R. v. Ewing, 2022 ONCJ 346

CITATION: R. v. Ewing , 2022 ONCJ 346 DATE: 2022 07 28 Information 19-95005826 ONTARIO COURT OF JUSTICE (TORONTO REGION) HER MAJESTY THE QUEEN Applicant - and – JASON EWING Respondent Ruling on Dangerous Offender Application Evidence : March 11, 14, 15, 16, 18, 28, 31, 2022; Submissions : June 8, 2022; Decision : July 28, 2022 (234 paras.) Counsel for the Applicant: Jennifer Stanton Counsel for the Respondent: John Fennel WARNING: This Ruling involves reference to matters governed by a court ordered publication ban pursuant to s.486.5 of the Criminal Code . Libman, J. : - INDEX Overview and History of Proceedings P aras 1-5 Agreed Statement of Fact and

Summary of the Offences and Offender Paras 6-18 Evidence on Police Investigation at Dangerous Offender Application: Constable Brendan Alexa Paras 19-23 Victim Impact Statement Evidence Paras 24-27 Evidence on Victim Impact Statement Evidence at Dangerous Offender Application: Dr. Randall Green Paras 28-34 Community Impact Statements Evidence Paras 35-42 Evidence on Community Impact Statements Evidence at Dangerous Offender Application: Monique St.

Germane Paras 43-47 Community Supervision Evidence: Overview Para 48 Elana Lamesse Paras 49-55 Brad Tamscu Paras 56-60 Kim Gillespie Paras 61-74 Expert Evidence: Overview Para 75 Dr. Jonathan Gray Paras 76-119 Dr. Julian Gojer Paras 120-155 Position of the Parties: Overview Para 156 Position of the Crown Paras 157-168

Position of the Defence Paras 169-180 Analysis: Overview of Designation Stage Para 181-182 The predicate offence is a “serious personal injury offence” under s.752 Para. 183 Whether there is a pattern of repetitive behaviour by the offender, of which the offences for which he has been convicted form a part Paras 184-191 Whether this pattern of behaviour shows a failure by the offender to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour Paras 192-208 Conclusion: Designation Stage Para. 209 Analysis: Overview of Penalty Stage Paras 210-213 Whether there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the commission by the offender of a serious personal injury offence Paras 214-230 Conclusion: Penalty Stage Para 231 Result: Sentence Imposed on Mr.

Ewing Para 232 Ancillary Orders Para 233 Final Comments Para 234 Overview and History of Proceedings [ 1 ] On 5 March 2021, Mr. Ewing entered guilty pleas before me to possessing and accessing child pornography, contrary to ss.163.1(4) and (4.1) of the Criminal Code . [ 2 ] Following the guilty pleas, the Crown indicated its intention to consider applying for the defendant to be declared a dangerous offender, pursuant to s.753.

I subsequently ruled that the subject offences met the definition of serious personal injury offences as set out under s.752 of the Criminal Code and ordered an Assessment under s.752.1(1) : see R v Ewing , 2021 ONCJ 273 . [ 3 ] In March, 2022 over the course of seven days, I heard the testimony of a number of witnesses, including Corrections Canada and community supervision officials, two forensic psychiatrists, and victim impact and community impact evidence, which I will summarize below.

Counsel submitted voluminous material in support of their positions, including written argument, which supplemented their oral submissions, made on June 8, 2022. Subsequently, I reserved judgment until today’s date, July 28, 2022. [ 4 ] The decision I am tasked with rendering is not a light one. The child pornography offences to which Mr. Ewing pleaded guilty are horrendous in their impact on victims, even though they have never met. I have heard evidence, in fact, of the devastating impact on one of them, “Cara”, who is in the defendant’s collection, as well as a clinical psychologist who has spoken to her. Mr.

Ewing is a repeat offender and has committed a hands-on sexual offence with a child as well. At the same time, his lifetime of freedom hangs in the balance, and he has accepted responsibility for his actions by pleading guilty and acknowledging the wrongfulness of his conduct. He has indicated that he will go for treatment and leave the community. He has also apologized and expressed genuine contrition in his concluding statement in court. [ 5 ] My responsibility in delivering this decision has been greatly assisted by the remarkable counsel who have appeared before me throughout. Ms.

Stanton, for the Crown, has outlined her position in writing on each and every occasion, in meticulous detail, and included a power point presentation in her concluding argument. Mr. Fennel, for the defendant, has expressed himself powerfully and articulately, and shown admirable respect for Mr. Ewing and the court process. On each and every occasion, he has requested Mr.

Ewing be brought in person to court during the pandemic so that he could speak to him more readily; he would often move his chair so that he could sit directly in front of his client and hold up for him his computer in one hand displaying the written materials or evidence before the court. The administration of justice is greatly assisted by counsel of the caliber of Ms. Stanton and Mr. Fennel, and I am very grateful to them. The reasons that follow are intended to be responsive to the arguments they have so thoughtfully and skillfully put before me. Agreed Statement of Fact and

Summary of the Offences and Offender [ 6 ] In my earlier decision in which I found the subject offences constituted serious personal injury offences, the circumstances of the offence and the offender were set out and summarized. I will repeat the salient details below. [ 7 ] The offences of which the defendant pled guilty consist of a collection of 1,286 images and 42 videos which meet the Criminal Code definition of child pornography. Most of the images uploaded by the defendant consist of female children, from infancy to approximately 12 years of age. Some of the children are partially clothed; others are not.

There are images where the dominant characteristic depicted is the child’s breast, vagina and/or anal region. In other images, children are engaged in sexually explicit activity with one another or an adult. The collection also contains animated drawings depicting children engaged in sexually explicit activity, including with babies and toddlers. [ 8 ] Several images depict children that are sexualized or exploitative in nature. There are pictures of children with their tongues sticking out and mouths open, and the words “fuck me” written on their bodies.

Other pictures are of children appearing to be asleep wearing

clothing pulled away so as to expose their genitals; some children are wearing heavy makeup on their faces while dressed in provocative style lingerie. In others, female children are bound at the wrists and ankles. [ 9 ] In the accused’s video collection, there are female children depicted having sexually explicit activity with adult males, including fellatio, vaginal and anal penetration. Other videos are self-exploitative and depict female children exposing their sexual organs and engaging in masturbation. There are also animated depictions of men performing sexual acts with babies.

The female children in this video collection range in age from less than one year old to approximately 11-years of age. [ 10 ] There were also a number of devices located within the accused’s image collection. These include female children’s underwear, infant figurines and baby doll parts, and voyeuristic style up-skirt shots, a number of which appear to be from underneath an elementary school child’s desk. Some of the female children have red hair.

The accused admitted in his statement to the police, in fact, that red-head girls are his favoured sexual preference. [ 11 ] The accused’s collection also contains images of children who have been identified by law enforcement agencies throughout the world.

These include online child abuse files depicting victims who have been identified in Germany, Switzerland, Lithuania and the United States. [ 12 ] As for the accused’s internet/online activities on his Samsung Galaxy S7, these include chatting with unknown individuals about child pornography and sexually abusing siblings, animal characters with human characteristics (furries) and cartoon-like images which depict pre-pubescent children or infants engaged in explicit sexual activity (anime). He also searched online for terms such as “mannequin child for sale” and “baby figurine nude”.

In addition, he accessed URLs for sites such as xvideos, Pornhub and incest tube. [ 13 ] On his RCA Tablet, the accused searched online for terms such as incest chat, and accessed URLs for sites including yourporn.com, mytaboo.net, familytaboo.net, incestxxx.net and incest.net. Other online searches were for terms including, “How to get my daughter to expose herself”, “Daddy my pussy is yours”, “Daughter daddy private time”, “Daddy’s girl” and “This Father and Daddy pair”. Other search terms included, incest, redheads, loli blonde girl, wolf girl, teenfidelity and cute teen. [ 14 ] Mr.

