed by the notes of the caseworker handling the file. The community-based monitoring

summary also mentioned progress in his treatment at the CERUM. The psychologist considered a gradual return to using the computer for recreational purposes to provide a framework for his computer use, an option which was not legally feasible. Feeling increasingly comfortable and confident in his rehabilitation, the subject began to pursue this possibility and bought himself a computer. He specified that he was fully aware that he was breaking his probation conditions.

At the time, he was able to rationalize it and he had a feeling of invincibility about his problem, so he did not apply the self-control strategies that he learned in therapy.” [ 38 ] Further on, she added: [ translation ] “Regarding his sexual interests, we note that Ms. Johanne Bergeron, psychologist and criminologist, concluded in 2011 that he is a paraphilic of the hebephylic type, of non-exclusive heterosexual orientation. This assessment also noted narcissistic personality traits, a diagnosis with which the subject agreed.

In this regard, he admitted being centred on his own needs and he has a tendency to want to project a positive image of himself. Moreover, this attitude was noticeable during our assessment. He has good social skills, in addition to the potential to emphasize his assets and strengths. However, he is also able to counterbalance his assets by demonstrating an awareness of his faults, including his tendency to manipulate to put on a good appearance.” [ 39 ] Regarding the risk of reoffending, Ms.

Thiers wrote: [ translation ] “STATIC-99R and STABLE-2007 scores are combined to predict the risk of sexual recidivism for the next year and for the next three and five next years. Given the fact that Mr. Perreault’s STATIC-99R score indicates a high risk and his STABLE-2007 shows a moderate level of needs, the combination of these two assessments puts him in the nominal category of priority for a high level of supervision.” [ 40 ] And finally, she concluded: [ translation ] “Mr. Perreault is 31 years old and serving his second prison term.

The present incarceration is for sexual recidivism while he was under a probation order. Furthermore, he had all the resources at his disposal to avoid repeating his actions, but he did nothing to put them into practice. Thus, the current assessment indicates a substantial risk of reoffending. Nevertheless, he has acknowledged what he has done, the wrongfulness of his actions, and his failure to seek help to avoid reoffending. He makes no excuses and takes full responsibility, which is a positive sign.

With respect to this new reoffence, the offender has just become aware that he actually has a sexual problem, one that is not dependent on external elements, and he wants to work on it. He has also developed an appropriate exit strategy for doing so.” [ 41 ] While maintaining her conclusion that the risk of reoffending was substantial, in her [ translation ] “assessment update” signed on August 12, 2014 (R-4), Ms. Thiers added the following observations: [ translation ] “Just as for the previous charges, he acknowledged his criminal responsibility as well as the existence of a sexual deviancy.

Despite the fact that he said he has a marked sexual preference for teenaged girls and adult women, he admitted having masturbated while looking at pre-pubescent pornographic material. We therefore raised the possibility that his sexual attraction does not stop at young teenaged girls. He appeared receptive to our comments.” [ 42 ] And further on: [ translation ] “The offender has good awareness regarding his criminal behaviour and he is open to change. However, it is high time for him to move from words to action by demonstrating exemplary mobilization in his everyday life through his efforts.

Furthermore, he must be confronted with his difficulties on a daily basis without resorting to these defence mechanisms (manipulation, overly positive self-image).” [ 43 ] In a signed letter dated December 19, 2016, Mr. Francis Fournier, sexologist therapist at the Centre d’intervention en délinquance sexuelle (CIDS), indicated that he first met with the offender from March 20 to May 8, 2014, at the Bordeaux facility to complete the [ translation ] “Awareness of sexual delinquency” program.

Subsequently, the offender [ translation ] “pursued group therapy.” By December 19, 2016, the offender had completed 86 meetings of this type. In her report, Ms. Tiziana Costi (R-1) indicated that Mr. Francis Fournier confirmed to her that he had followed the offender at the CIDS between October 20, 2014, and March 13, 2017. [ 44 ] Therefore, it was while he was in therapy at the CIDS that the offender reoffended in the present file, between August 7, 2015 and March 16, 2017, by committing the offences described earlier.

