Her Majesty the Queen - v. -, 2021 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 4 Date: January 07, 2021 Information: 991054758 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gabriel Curtis Roy Appearing: K.L. Grier For the Crown M.D. Nolin For the Accused LONG-TERM OFFENDER DECISION Q.D. AGNEW , J [ 1 ] Mr.

Roy has pled guilty to charges that he did, on or about February 3, 2018 at or near Saskatoon, Saskatchewan: a. have in his possession child pornography, contrary to s. 163.1(4) of the Criminal Code ; b. being then bound by a recognizance under s. 810.1(1) of the Criminal Code , breach that recognizance by failing to comply with the condition that he not access, possess or view any pornography of any kind, contrary to s. 811 of the Criminal Code .

[ 2 ] The Crown served notice that it intended to apply for an order pursuant to s. 753.1 designating Mr. Roy a long-term offender. This is the decision of that application. Record [ 3 ] Mr. Roy’s offending history is strikingly different from those often seen in long-term offender and dangerous-offender applications, in that it is not primarily a history of violent offending. His record (omitting ancillary orders) can be summarized as follows: (

a) May 1, 2008: Offences - sexual touching of a three-year old - s. 153(1)(a) - sexual assault (same complainant, same incident) - s. 271 Sentence - 18 months time served, concurrent on each count - 3 years’ probation (

b) November 18, 2009: Offences - possession of child pornography - s. 163.1(4) - breach of probation (keep the peace) - s. 733.1(1) Sentence - 1 year concurrent on each count (

c) March 29, 2012: - consent s. 810.1(1) recognizance (

d) March 12, 2013: - consent s. 810.1(1) recognizance (

e) August 22, 2013: Offence - breach of recognizance (possession of computer capable of accessing the internet) - s. 811 Sentence - 6 months (

f) August 13, 2014: Offences - possession of child pornography - s. 163.1(4) - breach of recognizance (possession of pornography) - s. 811 - breach of recognizance (possession of device capable of accessing the internet) - s. 811 - breach of undertaking (possession of cell phone or computer) - s. 145(3) Sentence - 42 months (

g) September 1, 2017: - consent s. 810.1(1) recognizance (

h) February 22, 2018: Offence - breach of recognizance (possession of device capable of accessing the internet or recording photos or video) Sentence - 6 months [ 4 ] The facts which are the subject of this decision arose concurrently with those underlying the charge for which Mr. Roy was sentenced on February 22, 2018. He was charged on a separate Information with respect to the current charges, some time after that guilty plea.

[ 5 ] Mr. Roy therefore has one “hands-on” offence, four incidents of breaching conditions resulting in seven convictions, and three convictions for possession of child pornography, all including the current offences. Legislation [ 6 ]

Section 753.1 of the Criminal Code [ Code ], the

section under which this application proceeds, reads as follows: 753.1

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

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

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

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

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

a) the offender has been convicted of an offence under

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

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

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

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

(3) If the court finds an offender to be a long-term offender, it shall (

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

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years.

(3.1) The court may not impose a sentence under paragraph (3)(

a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender’s being found to be a long-term offender, if the application was one that (

a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(

a) and (

b) apply; and (

b) was treated as an application under this

section further to the court deciding to do so under paragraph 753(5)(a). (4) and (5) [ Repealed , 2008, c. 6, s. 44(2) ]

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. The Joint Submission [ 7 ] The Crown and the offender have jointly submitted the following proposal to the Court: 1. a long-term offender designation with respect to count 1 (possession of child pornography);

2. on count 1, a sentence of five years’ incarceration less remand credit, and a 10-year long-term supervision order; 3. remand credit from June 22, 2018 to the date of sentencing at the rate of 1.5 days’ credit for each day in custody; 4. on count 2, a consecutive sentence of one year’s incarceration (breach of s. 810.1 recognizance); 5. ancillary orders: a.