Ewing turned 48 years old this past June. He has a criminal record. It includes a conviction for possession of child pornography and make available child pornography, imposed on February 15, 2007. He was sentenced to a total of 15 months’ imprisonment, after being given credit for 4 months and 2 weeks of pre-trial custody, and placed on three years’ probation.

An order under s.161 of the Criminal Code was imposed, prohibiting the defendant from attending public places where persons under the age of 16-years old was also imposed for a period of 10 years. [ 15 ] This 2007 conviction involved a search of devices located at the defendant’s residence after he posted an image of child pornography on the Internet. The search revealed a total of 6,951 images of child pornography stored on his devices as well as 73 child pornography stories.

There were also 292 videos of child pornography; the actual viewing time for all of the child pornography videos was approximately 15 hours. A quantity of young girl’s underwear was located in his closet, which the accused admitted he used as a prop while he masturbated. The child pornography content included the depiction of very young children including babies, under the age of 2-years old, being forced into explicit sexual activity, including vaginal and anal intercourse.

In one video, a pre-pubescent female is shown being shackled and burned by hot wax as two masked assailants sexually assault her. [ 16 ] On October 18, 2012 the accused was found guilty of sexual assault, sexual interference and failing to comply with a recognizance. He was sentenced to 162 days’ imprisonment for sexual assault (after credit for 248 days pre-trial custody) and three years probation; 14 months’ imprisonment consecutive for sexual interference and two months’ consecutive for fail to comply.

A s.161 order for 20 years was imposed as well. [ 17 ] The fail to comply charge was in relation to the accused being on bail for sexual assault and sexual interference. He was subject to a house arrest condition. However, he breached the order by attending a library where he used a computer while not in the presence of his sureties. The victim of the sexual assault and sexual interference offences was the defendant’s female cousin who was 5-6 years old.

On two occasions while in the basement of the defendant’s grandmother’s home, he pulled down her pants and touched and licked her vagina. [ 18 ] In imposing sentence for these offences, the sentencing judge, Justice Nakatsuru (as he then was), commented that while the defendant had previously only been charged with child pornography charges and there was no indication at that time he had acted out on his inappropriate sexual fantasies, and indeed denied having such fantasies, he now admitted and had been tested “to having such abhorrent sexual fantasies.” (Transcript of Sentencing Proceedings, October 18, 2012, p.19, l25-28).

Evidence on Police Investigation at Dangerous Offender Application: Constable Brendan Alexa [ 19 ] The first witness to give evidence was Officer Brendan Alexa. He attended the accused’s one bedroom apartment on Goodwood Park Court in East York when a search warrant was executed there on 21 November 2019. Exhibit 1 is a file folder of photographs taken at the time. These pictures show numerous objects and figurines scattered throughout his residence.

A number of stuffed “My Little Ponies” are on his bed along with a sexualized image of anime, including an anime bed pillow, being a Japanese cartoon figure with its legs spread. A box of female figurines was at the foot of his bed. Some of these were in a state of bondage and undressed; many of the figurines were in sexually suggestive poses. [ 20 ] A resume in the accused’s name was also located during the search. It gave as his last employment Mastermind Toys in 2018-2019. Mr. Ewing had also volunteered at a number of events that were listed on the resume.

These included, as described in Exhibit 10, Agreed Statement of Facts: PonyCon , “a fan created and run convention celebrating all incarnations of My Little Pony”; Fringe Festival, Toronto, “a grassroots, charitable organization .. and various year-round programs that benefit youth, emerging artists, BIPOC artists, artists with disabilities, and the performing arts community at large… commonly attended by persons of all ages, including children”; Inside Out Festival, Toronto , “an annual Canadian film festival, which presents programs of LGBT-related film…commonly attended to by persons of all ages, including children”; Anime North Festival, Festival , “… celebrates anime, manga, music, games and all other forms of Japanese Culture”.

[ 21 ] Other items found in the accused’s residence included pills for men to prevent premature ejaculation, comic books, condoms and lubrication. There were also articles of female childrens’ and toddlers clothing and a masturbation tool, a “pocket pussy”, located by the baby clothes, that resembled the vagina of a child not an adult woman, as there was no signs of sexual maturation on it such as pubic hair. Mr.

Ewing also had a Toronto library card. [ 22 ] Constable Alexa described in his evidence the contents of some of the digital devices seized by the police and found to contain videos and chats meeting the definition of child pornography. These included depictions of a child being anally penetrated and bondage of a child in distress. Another image on video was of a child with a penis in its mouth and being ejaculated on her face. In the pornography chat conversations, Mr. Ewing shared an image of a “My Little Pony” being penetrated by an anime character, which he described as “sexy”.

He and the other user proceeded to share links and images of anime of children who were not wearing underwear. They referred to the anime characters as “sluts”. This chat conversation took place on November 19, 2019, that is, two days before the execution of the search warrant. [ 23 ] In cross-examination, the officer acknowledged that a number of the places where the defendant volunteered or attended such as Comicon, an annual comic book and pop culture convention held in Toronto, was attended by people of all ages. It was also put to the officer that some of the items found in Mr.

Ewing’s apartment, such as pills for maintaining an erection and the “pocket pussy” masturbation device were publicly available and accessible, in the case of the later, from Amazon. Exhibits 5 and 6 in the proceedings are pictures of these products. [1] Victim Impact Statement Evidence [ 24 ] In my earlier Ruling, I summarized the Victim Impact Statement Evidence that was put before me following Mr. Ewing’s guilty plea. I noted the accused’s collection in the subject offences contains images of children who have been identified by law enforcement agencies throughout the world.

One such victim is “Cara”, which is a pseudonym. That is, Cara’s image is one of the ones contained in the defendant’s collection. She is now 31 years old. Her sexual abuse was captured on video and disseminated by her biological father on the internet. These images continue to be widely distributed internationally, according to the record before me. [ 25 ] A victim impact statement from Cara has been put before the court and prepared for this case. She indicates in it that although her abuse occurred approximately 20 years ago, the circulation of her images is always on her mind. She experiences flashbacks.

Her online exploitation causes her to fear for her safety and the safety of others. It has affected her ability to feel connected with her husband. It has also affected her relationship with her own children. She does not allow them to go on social media. Neither does she let her children go anywhere else unless she knows the parents and trusts them. She does not let them play outside. She does not allow them to go to neighbourhood friends, unless she is present. [ 26 ] In her victim impact statement, Cara states that she has “really bad anxiety”, does not like people, and does not like going into places.

She suffers from panic attacks and anxiety attacks. She has been diagnosed with major depressive disorder. [ 27 ] Cara goes on to say that she identifies that what continues to happen to her with her online exploitation has caused “my whole life to be a mess”. She has feelings of worthlessness and not being good enough. She wishes to be alone. She also identifies that her anxiety and depression have set her back in terms of school and employment. She fears that someone could recognize her from her online exploitation.

Cara has also expressed that she wishes for people to know that just because her abuse happened to her as a child, that does not mean it no longer affects her as an adult. She wants people to know she is a person. Evidence on Victim Impact Statement Evidence at Dangerous Offender Application: Dr. Randall Green [ 28 ] Dr. Randall Green, a clinical psychologist, gave evidence from Salem Oregon in these proceedings. His curriculum vitae is Exhibit 13.

Tendered into evidence during his testimony is a forensic psychological examination, dated 10 February 2022, on “Cara”, the party mentioned in the victim impact statement evidence above, and whose images were found in Mr. Ewing’s collection. Dr. Green’s report is Exhibit 14. [ 29 ] Dr. Green has spent the past 10 years as a consultant to law enforcement agency wellness programs. He has performed more than 20 evaluations of survivors of sexual abuse whose images have been distributed on the internet. His report on Cara details how she is affected by the knowledge of the distribution of her images.

He spoke to her for six and one-half hours in November, 2021, as well as her mother, and also reviewed the records tendered into evidence in the proceedings against her perpetrator, her birthfather. Cara was in her early 30’s at the time they spoke. She disclosed her abuse when she was 10. [ 30 ] A list of ten diagnoses made by Dr. Green on Cara is set out at the bottom of page 16 of his report.