[ 45 ] Following the guilty pleas in the present file, the prosecution applied to the Court to order an assessment of the offender to determine whether he can be found a dangerous or long-term offender (752.1 Cr. C. ). [ 46 ] On November 8, 2017, psychologist Tiziana Costi of the Institut Philippe-Pinel de Montréal produced an assessment report (R- 1). She testified at the hearing of the present application. [ 47 ] After this reported was filed, the defence retained psychologist Randolph Stephenson to provide a second assessment report.

He filed his report on April 4, 2018. [ 48 ] It should be noted that both experts conducted an actuarial evaluation of the risk of reoffending, using a series of tools recognized in the scientific literature. Although their methodology and their raw data outcomes differed, they reached much the same result: on actuarial scales, whereby the offender shows an above average risk of reoffending. [ 49 ] In addition, both experts concluded that the offender is not a psychopath. [ 50 ] Below are the key facts that the Court accepts from Ms.

Costi’s report. [ 51 ] On the subject of the offender’s perception of the present recidivism, Ms. Costi wrote: [ translation ] “Regarding the last offence, he once again claims that he did not know that what he did was illegal, since these were conversations between adults about their fantasies. According to him, there were no victims. He said that he did not post them either. He knew that it was immoral, that he had had a relapse, but it was sporadic because he was in a difficult period.

At the time of the first offence, his behaviour was reprehensible seven days a week; at the time of the second offence, it was a short but intense period; the third offence was sporadic. He therefore believes that there has been a reduction in the seriousness of his actions. In his view, he must impose limits on himself; he still takes the conditions regarding the Internet a bit lightly. In his mind, it made no sense not to have access to the Internet in 2017. He had convinced himself that he was capable of not doing [ translation ] “stupid things”, but he admitted that this was not true.

He had no choice but to comply with the conditions because he still reoffended. His thought process is not appropriate. He explained that it always began on erotic adult sites, talking about fantasies, pushing the boundaries. He was not able to restrain himself. He finds this search for boundaries bizarre.” [ 52 ] Further, she added: [ translation ] “He knows now that he must obey the laws, even if they do not make sense to him. He has to stop doing what he wants to do and stop his magical thinking. He has a tendency to use vocabulary that comes directly from therapy.

He admitted that he breached the probation conditions.” [ 53 ] On the matter of the subject reoffending while he was receiving therapy: [ translation ] “He admitted that he did not talk about his actions in therapy because he knew that it was illegal. He knew that it was not good and in any case it was just sporadic. When asked why he did not talk about it with his therapist, he claimed that he was afraid of going back to prison and the therapy was in a group setting.” [ 54 ] Ms.

Costi’s diagnostic impression was that the offender has [ translation ] “narcissistic personality traits as well as possible hebephilic paraphilia.” [ 55 ] She concluded: [ translation ] “The assessment indicates a substantial risk of reoffending for the same type of crime in a man who has not shown himself to be trustworthy in terms of the conditions he must respect and who has reoffended while in treatment for these problems. He needs to deepen his thinking and his understanding of his criminal dynamic and especially of his risk of immersing himself in his deviant fantasy.

Although according to the data in the literature, the risk of committing offences with contact is very low, it should not be disregarded in the work to be done. Given the risk that he could represent, the fact that he has re-offended twice, and the fact that he is untrustworthy about complying with his parole conditions and in his understanding of the seriousness of these offences, and the fact that he reoffended while in treatment, we believe that he should be found to be a long-term offender to ensure a better safety net for a certain period of time even though he is motivated to continue his treatment.

This is in order to protect society.” [ 56 ] For his part, the defence expert, Mr. Stephenson, concluded: [ translation ] “We have here a person who is socially isolated, although he had and continues to have interpersonal contact, and whose cognitive and perceptual distortions put him at risk of reoffending and recommitting socially unacceptable behaviour, especially if he is not very well supervised. This is a person who has low self--esteem, inappropriate management and expression of emotions and deficient social skills. Furthermore, he is not a polymorphic offender. He has never used violence.