DNA pursuant to s. 487.051; b. a lifetime s. 161(1) order: - not to attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; - not to seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; - not to have any contact — including communicating by any means — with a person who is under the age of 16 years, unless under the supervision of a person whom the court considers appropriate; - not to use the Internet or other digital network, with the following exceptions: (

i) if required to do so by an employer (other than the offender), and then only on a computer or other device owned and controlled by that employer, used solely in the course of that employment, used only on that employer’s premises, and only with the informed consent of that employer; (ii) if required to do so in the course of participating in an educational program at a recognized educational institution, and then only on a computer or other device owned and controlled by that educational institution, used solely in the course of those studies, used only on that educational institution’s premises, and only with the informed consent of that educational institution; c. pursuant to s. 490.012 and s. 490.013(5), a lifetime order for the offender’s registration pursuant to the Sex Offender Information Registration Act ; d. that the transcript of these proceedings and associated documents be forwarded to Correctional Services of Canada, pursuant to s. 760; e. forfeiture of a black Samsung tablet (model and serial number specified). [ 8 ] The joint submission before me can be broken down into four distinct parts: a. find the accused to be a long-term offender (count 1); b. sentence him to six years’ incarceration (five years on count one, and one year consecutive on count two), less remand credit; c. make a 10-year supervision order (count 1); d. make various ancillary orders (count 1) - DNA order pursuant to s. 487.051 - lifetime s. 161(1) order [ 9 ] I am satisfied that (b), (

c) and (

d) are all properly the subject of a joint submission: (

b) and (

d) are clearly part of the normal sentencing regime, and are part and parcel of normal joint submissions; (

c) clearly follows from (a), and I am satisfied that if I find Mr. Roy to be a long-term offender, the length of his supervision order is also properly the subject of a joint submission. I am, however, concerned about whether or not (a), the long-term offender designation, can be the subject of a joint submission. [ 10 ] There is a qualitative difference between (a), on the one hand, and (b), (

c) and (

d) on the other. In order to make a long-term offender designation, there are certain findings and conclusions the court must make as set out in s. 753.1. Absent such findings, the court has no power to order that a person be subjected to a long-term supervision order. It is a matter of jurisdiction: without the finding that a person is a long-term offender, the court has no power to make a supervision order. [ 11 ] A large number of courts, over the course of many years, have made the point that jurisdiction cannot be given by consent -

that is, that the consent of the Crown and defence cannot give the court the power to do that which it otherwise lacks the power to do.

See, for example: R v Iaci, (BC CA), [1925] 4 DLR 474 at para 5 (BCCA); R v Henderson, [1929] CCC 82 at para 5(BC SC); R v Jarvis, (ON CA), [1936] 3 DLR 26 at para 34 (Ont CA); R v Hoy, (BC CA), [1950] 1WWR 520 at para 8 (BC CA); R v McLachlan (1984), (ON SC), 18 CCC (3d) 478 at para 7 (Ont SC). [12] The Supreme Court of Canada, in R v Anthony-Cook, 2016 SCC 43, [2016] 2 SCR 204 [Anthony-Cook], laid out a newframework for sentencing judges to use in evaluating joint submissions made by counsel.

Joint submissions by counsel are to beaccepted unless doing so would “be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justicesystem” (Anthony-Cook, para. 42). The Court alternatively phrased the test as whether or not the proposed sentence “would bring theadministration of justice into disrepute, or would otherwise be contrary to the public interest” (Anthony-Cook, paras 5 and 32). [13] Giving the weight of a joint submission to counsels’ recommendation of a finding of long-term offender would in essencerequire the court to find Mr.

Roy a long-term offender unless such a finding was so contrary to the evidence that it “would bring theadministration of justice into disrepute, or would otherwise be contrary to the public interest”. The Code, on the other hand, gives methe power to find Mr.

Roy to be a long-term offender if and only if, inter alia, I find on the evidence there is a substantial risk that he willreoffend (s. 753.1(1)(b)), and that there is a reasonable possibility that such risk can eventually be controlled in the community (s.753.1(1)(c)). [14] There is clearly a contradiction in the tests between these two positions: under the Code, I have to make specific factualfindings before I have the power to designate Mr.

Roy a long-term offender; if Anthony-Cook applies, I must find him a long-termoffender unless doing so would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest. To view it in another way, under the Code Mr. Roy cannot be declared a long-term offender absent certain findings; under AnthonyCook, Mr. Roy must be declared a long-term offender absent certain findings. The only possible way these two tests are compatible is ifdesignating Mr. Roy a long-term offender without meeting the Code criteria would itself bring the administration of justice intodisrepute.