These include: posttraumatic stress disorder, persistent depressive disorder, generalized anxiety disorder, social anxiety disorder, personal history of sexual abuse in childhood and personal history, and personal history of child psychological abuse. [ 31 ] The witness explained that her posttraumatic stress disorder related to the original abuse she suffered, however it was exacerbated by the downloading of her images. Generalized anxiety disorder also related to the images, as she was fearful of being recognized in public.

She suffered as well from trust problems that were generalized to from the original perpetrator to a general distrustful view of men. [ 32 ] Dr. Green went on to explain that he hears repeatedly from the group of survivors like Cara that the continued internet criminal activity adds a distinct type of injury that is separate from the original abuse-related trauma. The ongoing child sexual abuse images, in perpetuity, means there is no possibility to have closure for the survivor.

A permanent psychological weight thus remains for such victims as the “nightmare” from the past is simply replaced by further internet activity. While Cara does not know Mr. Ewing, he added, his viewing her images contributes to the ongoingness that she experiences and that will never go away. The anonymity of persons like the defendant is part of the fear survivors experience. [ 33 ] In cross-examination, Dr. Green acknowledged that he did not know if Cara was aware of Mr. Ewing. Her attorney would be notified when court cases involving her images occurred. Dr.

Green further agreed that in his diagnoses of Cara’s condition, his observations of her persistent inability to experience positive emotions, hypervigilance and alertness regarding the safety of her own

children, concentration difficulties and sleep disturbances, explained the context of her feelings but were not part of his actual diagnosis. [ 34 ] Mr. Fennel asked the witness how he was able to distinguish between the symptoms Cara experienced from the original physical abuse from her father and those from the ongoing viewing of the images. He replied that he attempted to differentiate or delineate what was caused by the original index offences and that of the ongoing viewing of the images which perpetuated the injuries through his intensive interview of Cara.

He agreed, however, there was no formula or methodology in existence to do so. Cara had to this point avoided therapy, which might also have helped distinguish between the impact of the original abuse and that of the ongoing child sexual abuse images. Community Impact Statements Evidence [ 35 ] In addition to the Victim Impact Statement, the Crown filed Community Impact Statements in these proceedings. One is from the Canadian Centre for Child Protection Inc. It is a registered charity with a mandate of preventing the sexual exploitation and abuse of children.

It has direct contact with survivors of child sexual abuse material and their families. This Community Impact Statement is Exhibit 11. [ 36 ] It is noted in this Community Impact Statement that child sexual abuse material is permanent and persistent. Whereas victims have expressed that their hands-on sexual abuse was horrific, it did come to an end. Online exploitation crimes, on the other hand, exist in perpetuity. Moreover, victims continue to be re-victimized every single time someone looks at the images and videos of their online sexual abuse.

Some victims reported ongoing sensitivity to picture taking; others were sickened by the knowledge that their content was being used for a sexual purpose online. [ 37 ] A number of survivors of online child sexual abuse reported suffering from anxiety, depression, suicidal ideation, self-harm, substance abuse, post-traumatic stress disorder, and dissociative disorders. Some identified living in fear that they would be recognized from their images of their online abuse.

A number also reported that their fear about being recognized from their online sexual abuse material caused hyper-vigilance and anxiety, feelings of being suspicious of people, limiting social interactions or remaining in their homes, and feeling shame and worrying about being stalked or harmed. [ 38 ] A survey of such survivors revealed that the majority were either currently in therapy or had received therapy in the past. A majority reported that they anticipated needing ongoing or future therapy.

The need for such therapy is to address the continuing victimization that results from knowing the images exist and are being viewed by subsequent offenders. Hence, for victims of these particular offences, “their past is their present.” [ 39 ] There is another Community Impact Statement from the Phoenix 11. It is Exhibit 12. This group consists of 11 survivors of child sexual abuse that has been recorded and shared on the internet.

This community impact statement has likewise been created in relation to the defendant’s collection. [ 40 ] According to this statement, it is indicated that possession of child pornography is not a victimless crime. The children in the images are actual people who struggle to survive their victimization daily. It is indicated that they will never really be free because although their sexual assaults have ended, they were also recorded. They believe their imagery can be accessed by anyone, anywhere, anytime; they live their lives in “a perpetual state of vigilance and fear”.

In addition, they worry about being recognized from their online images or that someone they know will see them. This causes them, in turn, to be impaired socially and experience ongoing difficulty forming relationships. Some members of the group have even changed their appearances.

Those of the group who are parents also worry constantly about the safety of their children: they do not feel their children are safe unless “they are with us, and only us”. [ 41 ] The members of the group have stated that they feel powerless as it relates to their child sexual abuse material as it was made without their consent and continues to be seen without their consent. There is a feeling of being re-victimized every time the imagery of one of them is accessed or stored by another person. They feel shattered that their images may be used to perpetuate violence against other children.

The mere existence of the imagery invokes feelings of intense fear in each of them.

They have experienced a variety of stress and mental health related conditions as a result of their online abuse, including complex PTSD, insomnia nightmares, seizures, panic attacks and migraines. [ 42 ] It is expressed in this Community Impact Statement that is “infuriating, as victims of this type of victimization” to be repeatedly made aware that there are people who will find and keep photos and videos of children they do not know and have never met, “in the most horrible of circumstances”, and not understand that that they have no right to see or have such material.

If there were not people wanting to look at and possess this kind of imagery, it is stated, “our abuse may not have ever been recorded, and it certainly would not be out there now for people to see.” Evidence on Community Impact Statements Evidence at Dangerous Offender Application: Monique St. Germane [ 43 ] Monique St. Germane is General Counsel for the Canadian Centre for Child Protection. She submitted the Community Impact Statements entered into evidence, and over the objection of Mr. Fennel, was permitted to testify in the proceedings.

The defence had argued that her evidence was too remote, as none of the images in Mr. Ewing’s collection came from either group of survivors she represented, and that her organization was essentially a lobby group against child pornography, and would not assist the Court in the determination as to whether his client should be declared a dangerous offender or not. However, I accepted the Crown’s submission that Community Impact Statements are expressly permitted by the Criminal Code , and such evidence may be properly adduced in the proceedings. [ 44 ] Ms. St.

Germane gave her evidence from her home office in Winnipeg. She has been General Counsel since 2010; the Canadian Centre for Child Protection is a registered charity and has been incorporated since 2005. It has operated a tip line, cybertip.ca, for the online exploitation of children since 2002, which is the top online reporting tool to protect children in Canada. [ 45 ] According to the witness, the Community Impact Statement from the Canadian Centre for Child Protection includes a survivors’ survey that was launched in 2016.

The key findings include that recording the sexual abuse of a child has “an enormously negative

impact” on the individual which is significant and lifelong. The images of the victim may still be possessed by the abuser and be publicly available for others to access. Nearly 70 percent of the respondents indicated that they worry constantly about being recognized by someone who has seen images of their abuse. Ms. St. Germane agreed that she was unaware of any of the survivors’ images being part of Mr. Ewing’s collection. [ 46 ] With respect to the Phoenix 11 Community Impact Statement, she explained that she met each member of the group in 2018.

It was during that meeting that they put together and adopted the statement that was tendered before the court. A common concern that was expressed to the witness was that many of the survivors had either changed their names or used a pseudonym online or in real life; others would try not to spend much time in public places. None of them wanted the images to have ever existed at all. The fact that it did meant “we can’t escape what happened to us.” [ 47 ] The witness agreed in her cross-examination that she was not aware of any of the survivors in her survey having images that were found in Mr.

Ewing’s collection. Neither did she recognize any of the names from the materials that were involved in these proceedings. Likewise, the Phoenix 11 were not parties whose images were viewed by the defendant. Community Supervision Evidence: Overview [ 48 ] Three witnesses were called to give evidence at the proceedings as to the type of supervision and management available to Mr. Ewing if he were to be released into the community. They are: Elana Lamesse and Brad Tamscu, from the Ministry of the Solicitor General of Ontario, and Kim Gillespie from Correctional Service Canada.