He does not seek to actually meet people under the age of 18. He is only interested in sexual images and fantasies of teenaged girls that can fuel his own fantasies during his masturbation activities, which occupy a large place in his sexual life. We note that in the latest charges there is no victim. There are only offences aimed at fuelling his life of sexual fantasy, which in large

part involves solitary acts of masturbation. His risk of recidivism is perceived as above average if the dynamic or clinical risk factors for recidivism do not become intervention targets to be modified. In the case of a long-term offender, the underlying offence must, first and foremost, be either serious personal injury or a sexual offence under s. 753.1(2)(

a) of the Code. He committed offences punishable under the Criminal Code of Canada . However, he did not have direct contact and does not seek direct contact with the victims. He has never used violence in the past.

We find that it is premature to find him a long-term offender while all treatment avenues have not yet been explored and he does not represent a danger to the community.” ANALYSIS The law [ 57 ] As indicated previously, the only condition of s. 753.1(1) of the Criminal Code that is at issue in this case is the substantial risk that the offender will reoffend . [ 58 ] Subsection 753.1(2) sets out the conditions that must be met for the Court to be satisfied that there is a substantial risk that the offender will reoffend.

[59] First, the offender must have been convicted of one of the offences listed in paragraph (

a) or have engaged in serious conduct ofa sexual nature in the commission of another offence of which the offender has been convicted. [60] Next, paragraph (

b) provides that the court must also find that the offender: (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that showsa 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 beenconvicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [61] In the present case, the offender was convicted of the offence of making child pornography (163.1(2) Cr. C.), one of theoffences listed in s. 753.1 (2)(

a) of the Criminal Code. [62] The issue therefore is to determine whether one of the conditions described in paragraph (

b) has been met such that the Court issatisfied beyond a reasonable doubt that there is a substantial risk that the offender will reoffend. [63] Case law recognizes that, in the absence of a means of determining an offender’s future behaviour with certainty, it is generallyuseful to consider the offender’s past conduct.[4] This is also what is prescribed by the Criminal Code in its provisions on dangerous andlong-term offenders. [64] However, the analysis of past conduct alone is not sufficient. It must lead to the conclusion that in the future, there is alikelihood that the offender will cause one of the injuries, harms, or evils described in subparagraphs (

i) or (ii) of s. 753.1(2)(b).[5] [65] The applicable standard of proof to draw the conclusions required under s. 753.1(2)(

b) was described by the Quebec Court ofAppeal in R. c. J.C.[6] as follows. [translation] [49] Reading these texts shows that for a court to be satisfied that there is a substantial risk of reoffending, it must be satisfied basedon the offender’s past pattern of repetitive behaviour or past conduct in a sexual matter that he has shown a likelihood of causingpsychological damage to other persons or of causing injury, pain or other evil to other persons in the future through similar offences.

Butwhat then is the applicable burden of proof? [50] In my opinion, it is the one that is applicable to finding an offender to be dangerous, given the similarities in the texts dealingwith these findings (compare s. 753.1(2)(b)(ii) and s. 753(1)(

b) Cr. C.). In R. v. Currie, (SCC), [1997] 2 S.C.R. 260,Lamer C.J. on behalf of the Supreme Court defined the burden of proof required to find an offender dangerous when a court is analyzing,pursuant to s. 753(1)(

b) Cr. C., whether the “offender by his or her conduct in any sexual matter […] has shown a failure to control his orher sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or hersexual impulses”: The Court cannot forget that s. 753(

b) does not require proof beyond a reasonable doubt that the respondent will re-offend. Such astandard would be impossible to meet. Instead, s. 753(

b) requires that the court be satisfied beyond a reasonable doubt that there is a“likelihood” that the respondent will inflict harm […] [Our emphasis.] Probative value of the opinion of psychologist Tiziana Costi [66] The defence attacked the probative value of Ms.