If so, however, the joint submission becomes irrelevant on this point: I would still be required to be satisfied on the Codecriteria regardless of the joint submission. [15] It follows, therefore, that a finding that Mr. Roy is a long-term offender cannot be the subject of an Anthony-Cook jointsubmission. [16] That is not to say that counsels’ positions are irrelevant or unhelpful. They are both experienced lawyers with a great deal ofknowledge and expertise in this precise area.

They have lived with this case and its voluminous evidence for literally years; they areintimately familiar with the law in this area; and they have presented reasoned arguments in favour of their conclusions, all of which Ihave found very helpful.

It is simply the case that their positions are persuasive, not binding. [17] As counsel pointed out, joint submissions are far from unprecedented in these types of applications: see, for example, R vKeepness, 2013 SKQB 441, 435 Sask R 119 [Keepness] (although it was decided several years before Anthony Cook, the test regardingthe joint submission was similar: see para 3). Defence counsel in his brief also made reference to several unreported Saskatchewancases, both before and after Anthony Cook, in which there were joint submissions in

Part XXIV proceedings (dangerous and long-termoffenders). As I indicated to counsel, I am aware of others, since I have also had

Part XXIV proceedings before me go by way of jointsubmission. The difference between those situations and the present one is this: so far as I have been able to determine, in none of thosesituations was the designation seriously in dispute (including Keepness, where at the Queen’s Bench level the Court conducted its ownanalysis of the evidence and concluded that the designation was warranted). In the case before me, however, the designation is verymuch in doubt.

Use of the accused’s s. 726 statement [18] Under s. 726 of the Code, a sentencing judge is required to give an accused an opportunity to speak before sentence is passed: 726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say. [19] It is clear that dangerous offender proceedings, and thus presumably long-term offender proceedings, are part of thesentencing process: R v Johnson, 2003 SCC 46, [2003] 2 SCR 357; R v Jones, (SCC), [1994]2 SCR 229 at paras 103 and106 [Jones]; R v Lyons, (SCC), [1987] 2 SCR 309 at para 71; R v Boutilier, 2017 SCC 64 at para 53, [2017] 2 SCR 936[Boutilier].

[20] As a result, at the end of hearing the submissions of counsel as to disposition, I asked Mr. Roy if he had anything he wanted tosay. He spoke for a period of time, rationally articulating very clearly a number of thoughts which seem to have been on his mind forsome time. [21] In my view, there is nothing preventing me from using Mr. Roy’s s. 726 statement in my determination of whether or not hemeets the requirements for a long-term offender order.

In Jones, the Supreme Court of Canada considered whether or not statementsmade by the offender to a psychologist and two psychiatrists during a dangerous-offender assessment violated s. 7 of the Charter. TheCourt adopted the pre-Charter reasoning of R v Wilband, (SCC), [1967] SCR 14 [Wilband], finding that such statementsviolated neither the rule against hearsay nor the rule requiring proof of voluntariness of an accused’s statement (Jones, paras. 103-106).

The Court drew a distinction between culpability proceedings and sentencing proceedings (para. 107), and held that those protectionsexist with respect to the former, but not the latter. Although both Jones and Wilband were dangerous-offender cases, I see no meaningfuldistinction in this regard between dangerous-offender and long-term offender proceedings. There is, of course, no bar to using aconvicted person’s s. 726 statement in determining an appropriate sentence. Indeed, it is difficult to conceive of any other reason for s.726 to exist.

It is commonplace for sentencing judges to consider an expression of remorse in such a statement as a mitigating factor, forexample, and indeed as being a more convincing statement of remorse than one simply expressed by defence counsel on the offender’sbehalf. Similarly, when an offender in their statement makes it clear that they do not in fact feel the remorse expressed on their behalf bydefence counsel, again the sentencing judge can take that into account in determining an appropriate sentence. Accordingly, I think itproper that I give Mr.

Roy his due, and consider his s. 726 statement as part of the determination of whether or not he meets the tests fordesignation as a long-term offender. [22] With surprising candour, Mr.