Exhibits filed during their testimony include: Overview of Institutional Services and Community Services for Dangerous Offender/Long-Term Offender Hearings (Exhibit 15); Correctional Service Reintegration Programs (Exhibit 16); Community Supervision Information Package (Exhibit 17); and 2020 Annual Report Corrections and Conditional Release Statistical Overview (Exhibit 18). I will review the testimony of these witnesses below. Elana Lamesse [ 49 ] Ms. Lamesse has been a parole and probation officer employed by the Ministry of the Solicitor General since October, 2000. She is based in Ottawa.

Part of her responsibilities include providing referrals to community resources for offenders. She has testified as a subject expert about what community services are available to persons who are on parole or probation, and has personal experience supervising such parties. [ 50 ] Exhibit 15, Overview of Institutional Services and Community Services for Dangerous Offender/Long-Term Offender Hearings, was tendered into evidence through this witness. It explains that services are provided in one of four intervention/service streams. These are: (

i) Basic Service Stream , for offenders who are subject to a probation order and assessed or identified at a lower risk of re-offending; (ii) Core Rehabilitative Program Service Stream , for offenders who are considered suitable for group intervention and assessed as having moderate to high needs in one or more of the five target program areas (anger management, substance abuse, anti-criminal thinking, sex offences, domestic violence); (iii) Individual Service Stream , for offenders who are moderate to high risk, including those whose criminogenic needs do not fall in any of the five target program areas or those considered unsuitable for group participation; and (iv) Intensive Supervision Stream , which is reserved for offenders who are assessed at highest risk of reoffending and pose a significant imminent threat to life or a threat of serious bodily harm to a specific victim, victim target group or the general public. [ 51 ] The witness went on to explain that offenders are not streamed due to the offence they commit but after a risk assessment is completed.

An offender who is high risk, then, is not necessarily violent, but poses a high risk of reoffending. Sex offenders are not permitted to be in the Basic Service Stream; their risk is determined by means of specific sex offender risk assessment tools. Programing available for such offenders who commit child online exploitation offences would depend on what is available in the community, such as through CAMH. However, the witness was not aware of whether CAMH offered programing specific for child pornography offenders would be available for Mr. Ewing given his conviction for a hands-on offence.

Offenders on probation could otherwise be referred for assessment there, in which case the wait time for initial assessment was 5 months. [ 52 ] One of the intervention programs for sexual offenders mentioned in Exhibit 15 is an 8-session program that is suitable for sentenced adult males who have sexually offended using child pornography only and who are serving their sentence in an institution or in the community. It is entitled, Sexual Offending Relapse Prevention Child Sexual Abuse Images (SORP CSA) Program.

However, it is not open to offenders who have committed a contact sexual offence. [ 53 ] It was put to the witness whether a condition of release for an offender such as Mr. Ewing would be restricting his access to the internet. Her response was that such a condition would be very difficult for a parole and probation officer to monitor as they typically do not go out into the community and rely instead on other agencies such as the police to do so. It was also her experience that the police would not do a home visit if requested by her staff to do so.

Neither was she aware of anyone scrolling through the phone of an offender under their supervision as a term of a court order. Likewise, she stated, it would be difficult to monitor the offender’s relationship with others or compliance in taking prescription medication. [ 54 ] Mr. Fennel, in his cross-examination, asked Ms. Lamesse whether the three other intervention programs for sexual offenders were also available to offenders such as Mr.

Ewing, these being: Sexual Offending Relapse Prevention 1 (SORP 1) Program, Sexual Offending Relapse Prevention 2 (SORP 2) Program, and Basic Cognitive Sexual Offending Relapse Prevention 1 (BC SORP) Program. She agreed that an offender could take the first two programs if they were available; however, the third one was reserved for offenders with developmental issues. [ 55 ] The witness also acknowledged that probation officers in Toronto supervising Mr. Ewing had dispatched the police to check on him.

She commented that this depends on the relationship between the parole and probation office and the police service in the particular community. It is not a practice that is used in Ottawa. Brad Tamscu [ 56 ] Mr. Tamscu also works for the Ministry of the Solicitor General of Ontario and is a subject expert as to services provided within

provincial correctional institutions. He was asked to comment on what programs might be offered to Mr. Ewing if he were sentenced to the reformatory. His response was that a number of variables would be taken into account as where he would be placed, including sentence length, the interest and motivation of the person in treatment, in which case the offender could apply to one of the three treatment centres in the provincial correctional system. One of them, the Ontario Correctional Institute (OCI) in Brampton, offers programing specific for child pornography offenders. Another, St.

Lawrence Valley Correctional and Treatment Centre (St. Lawrence) in Brockville has programing for sex offenders generally. However, the defendant would not be given priority for admission for the latter as he was not diagnosed as having a major mental illness. There are waiting periods for both places, and the defendant would be a non- urgent referral. [ 57 ] The witness was not aware whether the child pornography treatment programing at OCI distinguished between hands-on offenders or not in the same manner that programs at CAMH and the Ministry of the Solicitor General does so. Neither could he say whether Mr.

Ewing’s conviction for such an offence would constitute a barrier for admission to such a program. [ 58 ] Factors that are considered by the classification officer when an offender receives a provincial sentence and is interested in applying for a treatment program also include whether the Court has made a recommendation for treatment. The classification officer reviews the offender’s application for treatment and his/her ownership of the offence and willingness and motivation to take treatment. The officer will then indicate whether the offender’s application is supported or not.

The process generally takes about one month to finalize from the time sentence is imposed. [ 59 ] With respect to the treatment programs themselves, Mr. Tamscu explained that the stop sex offending program at OCI is an intensive program, which runs for 60 sessions, two sessions per week. The child pornography program is 20 sessions long and is offered twice a week. The former lasts 30 weeks and takes 7 and one-half months to complete; the later takes 10 weeks. Offenders can join the programs at any time as they are ongoing. They can also be taken more than once.

There is also peer support, educational support and group cohorts to complement the programing. The same is true for programing at St. Lawrence. [ 60 ] The witness was also asked to comment on the differences in programming offered by the Ministry of the Solicitor General and Correctional Services Canada. He replied that provincial programs are more short-term focused, reflecting the needs of the prison population, and the maximum length of sentences being capped at 2 years less one day.

On the other hand, federal programing is for longer term offenders who have more significant criminality and elements of criminal behaviour. As such, more intensive programs are offered in federal settings. Kim Gillespie [ 61 ] Ms. Gillespie has worked for Correctional Services Canada since 1998. She has been a parole supervisor and manager at a correctional centre. She also has knowledge of sexual offender treatment programs within federal institutions. Ms. Gillespie has testified as a subject matter expert at dangerous offender hearings.

Tendered into evidence during her testimony were Exhibit 16 Correctional Service Reintegration Programs and Exhibit 17 Community Supervision Information Package. [ 62 ] The witness stated that an offender sentenced to the federal penitentiary initially goes to the Joyceville Institution Assessment Unit. Over the next 90 days a risk assessment is undertaken, and the offender’s security level and placement at a parent institution is determined.

Any previous institutional history would be considered in this regard. [ 63 ] For federal offenders who are assigned to the sex offender program or stream, no difference is made for on-line or hands-on offences. The programs have open intake; when an offender arrives he/she automatically joins the program module, which recycles throughout the year. As set out in Exhibit 16, there are two different levels in the Sex Offender Stream: high intensity and moderate intensity. The former consists of 100 group sessions of 2 to 2.5 hours each. There are also 8 individual sessions.