Costi’s testimony and the conclusions of her report by raising four mainarguments: 1- In her report, she referred to a charge of luring a child in the present case which was supposedly “dropped“; 2- She said that there is a substantial risk of reoffending if the offender is released without conditions, whereas he could be subject to aprobation order, which she failed to mention; 3- Her testimony was not nuanced, as she put too much weight on the criminal record and too little on the protection factors (age,personality of the offender, willingness to pursue treatment, family and social support, etc.); 4- The value of the results obtained on the STATIC 99-R scale was affected by the fact that she assumed that the offender would bereleased before the age of 35 years (whereas his release will be after that) and she refused to disclose the complete methodology she usedor to supply the raw data obtained on which these results were based. [67] On the first point, the Court is of the opinion that this reference to the charge of luring a child that was supposedly dropped hasno bearing on the probative value of her conclusions.

Considered as a whole, her report and her testimony demonstrate that this referenceto a specific charge – of which the accused did not plead guilty and which the prosecution withdrew – does not in any way change herconclusions. The impact of this reference is nil. [68] The second point raised by the defence is relevant. However, the Court is of the view that this point does not have much effecton the level of risk that the offender presents. Rather, it is relevant for determining the most appropriate measure to contain this risk.

Probation or an order of long-term supervision of a long-term offender? The Court will discuss this later on. [ 69 ] The third point goes to the heart of this debate. However, the Court finds that Ms. Costi did not lack nuance. She took the trouble to explain why she did not place as much weight on the protection factors. She believes that they were present in the past, and that this did not prevent the offender from reoffending. That is the reason she put more weight on the criminal record and breaches of orders.

It is not as though she simply ignored the protection factors. [ 70 ] Finally, the fourth point raised by the defence has little or no effect on the probative value of Ms. Costi’s conclusions. It is true that the offender will be released after the age of 35. At the time of her assessment, he was 34 years old. She nevertheless to assess the risk of reoffending following release after the age of 35, using the actuarial scale. She admitted that this risk was lower. However, it remained in the range of [ translation ] “above average” risk.

In addition, and the Court does not really understand why, she refused to give a detailed explanation of the methodology used or to provide the raw data that she obtained by using this instrument. She invoked professional secrecy. It must be acknowledged, however, that these two complaints have little effect, because the expert Stephenson reached almost the same results as Ms. Costi by using this actuarial instrument.

Probative value of the opinion of psychologist Randolph Stephenson [ 71 ] The Court must state at the outset that it gives little weight to the probative value of the testimony of the expert Stephenson and the conclusions of his report. [ 72 ] First, he admitted that he was not able to discuss the facts underlying the charges of which the offender was convicted in 2010 and 2014.

Nor did he review the earlier assessment reports (R-4 to R-7). [ 73 ] As discussed, the offender’s past conduct is central to the analysis that the Court must undertake to assess the offender’s risk of reoffending. [ 74 ] How could the expert form a valid opinion without knowing specifically what the offender had done in the past, without knowing anything about his past conduct in any sexual matters other than the information contained in the computerized court ledger? [ 75 ] In addition, the earlier reports (R-4 to R-7) represent an important source of information for understanding the offender’s progression, his reasoning regarding the charges, his attitude with respect to the court orders, the risk that he posed in the past, and so on.

Mr. Stephenson forwent this information. [ 76 ] These reports (R-4 to R-7) also contain information about the treatment received by the offender in the past. Mr. Stephenson knew that the offender had had therapy. He admitted, however, that he did not speak with any of the offender’s therapists. He did not know what type of treatment the offender received. He did not know the specific issues addressed in the therapy. [ 77 ] He based his conclusions on the fact that the risk of reoffending is increased by a series of dynamic factors that would be likely to be modified in therapy.