Roy stated that: 1. he does not want to be designated a long-term offender, but would rather remain in jail indefinitely; 2. “probably no” would be the answer to whether or not he could stay away from child pornography, despite having successfullyfought addictions to alcohol and drugs; 3. at least one reason for wanting to remain in custody is that the temptation to re-offend is less in custody than out of custody “andthat’s what I like.” While he stated that he wants “help”, he also stated, “even if I do these courses, I prefer to be in [jail]”; 4. he considers viewing child pornography to be “stress relief.” It was not clear if he meant by this stress relief generally, or if hemeant that viewing child pornography helped him cope with urges to offend physically against children; 5. even medication “will never deter” his urges to re-offend (I note that Mr.

Roy has been on libido-reducing drugs in the past, sohe speaks from a position of some experience); 6. in his opinion and expectation, if released at any point he will likely re-offend and be sent back to jail, which is in any eventwhere he would prefer to be. [23] These statements are obviously concerning in that Mr. Roy expects to re-offend, regardless of medication or programming,and the prospect of further jail time is not a deterrent; indeed, he welcomes it, and literally invites it.

His comments therefore go directlyto the question of whether or not there is a reasonable possibility of eventual control in the community. Mr. Roy is himself pessimistic,although obviously his attitude may change over the course of time and with the assistance of the programming which will be madeavailable to him. [24] It is important to understand that Mr. Roy gave every appearance of having thought through his position. His comments weredelivered calmly, rationally and in a matter-of-fact manner. They were not, as courts sometimes see, uttered in a spirit of defiance, a “doyour worst” spit in the face. Mr.

Roy appeared to be sincere in his remarks. [25] Underlying the supervision regime of

Part XXIV is the assumption that offenders wish to avoid prison. When they arereleased on conditions, the mechanism intended to make them comply with those conditions is that, should they fail to do so, they will bereturned to prison. Prison is intended to be a punishment, the threat of which keeps them from breaching their conditions.

Along withcomponents like programming (assuming the person takes it) and the possibility of “aging out” of offending, the threat of incarceration ispresumed to be an important part of the compliance plan. [26] If, however, the offender does not see prison as a punishment, then a significant piece of the compliance plan is missing. Ifthe offender, while in the community, does not fear returning to jail, or indeed actively welcomes it, it seems clear that the complianceplan is less likely to succeed.

[ 27 ] It is of course impossible to know whether Mr. Roy’s attitude to incarceration will change over the period he is going to be in custody for these offences. I note, however, that Mr. Roy has considerable experience with being in custody. His record indicates that he has been sentenced to custody in 2008 (18 months), 2009 (1 year), 2013 (6 months), 2014 (21 months) and 2018 (6 months). He has been in custody on the present charges since June 22, 2018. Clearly, Mr. Roy is no stranger to the inside of penal institutions.

Thus, when he indicates that he prefers to be in custody, and by implication that being in custody holds no terror for him, I can accept that he knows whereof he speaks. It would be the height of arrogance, not to mention paternalism, to suggest that I know better than Mr. Roy what his feelings are or will be toward incarceration. Of course, I have to assess what his attitude will be upon release, not just now, recognizing that his attitude might change between now and then. Again, however, I think that Mr.

Roy is well-placed to offer at least some insight into that matter. [ 28 ] I must, therefore, be concerned about the reasonable possibility that Mr. Roy’s risk can eventually be controlled in the community, even based simply on his own statements. He appears to have little motivation to comply with orders, and either a determination to reoffend or a fatalistic belief that he will, in fact, reoffend. He began his remarks by saying that he would like to obtain help; in light of all of his subsequent remarks, this opening statement seems rather pro forma - Mr.

Roy has been sentenced several times in the past, and may well have found that expressing a desire for help “plays well”. Certainly it was difficult to find any sincerity in that statement in light of both the content and manner of expression of the rest of his remarks. The assessor’s report and testimony [ 29 ] An assessment of Mr. Roy was prepared by Dr. T. Hook, a clinical psychologist, pursuant to s. 752.1(1). That

section reads as follows: 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1 , the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1. [ 30 ] Dr. Hook also testified at the hearing. Both her report and her testimony were detailed and thorough. Her conclusions were based on both her review of the extensive material regarding Mr. Roy which was exhibited in this hearing, and her interview process with Mr. Roy. [ 31 ] Dr. Hook’s interview process was affected by Mr. Roy’s refusal to participate after the initial four-hour interview, and his statement to her the next day: “everything I said yesterday was lies... I lied yesterday, all day.” After Dr.