Conversely, the latter consults of 57 group sessions of the same duration, as well as 5 individual sessions. Offenders who take the high intensity level generally have a lengthy history of sex offences offending and reoffending, and a lack of any kind of understanding of their offence cycle or lack of remorse. Only offenders who agree to such treatment are accepted into the program. [ 64 ] Reference was also made to Exhibit 17, the Community Supervision Information Package. An offender who is placed on a long- term supervision order (LTSO) can be in either the provincial or federal system.

It may commence before the offender is released on parole in the federal system or while the person is in the community after a provincial sentence is served. According to Ms. Gillespie, two years is the ideal period for making appropriate inquiries about the offender before they are released into the community. Once in the community, there is no moderate or intensive programing available for sex offenders. [ 65 ] Once released from the federal system, high risk offenders are typically required to reside at a community based residential facility (CRF) or community correctional center (CCC).

These are half-way houses. There is a CCC located in Toronto at 330 Keele Street. These are not jails and offenders are permitted to be out within the community with minimum supervision. The CCC facility on Keele Street, which is in a residential area with a nearby park, is staffed by correctional service employees, unlike the staff at CRF which might be operated under contract by the John Howard Society or Elizabeth Fry Society. The number of sex offenders on site at Keele Street is capped at 25 percent. [ 66 ] Ms.

Gillespie was asked to comment on the type of conditions that could be imposed on sex offenders like Mr. Ewing to prevent him accessing the internet while residing at the Keele Street CCC. She responded that it is common for the parole board to impose special conditions to prohibit offenders from having internet access or acquiring or possessing any electronic equipment with internet access. However, it is very difficult, she added, to police such a condition when an offender is in the community. Offenders might also have more than one phone or sim card which they could hand over for inspection.

Neither can one be forced to unlock a phone without a court order. There is no technology she is aware of for a third party to monitor internet usage. Neither is it possible to monitor an offender’s whereabouts in the community around the clock. [ 67 ] It was further stated by the witness that it is difficult to monitor the offender’s contacts in the community, apart from their intended destination being recorded. The offender is expected to self-report their whereabouts and community contacts. It is very rare for the police to conduct surveillance.

If there are collateral contacts, such as an employer or educator, they can be contacted as well. However,

if an offender left the premises to go to an internet café for internet access, there would be no real way for this to be monitored. [ 68 ] The witness asserted as well that the CCC cannot require an offender to take sex reducing drive medication such as antiandrogens. The CCC can request that special conditions be imposed by the Parole Board that the offender follow treatment or submit to an assessment of a medical practitioner as recommended; if the offender chooses not to participate this may impact the CCC’s ability to manage their risk and restrict their privileges.

It is up to the offender to take medication that is prescribed for them. Ms. Gillespie added that if offenders are reluctant or medically unable to take antiandrogens, other less invasive options will be considered, and a risk management plan developed accordingly. CCC staff will not attempt to persuade an offender to take medication contrary to a doctor’s advice. [ 69 ] With respect to LTSO, as set out in Exhibit 17, such orders can be imposed on an offender designated as a Long-Term Offender or a Dangerous Offender. Even where a LTSO is imposed, CSC does not provide 24-hour supervision.

A Dangerous Offender serving an indeterminate sentence is eligible for full parole after they have served seven years from the date of arrest; he/she is eligible for day parole and unescorted temporary absences after three years. Access to treatment at the LTSO portion is limited to maintenance or community based programing. The key document for an offender remains the correctional plan which is developed at the intake stage and updated at critical times throughout the process, such as when the offender is getting ready for release.

The plan identifies the level of risk and needs of the offender; this determines, in turn, how often the offender needs to be seen by a parole officer. In the case of an indeterminate sentence this could be every one to two months. [ 70 ] In cross-examination, Ms. Gillespie was referred to Exhibit 18, 2020 Annual Report, Corrections and Conditional Release Statistical Overview. According to it, there are 643 Dangerous Offenders in the total offender population in 2019-2020.

Of these 18 are on day parole and 22 on full parole. [ 71 ] The witness further explained that in order for an offender to take a maintenance program in the community, a high or moderate intensity would have been taken beforehand. The offender can repeat maintenance programs to prepare for their release phase. The Integrated Correctional Program Model offered by CSC has a discrete sex offender stream, in fact, which is described in Exhibit 16 as having a primer, main program and maintenance component, all of which are available to inmates at any time during their stay. [ 72 ] Defence counsel also asked Ms.

Gillespie about actions that can be proactively taken by a parole officer in the event of breach of conditions or increase in risk as set out in the Exhibit 17 Community Supervision Information Package. Where there is a potential increase in the level of risk, a breach of a standard or special condition, the parole officer can cause the offender to return to custody by means of a warrant of suspension and apprehension. This can be done before any actual breach occurs.

A LTSO can be suspended where a breach of conditions has occurred, or to prevent a breach of conditions, or to protect society. [ 73 ] While it was previously noted that even if an offender has a residency condition, CSC does not provide 24-hour supervision, the witness agreed it is stated in Exhibit 17 that the spirit of the LTSO designation “is the reasonable possibility of eventual control of risk into the community.” [ 74 ] In re-examination Ms. Gillespie explained that the parole officer does not have authority to issue the warrant of suspension and apprehension. This is a decision made by the supervisor.

A suspension is intended to be a tool of last resort as it will cause the offender to be returned to custody. Alternative measures are considered prior to any suspension. There is no authority to revoke a LTSO. Expert Evidence: Overview [ 75 ] Two forensic psychiatrists have given evidence in the proceedings. Dr. Jonathan Gray was called by the Crown; Dr. Julian Gojer gave evidence for the defence. They each are of the opinion that there was a lack of evidence to suggest that Mr. Ewing would qualify for the legal designation of dangerous offender status.

They also agreed that there was sufficient psychiatric evidence for him to qualify for the designation of long-term offender status. However, their respective opinions as to Mr. Ewing’s risk of potentially reoffending with another child pornography offence and hands-on was somewhat different. Dr. Gray opined that the defendant’s high risk of potentially reoffending with another child pornography offence “will be a long-term risk.” On the other hand, Dr.

Gojer stated that given the defendant’s inability to control his sexual impulses and without treatment “it is more likely than not he will reoffend” and that this was likely to be in the area of use of child pornography on the internet. As well, given his pedophilic interests and his acting on his urges in the past, there was “a real risk of a hands-on offense against a child.” The evidence of Dr. Gray and Dr. Gojer is of seminal importance to the positions advocated by counsel. I shall turn to this evidence now. Dr. Jonathan Gray [ 76 ] Dr. Gray’s impressive curriculum vitae is set out in Exhibit 7.

He is the Clinical Director of the Integrated Forensic Treatment Unit in Brockville Ontario. He was appointed the Clinical Lead of the Sexual Behaviours Unit at the St. Lawrence Valley Correctional Institute in Brockville from 2016-2018. He currently works at the Royal Ottawa Health Care Group Ottawa site where he completes court ordered risk assessments for sentencing purposes. Dr. Gray’s 52-page report on Mr. Ewing, entitled Dangerous Offender/Long- Term Offender Assessment, dated July 29, 2021, is Exhibit 8. [ 77 ] Dr.

Gray had access to information concerning the defendant’s past criminal convictions and the subject offence. He was provided with the police synopsis and images and chat logs taken from the devices seized from the defendant’s apartment. He also spoke to Mr. Ewing in person for 2.5 hours on July 21, 2021. During this interview, Mr. Ewing told Dr. Gray that when he first came in contact with the internet back in 2006 he was “compulsive” in downloading a lot of files from other users and that he found them “interesting” and made him feel aroused.

He stated that he had “a vague idea” that what he was doing was against the law, but he was not thinking about consequences. He added, “At the time, I wasn’t thinking about anything but myself. That’s sometimes part of my problem.” He estimated that he used the internet to download child pornography, or view images and videos he found, approximately two hours a day on most days. He was feeling “a bit lonely and depressed” at the time. [ 78 ] Following his release from prison in 2007, the defendant recognized his problems stemmed from “self-esteem issues and depression”.