Yet he did not know what relevant therapeutic interventions were tried in the past or whether they were effective. [ 78 ] How could he conclude [ translation ] “that it is premature to find the offender to be a long-term offender when all treatment avenues have not yet been explored”, when he knew almost nothing about the treatments received by the offender? [ 79 ] Nowhere in his report did he indicate having considered the fact that the offender was unable to comply with the probation orders and the prohibitions provided in s. 161 of the Criminal Code , which, in the Court’s opinion, are highly relevant to assessing the risk of reoffending and to determining whether a long-term supervision order, as opposed to a probation order, is an appropriate measure in the circumstances to ensure the protection of the public. [ 80 ] The main problem with Mr.

Stephenson’s opinion, however, is that his conclusions are based on a poor understanding of the provisions on long-term offenders and their objectives. [ 81 ] Although like Ms. Costi, he concluded on the basis of actuarial assessments that the offender poses an above-average risk of reoffending, Mr. Stephenson was of the view that he should not be found to be a long-term offender. According to the conclusions in his report and in his testimony at the hearing, Mr.

Stephenson’s opinion was essentially based on the fact that the offender has never used violence, that he does not seek to meet people under the age of 18, that he has never had direct contact with the victims, and that there are no victims involved in the recent charges. [ 82 ] First, as indicated previously, Mr. Stephenson apparently formed his opinion essentially only from the facts related to the present charges.

But the Criminal Code is clear: s. 753.1(2) ( b )(ii) states that it is the offender's past conduct in any sexual matter, including that involved in the commission of the offence for which the offender has been convicted , that must be analyzed to determine the risk of reoffending. It is therefore necessary to analyze the offender's past conduct as a whole. In addition, Mr.

Stephenson completely left out of his analysis the fact that in his sexual crime recidivism, the offender showed himself to be unable to comply with court orders intended to protect the public. [ 83 ] Then, he wrote in his conclusions: [ translation ] “In the case of a long-term offender, the underlying offence must, first and foremost, be either serious personal injury or a sexual offence under s. 753.1(2)(

a) of the Code.” He stated in cross-examination that his understanding is that s. 753.1 (long-term offender) does not apply to child pornography offences. [ 84 ] However, the precondition that the underlying offence must constitute "serious personal injury" comes from the provisions on dangerous offenders (s. 753 Cr. C. ). It is not a requirement under the long-term offender provisions (s. 753.1 Cr. C. ). [ 85 ] Moreover, contrary to what he claims, child pornography offences are specifically referenced in s. 753.1(2)( a ), and thus they apply to the long-term offender regime.

[ 86 ] The legislator has therefore specifically intended that an offender who is convicted for a child pornography offence can be classified as a long-term offender, on the condition of course that one of the criteria set out in s. 753.1(2)(

b) concerning the future risk he poses is met. [ 87 ] These errors made by the expert are not trivial. They contaminate his reasoning.

This contamination is clearly expressed when he emphasized the absence of violence and victims in drawing his conclusions. [ 88 ] The legislator’s inclusion of child pornography and child luring offences on the list of offences giving rise to an order of long- term supervision of a long-term offender shows clearly that the use of violence and the existence of a direct sexual contact victim are not requirements. [ 89 ] Furthermore, the absence of violence in the commission of an offence does not mean that the victim has not suffered psychological damage.

It is also recognized that children and adolescents are led into having illegal sexual contact with adults through manipulation. Rarely through violence. Conclusions on expert opinions [ 90 ] Generally, the assessments of the two experts do not significantly differ. They arrive at approximately the same result regarding the risk of reoffending. [ 91 ] Rather, it is their conclusions on the necessity of finding Mr. Perreault to be a long-term offender and the requirements for doing so which differ. [ 92 ] For Ms.

Costi, the focus should be on the accused’s conduct from his first offences committed in 2007 until now, his criminal record, and his breaches of court orders. [ 93 ] For Mr. Stephenson, the focus should instead be on the offender’s protection factors and the fact that the risk of reoffending can be reduced by therapy. [ 94 ] As explained, the Court attributes greater probative value to Ms. Costi’s opinion than to Mr. Stephenson’s. [ 95 ] The Court must emphasize, however, that ultimately the matter of determining whether Mr. Perreault should be found to be a long-term offender belongs to the Court.