When he felt lonely and depressed, his mood improved when looking at child sexual exploitation material. He returned to

visit websites he had accessed before in 2006. His mood was down again when he was charged with his second set of offences involving his young cousin around 2009 and 2010. He was on probation at the time. His primary concern was how long he would be sent back to jail, and not the impact of the offence on his young victim. Upon his release his mother drove him to an apartment where he remained until his arrest for the instant charges. There he was able to access a computer and create a gmail account. He received treatment at CAMH in 2015 and spoke to a psychiatrist during this period as well.

There were no follow-up appointments. [ 79 ] The defendant acknowledged to Dr. Gray that his breach charges when he looked at material on the internet in the library was “stupid mentality” and he did not think he was going to get caught. Once he purchased a cell phone for his birthday in June, 2017, he resumed viewing child pornography. His preference was for girls between 8 and 11 years old. He was again feeling lonely and isolated; he did not socialize with anyone, apart from his mother and brother. Dr.

Gray commented in this regard that the defendant’s lack of insights and rationalization of his conduct has contributed to his cycle of criminality. [ 80 ] With respect to Mr. Ewing’s course of treatment, Dr. Gray noted that prior to committing the index offences, he had successfully completed sex offender treatment at OCI and CAMH. He had also spoken to a psychiatrist. There was also an incident in 2017 where he attended the Easter Parade in Toronto and an observer was sufficiently concerned that he intervened when he noticed Mr. Ewing recording images of children on his phone.

However, he denied focusing on children was he was there. Dr. Gray agreed that it was a concern the defendant was not aware of the risk he was taking by attending such activities. [ 81 ] Although Mr. Ewing’s collection included figures that were bound in sexually suggestive ways and there were images of coercive sex with them and anime, Dr. Gray did not follow-up with any testing of his interest in bondage and sadism. Mr. Ewing denied having interest in coercive sex with children. It was brought to the witness’ attention that Dr. Gojer did ask Mr.

Ewing about this, and he admitted to having fantasies about such sexual practices with children. However, Dr. Gray opined that the primary interest was his pedophilia disorder, and he did not make further inquiries as to sexual sadism. He also noted that his hands-on offence involved manipulation, not violence, and there was no connection in his opinion between the defendant’s pedophilia and sadism. [ 82 ] Dr. Gray did have access to Dr. Gojer’s report (Exhibit 9).

There was reference in it to the defendant telling a sex crimes unit officer in 2007 that he had been collecting child pornography for the past 3 to 5 years and that some of the images involved bondage and violence. He told the officer that an image of a 8-9 year old girl with her genitals exposed, being spanked by an adult male, was “hot” and he wished the child was his daughter. His email handle for the internet account that had this image was “daughterlovingdaddy”. Dr. Gray stated he took this information into account in rendering his expert opinion.

However, he did not have access to the defendant’s interview with Dr. Gojer where he agreed to having some attraction to sexual violence involving children. He also told Dr. Gojer that he had a fetishistic interest in children’s clothing and fantasized touching, fondling, kissing, performing oral sex and having intercourse with underage females, including spanking them. [ 83 ] Notwithstanding the above, Mr. Ewing’s statement to Dr. Gray was he fantasized when masturbating about adult women “90 percent of the time.” Sexual thoughts involving children, though, still did come into his mind. Dr.

Gray allowed that it would have been more truthful of the defendant to tell him he was trying to fantasize about adults rather than children. He agreed with Crown counsel’s suggestion that from the perspective of management in the community, it was problematic that the defendant was not being truthful to Dr. Gray and was lacking insight. [ 84 ] Dr. Gray’s report included a self-reported psychological questionnaire he conducted with the defendant. In it Mr.

Ewing agreed with statements that suggested underlying cognitive distortions about children and sexuality, such as “some victims initiate sexual activity” and “some children can act very seductively.” Other statements, such as “some young children are much more adult-like than other children” and “children can give adults more acceptance and love than other adults” specifically suggested he had an emotional attachment to children. It was noted elsewhere in the report that Mr. Ewing has never had any close friends and had no real social contacts in the community other than family.

The witness went on to explain that such cognitive distortions help people rationalize their behaviour and is concerning as it reflects lack of insight. This is also problematic for any treatment the defendant may undergo; he had, in fact, previously reoffended following an iteration of treatment, which suggested it did not have any long-lasting effect. [ 85 ] During his incarceration in 2007, Mr. Ewing admitted to a correctional officer that he was a procrastinator “with very little ambition and no motivation.” He acknowledged that these qualities would be barriers to his treatment.

He also described himself as being “a loner, shy, lacks self-confidence and has no real friends to rely upon for support and guidance.” Dr. Gray noted, however, that others described him as being motivated when he began treatment programs. The issue, though, was how long he would remain so. The witness did not think that this was caused by cognitive deficiencies. He also believed Mr. Ewing would be able to function within group settings. [ 86 ] When the defendant began working with a probation officer in 2010, they discussed his sexual fantasies and canvassed issues related to relapse prevention. Mr.

Ewing was quoted as saying, “If I knew I wouldn’t get caught. I would have sex with a 9 or 10 year old female. It would probably hurt, but she would like it. I would really enjoy having oral sex with her.” He also admitted to being attracted to 8-12 year old girls, “especially red heads”. [ 87 ] These comments followed the defendant’s conviction for a hands-on sexual offence involving a young girl. Dr. Gray stated that he agreed with Dr. Gojer’s assessment in this regard that Mr. Ewing has shown an inability to contain his sexual impulses and without treatment it is more likely than not he will reoffend.

He wrote in this regard in his own report that if the defendant was able to gain prolonged, unsupervised access to a female, “it is likely he would commit a contact sexual offence.” Mr. Ewing had not shared with him, as he had with Dr. Gojer, that he fantasized having a relationship with an adult female and having a daughter who he could use for his sexual needs. [ 88 ] Another probation officer who supervised the defendant in 2015 was concerned that he would situate himself in places like the Canadian National Exhibition, where he would access to children.

He was advised not to do so, but his probation officer suspected that he did so nonetheless. His resume also indicated places he volunteered at that were attended by children as well as adults. Dr. Gray stated that it was obvious Mr. Ewing identified emotionally with children and that his attraction to them, as evidenced by the figurines and toys and images in his home, was very sexual in nature.

[ 89 ] Dr. Gray was questioned about the risk assessment he conducted on Mr. Ewing. He used the Static-99R, the most widely used sex offender risk assessment in the world overall, and one that is designed to assist in the prediction of sexual and violent recidivism for sexual offenders. Mr. Ewing’s score was 4, placing him in the second highest of five ascending risk categories for sexual or violent re- offence at an “above average” relative risk.

Approximately 15 percent of Canadian sexual offenders would have a higher score, and hence a higher relative risk of re-offence than the defendant; 74 percent would have a lower score and therefore lower relative risk, while 11 percent would have the same score as Mr. Ewing. According to the risk tables updated in 2016 by the authors of the Static-99R, approximately 17.3 percent of sexual offenders with a score of 4 reoffend with another sexual offence within 5 years, and 27.3 percent reoffend with another sexual offence within 10 years. [ 90 ] Another risk assessment instrument employed by Dr.

Gray was the STABLE-2007 which measures empirical risk factors that are routinely addressed as part of correctional rehabilitation for adult males convicted of sexual offences against a child or non-consenting adult. Whereas the Static-99R score only changes if the person ages into a new age scoring category or incurs additional charges, the STABLE-2007 score may change over time if one’s situation changes or there are benefits from appropriate treatment. Dr. Gray assigned Mr. Ewing a score of 14 out of a possible 26 points on the STABLE-2007, which placed him in the high density range of criminogenic needs.

Out of 100 individuals in the study sample convicted of a sexual offence, 88 would have a lower score, 3 would have the same score, and 9 would have a higher score than Mr. Ewing. [ 91 ] The STABLE-2007 can be combined with the Static-99R to provide a composite assessment of risk and needs. When Mr. Ewing’s scores on these two instruments were combined, his composite assessment increased to Level IVb, “well above average risk” category for supervision and intervention using the standardized risk framework. This is the highest of the stratified risk levels.

Individuals in this range have many criminogenic needs, most of which are chronic and severe. Access to prosocial resources and strengths is likely limited due to significant barriers. The rate of sexual reoffending for individuals in Level IVb is about three to four times the average rate of reoffending for the overall population of individuals convicted of sexually motivated offences. Most will transition into Level III “average risk” after a sufficient regime of treatment, positive life changes, or if they remain offence free in the community for 10 to 15 years. [ 92 ] A further test employed by Dr.

Gray was CPORT, a Child Pornography Offender Risk Tool. This instrument is used to demonstrate relative risk compared to other sexual offenders with child pornography offences in their history. Mr. Ewing scored 4 on the CSORT, due to his prior criminal history, a prior contact sexual offence, a failure of conditional release, and an admission of pedophilic sexual interests. This score is relatively high compared to other child pornography offenders. Out of the 309 cases in the original study population who had no missing items, only 19 (6.1 percent) had scores of 5 or above.

The defendant’s relative risk on the CPORT would be higher if he was younger than 35 or if his sexual preference was for young boys rather than young girls. [ 93 ] Additionally, the Psychopathy Checklist Revised (PCL-

R) was administered by Dr. Gray. It compares the subject against the psychological construct of psychopathy. Psychopathy has been shown to be associated with recidivism with violent or general offences and is a strong predictor of risk. Higher scores on the PCL-R also indicate poorer prognosis for treatment. Mr. Ewing was assigned a score of 8. This placed him in the 6.0 percentile compared to a sample of North American male offenders whose average score is between 22 and 23.

His score, then, was well below average or an incarcerated male offender; it was well short of the cut-off of 30 to meet the psychological construct of psychopathy. It was still higher, though, than the average score on the PCL-R for the general population of adult males, which is approximately 4. With a score considerably lower than 30, psychopathy was thus not a responsivity factor for treatment effectiveness, that is, there were no psychopathic traits that could potentially interfere with Mr. Ewing’s ability to benefit from treatment. [ 94 ] The next portion of Dr.

Gray’s report addressed the dangerous offender designation and whether the defendant satisfied the requisite criteria. There are three relevant considerations: (

i) the predicate offence forms part of a broader pattern; (ii) there is a high likelihood of recidivism; and (iii) the offender’s violent or sexual conduct is “intractable”. [ 95 ] With respect to the first of these three prongs, namely, whether Mr. Ewing had displayed a pattern of repetitive violent or sexual behaviour, demonstrating a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses, Dr. Gray considered his prior convictions, in 2007 and 2018, for very similar behaviour.

He also admitted to engaging in similar behaviour that did not result in charges while he was in the community on bail conditions in 2010 and 2011. Mr. Ewing also admitted that he knew the behaviour was illegal and there was a potential he could be caught but he did not think of those consequences as he was caught up in his online illegal activities. Consequently, Dr.

Gray concluded that the behaviour has a strong likelihood to cause psychological pain to others, given those depicted in images and videos involving the sexual exploitation of children are subject to re-traumatization by others who are arrested for possessing their images, and the use of such materials has the potential to encourage more production which leads to more victims. [ 96 ] As for there being a high likelihood of recidivism, Dr. Gray noted that Mr. Ewing’s risk category was the highest of five.

Hence, if any sexual offender would be considered to have a “high likelihood of reoffence”, the defendant would qualify for this designation. Dr. Gray considered, however, that his specific risk of sexual reoffence is much higher for another child pornography offence rather than a contact sexual offence against an underaged male or female. As the witness previously noted, only a “very small percentage” of child pornography offenders had a higher score than Mr. Ewing’s on the CPORT, and therefore a higher theoretical risk of offence.

The defendant was therefore at a relatively high risk among the subcategory of sexual offenders with primarily child pornography offences, who are as a group, sometimes considered to be of lower risk of reoffence than sexual offenders with mainly contact offences. The necessary, although not sufficient characteristic in Mr. Ewing that motivates offences for which he is particularly at risk, opined Dr. Gray, is his underlying pedophilic disorder.

He was therefore at a high likelihood of committing a further sexual offence, specifically a child pornography offence, especially without interventions or monitoring under terms of supervision in the community. His risk of committing a contact sexual offence against a child was lower but would depend completely on whether he had the opportunity to spend unsupervised time with a female child. [ 97 ] Dr. Gray turned next to the issue of whether Mr. Ewing’s behaviour was “intractable”, which is a legal term, not a psychiatric one. There was some evidence, in his opinion, that it was.

This included the fact that he had struggled with his underlying diagnosis of pedophilic disorder, which was one of the main motivating factors for his offending behaviour, at least since discovering child

pornography on the internet for the first time reportedly in 2006. In addition, he had continued his illegal online behaviour despite “successfully” completing two sexual offender groups, at OCI in 2007 and at the Sexual Behaviours Clinic at CAMH in 2015. He was also aware that using sexually explicit material involving children online was exploitative and harms the child victims depicted, yet he continued his online behaviour despite such knowledge. [ 98 ] On balance, however, Dr. Gray believed that Mr. Ewing’s risk of sexual reoffence was not intractable, considering all the evidence.

When under terms of strict supervision in the community, he appeared to have been able to refrain from engaging in his illegal online behaviour for the most part. When under terms of probation, and seen regularly by a probation officer, he had not apparently engaged in illegal online behaviour. It was therefore the witness’ opinion that under terms of probation more similar to what he had had in the past, along with other interventions, there was “a potential his risk could be manageable in the community” and thus not intractable. Dr.

Gray noted, further, that while the defendant had reoffended in the past after courses of treatment, there were short-term benefits in that he did not reoffend for two to three years while out in the community. Moreover, he had not gone through sexual offender treatment that was specifically designed, or at least considered strongly, those with online sexual offences. As a result, Mr.

Ewing’s risk could not be said to be intractable at this point until he has at least been offered sex-drive reducing medications and either refused or attempted them and still reoffended. [ 99 ] There was therefore not sufficient psychiatric evidence to suggest that the defendant qualified for a legal designation of dangerous offender status, given that the underlying high risk of reoffence was not intractable. Although his overall risk of reoffence was in the highest of five risk categories (Level IVb), his risk was heavily weighted towards dynamic rather than static rick factors.

This suggested, in the witness’ opinion, a “higher potential manageability of his risk”, with appropriate interventions, compared to someone with a predominance of static over dynamic risk factors. Dr. Gray did not think that just before Mr. Ewing had previously declined to take anti- sex drive medication meant that he would be against taking it in the future, and he indicated he was now open to doing so. [ 100 ] Dr. Gray next addressed in his report whether the defendant would qualify for the designation of long-term offender status. This required consideration, in turn, as to whether Mr.

Ewing posed a substantial risk of reoffence and that there was a reasonable possibility of eventual control of the risk in the community. [ 101 ] Having regard to the latter consideration, which unlike the factor of substantial risk to reoffend had already been addressed, the witness noted the defendant stated he was looking forward to further treatment and was considering moving to Edmonton, Alberta, where there were “lots of mental health services” and his aunt had lived there, although he had no social contacts there currently. He thought he could work as a janitor or in a mailroom.

He indicated he would not purchase a phone with internet access. However, he admitted he would need someone to monitor him as he would be unlikely on his own to stay away from illegal websites. He also stated he would not be opposed to taking sex drive reducing medications “as a last resort”. [ 102 ] The interventions necessary to manage Mr. Ewing’s risk of sexual reoffence in the community could be divided into three categories, according to the doctor. These are: (

i) environmental interventions, (ii) psychological interventions, and (iii) pharmacological interventions. He addressed these in turn, as follows. [ 103 ] Environmental recommendations would help prevent the defendant from committing a sexual offence in the future by ensuring he had no unsupervised contact with female children. This would include a prohibition on his doing so, as well as prohibiting him from working or volunteering at places where he could have contact with underaged females. His probation officer could also monitor his relationships, both romantic and platonic.