The evidence provided by the experts is certainly relevant and useful, but their opinion on the matter cannot be substituted for the judge’s. Conclusions on substantial risk of reoffending [ 96 ] It is true that the charges to which the accused has pleaded guilty in the present file do not include luring a child. In addition, the child pornography that he made consisted of written text, not images of real children. [ 97 ] However, the following observations are warranted. [ 98 ] The objective here is not to punish the offender for the crimes of which he has pleaded guilty.

The sentence of two years’ imprisonment that he will receive is appropriate for that. [ 99 ] The objective is to analyze his past conduct, including that involved in the commission of the offences for which he is convicted in the present file, in order to assess the risk of reoffending. [ 100 ] This past conduct must be analyzed as a whole. [ 101 ] His past conduct shows that, since at least 2007, he has had sexual fantasies involving teenaged girls under 16 years old.

These fantasies led him to make repeated contact with teenaged girls, to engage in sexual conversations with them, and to make, possess, and distribute child pornography.

He has in the past certainly caused psychological harm to the victims of luring and contributed to perpetuating the victimization of the children in the child pornography that he possessed and distributed. [ 102 ] His conduct in the present file shows that the offender is unable to control his sexual attraction to teenaged girls. [ 103 ] The previous prison sentences have not had a deterrent effect. [ 104 ] He is unable to comply with court orders made to protect teenaged girls. [ 105 ] His sustained involvement in therapy has not prevented him from having fantasies involving teenaged girls. [ 106 ] His protection factors identified by Mr.

Stephenson were there in the past. They did not prevent the recidivism. [ 107 ] On each of his previous convictions and at the subsequent assessments, the offender expressed remorse. He admitted his wrongs. He showed an openness to changing his behaviour and to participating in therapy to achieve this.

This positive attitude expressed in the past did not prevent him from reoffending. [ 108 ] In the present file, he used the Internet for personal purposes and contacted teenaged girls while he was forbidden to do so. [ 109 ] Making child pornography in written form and sharing it with adults is not without danger or consequences. This activity maintains and fuels his deviant fantasies. It creates the impression of making the unacceptable acceptable. It creates a social network of sex offenders who help and encourage each other.

[ 110 ] The fact that in the present file the offender made such child pornography and was still in contact with teenaged girls demonstrates undeniably that he is unable to contain his fantasies involving teenaged girls. He not only has these fantasies in his head, he is unable to resist the urge to act on them. [ 111 ] It is true that Ms.

Costi assessed that [ translation ] “the risk for contact-related behaviour is generally low for this type of sex offender, but it should not be completely ignored.” [ 112 ] This does not mean, however, that the offender’s past conduct does not give reason to foresee that he will cause “injury, pain or other evil to other persons in the future.” [ 113 ] Even though they do not necessarily involve direct sexual contact, child luring and other child pornography offences are not victimless crimes. [ 114 ] Adolescents who are victims of luring can find , among other things, their self-esteem and trust in others, as well as their personal and sexual fulfillment, greatly affected.

In short, they can suffer psychological harm. [ 115 ] Children and adolescents who appear in child pornography images are repeated victims. They are victims when the child pornography is created, and they are victims again when these images that are used to fuel some people’s deviant sexual fantasies are distributed. [ 116 ] Sustaining the deviant fantasies of other sex offenders through the distribution of child pornography, even if only in written form, puts children and adolescents at risk, exposing them to injury, pain or other evil . [ 117 ] In light of these facts and of Ms.

Costi’s expert opinion, the Court is satisfied beyond a reasonable doubt that the offender’s past conduct in sexual matters, 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. [ 118 ] The Court is therefore satisfied beyond a reasonable doubt that there is a substantial risk that the offender will reoffend.

Discretionary power to order such measure [ 119 ] Although the Court is satisfied beyond a reasonable doubt that the conditions set forth in s. 753.1 of the Criminal Code for finding Mr. Perreault to be a long-term offender are met, doing so remains an exercise of discretion.