However, if he was able to gain prolonged, unsupervised access to a female child, it was likely he would commit a contact sexual offence. Dr. Gray acknowledged to Crown counsel that these were stringent parameters. Moreover, it would be much harder to control his illegal use of the internet while in the community. One way of doing so would be prohibiting him from having a cell phone with internet access. A filter to prevent this could be monitored by a third party.

He could also be required to meet with a supervising probation officer at least every two weeks to monitor his compliance with conditions of release, emerging relationships, employment venues and evidence of risk factors that might surface during the course of his supervision. [ 104 ] With respect to psychological interventions, Dr. Gray acknowledged that there were no programs in the federal system developed specifically for offenders whose primary risk is related to possession or distribution of internet child sexual exploitation materials.

However, the more general programming available within the institution could help reduce the impact of dynamic factors on the defendant’s risk of reoffence for at least the short-term once he was released into the community. Once he was released from serving his sentence, there was also a Sexual Behaviours Clinic offered at CAMH specifically for offenders with online sexual offences called the “Child Pornography Group”. This would assist the defendant develop better coping mechanisms specifically in relation to his risk of child pornography reoffence.

He could therefore be required to treatment programs as directed by his supervising parole officer. However, Dr. Gray subsequently came to understand that hands-on offenders are not eligible for acceptance in the CAMH program. [ 105 ] In terms of pharmacological interventions, Dr. Gray observed that Mr. Ewing had never previously had a trial of any psychiatric medication to treat his pedophilic disorder, or to treat any other psychiatric condition. His low moods, which contributed to his offence cycle, could therefore be addressed by antidepressant medications.

Sex-drive reducing medication could also be employed. The witness noted, though, that the parole Board cannot require offenders to submit to specific medication. The defendant had also previously declined to consider taking anti-libidinal medication in the past. Moreover, taking such medication would not impact Mr. Ewing’s “dynamic risk factor of emotional identification with children”. Neither would it “absolutely ensure” he would not drift again into using the internet again to access child pornography in the future. It would, however, be an important part of his risk management plan. [ 106 ] In

summary, Dr. Gray was of the opinion that there was a lack of psychiatric evidence to suggest that the defendant would qualify for the legal designation of dangerous offender status. There was, however, sufficient psychiatric evidence for him to qualify for the designation of long-term offender status. His high risk of potentially reoffending with another child pornography offence would be a long-term risk. The main underlying factor for such risk was his diagnosis of pedophilic disorder which is a lifelong diagnosis that requires continual monitoring and supervision.

While aging can potentially reduce the risk of reoffence in violent offenders and sexual offenders against adults, the effects of this “burnout” phenomenon is less pronounced with sexual offenders with children, especially online sexual offenders. This is so, according to the witness, because there is no necessity of physical stamina to engage in online sexual offending in comparison to contact sexual offending against children or adults.

[ 107 ] In cross-examination, Dr. Gray agreed with Mr. Fennel that the Static-99R has been updated since its release to provide for different age categories. As a result, it has been found that recidivism rates have declined using this risk assessment tool. For example, Mr. Ewing’s score would decline by two points when he turns 60.

This, in turn, would reduce his risk of reoffence for another sexual offence within 5 years from 17.3 percent to 11.3 percent; over a period of 10 years his risk of reoffending would drop from 27.3 percent to 19.1 percent. [ 108 ] With respect to the STABLE-2007, the witness acknowledged that the defendant was separated from the next lowest level of risk by just one point. His risk of sexual offence recidivism would decrease to the higher end of the base rate in this event.

Factors that can also influence one’s score on this risk assessment tool is treatment programming and supervision. [ 109 ] In terms of the CPORT, Dr. Gray agreed with Mr. Fennel there was a significant difference the recidivism rates over 5 years where the defendant was placed with a score of 4 (20.8 percent) and the next level of 5 (47.1 percent). To enter this latter risk level, the defendant would have to be younger or have a sexual preference for male children, both of which factors were inapplicable in Mr.

Ewing’s case. [ 110 ] The witness further agreed in cross-examination that the defendant did not deny his attraction to young female children during the course of their interview. He agreed that it was a positive sign for an offender to admit fault and a necessary step in any treatment program. There were periods of time while on probation that he was compliant and responded well to supervision. A long-term supervision order would provide greater resources for Mr. Ewing than probation; a residence condition in a half-way house would also provide him with more structure than he has had in the past. [ 111 ] Dr.

Gray observed that Mr. Ewing was last in treatment at CAMH in August, 2015. He attended 11 of the 14 90-minute sessions that were offered to him. In the event he received a federal sentence, there would be 100 sessions that were 2 hours in length. While it had not been recommended at CAMH that he receive further treatment, follow-up in the community would have served Mr. Ewing well, Dr. Gray agreed. [ 112 ] It was further stated by the witness that a person like Mr. Ewing who has a sexual attraction to children would benefit from a treatment group where he could talk about coping strategies.

He likely needs to do this for the rest of his life. This would also be positive for him, given his lack of friends in the community. There was no reason preventing the accused from participating in sex offender group treatment programs. His low score on the PCL-R which measures psychopathy further indicated he would benefit from such treatment. While the defendant had benefitted from treatment programs in the past before relapsing after a few years, such relapses are not uncommon, and it sometimes takes a couple of courses of treatment before the treatment sinks in.

In any event, most recidivists do not re-offend for sexual offences. The defendant’s desire to relocate to Edmonton where he would have access to mental health services and not be monitored by his mother, who was not suitable for relapse prevention supervision, was also a positive in the witness’ opinion. [ 113 ] With respect to the Static-99R test, Dr. Gray agreed that the authors he referenced in his report, R.K. Hanson et al, stated in a 2017 publication on Dynamic Risk Assessment, that 80 percent of offenders with a history of sexual offence in the high risk range never reoffended for another sexual offence.

As such, the authors’ initial findings should be revised downward. Most offenders, then, in Level IV4 transition to Level III after sufficient doses of treatment. [ 114 ] The witness agreed with the proposition put by defence counsel that a pedophilia diagnosis does not indicate anything about one’s ability to control behaviour. In other words, there are plenty of people with this disorder who do not commit sexual offences with children or look at child pornography. It is, however, a life-long diagnosis. In Mr. Ewing’s case he has had a life-long attraction to female children. As such, Dr.

Gray concurred that he should structure his life to address this condition. [ 115 ] Mr. Ewing has Type 2 Diabetes. Dr. Gray agreed that men with such a condition are more likely to have reduced testosterone. Antiandrogens can also be used to lower his testosterone level. Aging will be another factor in this regard. Anti-depression medication has also been shown to be effective for addressing sexual interest as it can help break the cycle of low moods and isolation. At OCI the defendant had been placed on suicide watch, in fact, for a lengthy period. The witness acknowledged that Mr.

Ewing had never been treated with any such medications before. He would need to be under doctor’s supervision in the event he did so. [ 116 ] It was put to Dr. Gray that sexual arousal due to inflicting pain on others is very rare. To this he agreed. He further agreed that any sexual activity with a child is coercive by its very nature. Mr. Ewing was not found to possess any paraphernalia related to having coercive sex with children. However, there were images in his possession of sex with kids and animals. Dr. Gray did not think it was necessary, though, to pursue phallometric testing for Mr. Ewing.

This was not a primary focus of his report, although the defendant did say to Dr. Gojer that he was attracted to sex with bondage of children. [ 117 ] If Mr. Ewing was sentenced to 5 years in the penitentiary, he would be able to complete intensive sex offender programming and be over 50 years old upon release. A long-term supervision order of 10 years would mean he was over age 60 when in the community. Dr. Gray opined that he would be at low risk to reoffend if he gets through this period of time while successfully completing treatment programs. He could also be prescribed sex drive reducing medication.

In the past he had responded well to such programs, although not fo

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