The Court could refuse to impose this measure, even if the conditions are met. [ 120 ] The objectives of long-term supervision orders are: (1) protecting the public from the risk of reoffending and (2) rehabilitating the offender and reintegrating him or her into the community. [7] [ 121 ] In this case, the offender has already been twice subject to probation orders aimed at protecting the public and ensuring his rehabilitation and reintegration into the community. Both times, he breached the orders and reoffended. In fact, since December 2010, he has almost always been either incarcerated or on probation.

These measures have not been successful in adequately protecting the public. [ 122 ] It is therefore time to step up to an increased level of supervision, in order to protect the public and control the risk that he presents when he is in the community. [ 123 ] This measure may, possibly, make rehabilitation and reintegration into the community more difficult. It is not, however, an insurmountable obstacle. The offender can certainly continue his therapy and finally have better control over his impulses.

This inability to control himself is at the moment the main obstacle to his rehabilitation and reintegration into the community. [ 124 ] The Court is therefore satisfied that the offender should be subject to long-term supervision. Duration of supervision order [ 125 ] The prosecution seeks a long-term supervision order of 10 years, which is the maximum period provided in s. 753.1(3) of the Criminal Code .

The defence made no comments in this regard. [ 126 ] The Court does not believe that this is a case where the maximum supervision period should be imposed. [ 127 ] The offender demonstrates openness and wishes to continue his therapy. He seems sincere in his desire to overcome his sexual problem, even although he appears to be unable to do so at this time. A lot of work remains to be done. This work did not achieve the results expected during the previous probation terms, but there is reason for hope in his case. [ 128 ] The offender has a realistic exit plan. A job awaits him.

He has a social and family network ready to support him. [ 129 ] For these reasons, the Court is of the opinion that a supervision period of seven years is sufficient in his case. [ 130 ] The fact remains that if the offender “no longer presents a substantial risk of reoffending and thereby being a danger to the community” before the end of the supervision period, he can apply to the Superior Court for an order reducing or terminating the supervision period (s. 753.2(3) Cr. C. ). Other orders [ 131 ] Because the offender was convicted of the offence of making child pornography ( s. 163.1(2) Cr.

C. ), an order must be made requiring him to comply with the Sex Offender Information Registration Act (s. 490.012(1) Cr. C. ), which is to apply throughout his lifetime because the offender was subject to such an order made previously (s. 490.013(4) Cr. C. ).

[ 132 ] Because making child pornography is a “primary designated offence”, an order must be issued authorizing the taking of samples of bodily substances for the purpose of forensic DNA analysis (s. 487.051(1) Cr. C. ). [ 133 ] Making child pornography ( s. 163.1(2) Cr. C. ) is an offence included in s. 161(1.1) of the Criminal Code .

However, because the child pornography made by the offender is in written form, the Court cannot find that the offence was committed “i n respect of a person who is under the age of 16 year s.” Consequently, the Court cannot make the order of prohibition provided in s. 161(1) of the Criminal Code . [ 134 ] Because the offence was not one in the commission of which violence was used, threatened or attempted against another person, the Court cannot make an order prohibiting the possession of weapons provided in s. 109(1) of the Criminal Code .

FOR THESE REASONS, THE COURT: ORDERS the offender to sentences of seven days’ imprisonment on counts 2, 8 and 11, to be served concurrently (these are sentences of two years’ imprisonment minus the credit for time spent in preventive detention (482 days multiplied by 1.5 equals 723 days); FINDS the offender to be a long-term offender; ORDERS that the offender be subject to a long-term supervision order for a period of seven years; ORDERS the offender to comply, throughout his lifetime, with the Sex Offender Information Registration Act ; ORDERS the authorization of the taking of the number of samples of bodily substances from the offender that is reasonably required for the purpose of forensic DNA analysis. __________________________________ ALEXANDRE DALMAU, J.C.Q.

Mtre Amélie Rivard Director Criminal and Penal Prosecutions Crown Prosecutor Mtre Marc-Antoine Carette Carette Desjardins, s.n.a. Counsel for the Offender Dates of hearing: June 28, 2018, May 22, 2018