Hook left, having heard him say that, she reported that she could hear him “laughing heartily”. In light of Mr. Roy’s statements, Dr. Hook concluded that he should be considered “an unreliable historian”, and that his personal history should be taken as reliable only to the extent that it is corroborated by independent sources. She did nonetheless have access to the records noted. As well, her interview with Mr. Roy seems to have given useful information, albeit in a different manner than she originally intended with her questions. [ 32 ] I do not intend to review here Dr.

Hook’s testimony as to the various tests she performed, or to detail her analysis of the information she reviewed. In my view, nothing would be gained by my doing so. I note that she took care to emphasize where the analytical tools used regarding Mr. Roy should be treated with caution, as with her discussion of the STABLE-2007, where she noted that his results should not be used in assessing Mr. Roy’s risk estimate since that tool had not been shown to be an accurate predictor specifically for Aboriginal persons (C-2, p. 48). [ 33 ] Some of the significant portions of her report (C-2) are as follows: - Mr.

Roy believes, or stated that he believes, that if a female makes physical contact with him, it is a sign that she is sexually interested in him. He believes this regardless of the age of the female. This remark was made in the context of a discussion about his niece, and how she once leaned on him and touched his leg (p. 4); - over the course of the past 12 years, whenever Mr. Roy has not been in custody, he has sought out images of children for his sexual gratification. “He actively works against efforts to manage his risk in order to gratify his sexual desires. There have been no indications that Mr.

Roy is genuinely interested in working towards reducing his level of risk or improving his ability to manage, in a safe and

healthy manner, his strong sexual attraction to female children” (p. 50); - he has a “complicated clinical presentation which includes FASD with its concomitant cognitive deficits, Antisocial Personality Disorder, and a prominent history of malingering and use of deception for both personal gratification and to evade responsibility for his actions” (p. 51); - “the prognosis for improvement with respect to reduction in risk is highly guarded” (p. 51); - “[t]he prognosis for improvement is further guarded given than [ sic ] Mr.

Roy has failed to demonstrate any lasting improvements or demonstrate any signification [ sic ] behavioural changes in spite of having participated in a wide range of treatment options” (p. 51); - “[r]eduction in risk via correctional treatment programs is unlikely for this individual” (p. 51); - “[a]ttempts have also been made to reduce Mr. Roy’s risk via pharmacological means ... It does not appear that these interventions have been effective and Mr. Roy actively obstructs these efforts by refusing medications or lying about his perceived response to them” (p. 51); - “attempts have been made to manage Mr.

Roy’s risk via intensive supervision while in the community . . . the highly restrictive conditions have not been adhered to by Mr Roy who continued to seek ways to gratify his sexual wishes and evade detection” (p. 51); - “if left unsupervised in the community, Mr. Roy remains at a high risk of engaging in sexual contact with a pre-pubescent female. Strict community supervision helps to manage his risk of contact with a live victim but leaves his risk of accessing child pornography unmanageably high” (p. 54); - “he is likely to remain a challenge to manage effectively in the community for the foreseeable future.

In the past, strict supervisory conditions have been effective in preventing contact sexual offending but not in preventing him from accessing child pornography. He has continued to be motivated to engage in this behaviour in spite of medication which lowers his sexual drive, in spite of the high levels of supervision, and in spite of having repeatedly suffered significant legal consequences” (p. 56). [ 34 ] Additionally, in her testimony Dr. Hook noted the following about Mr.

Roy: - he is “extreme” in his use of deception and untruth; this could make him difficult to manage and to engage in treatment, in that he may only pretend to participate, he may falsify medical conditions, and he may not be truthful about his thoughts and feelings; - if he is untruthful about mood and symptoms, then it will be difficult to medicate him appropriately; - he does not appear to be learning and applying treatment information; - her “prognosis for improvement through treatment is quite poor for Mr. Roy”; - treatment by libido-reducing drugs would be dependent on ensuring that Mr.

Roy actually complies with the medication regime, and on whether he is engaged in wanting to improve; - it is likely that he will hands-on re-offend with a child; - he believes that children want to have sex with him; - he likely will, and intends to, continue to seek out child pornography. It is possible that he uses this as a mechanism to avoid hands-on offending; it is also possible that child pornography fuels his desire for hands-on offending; - it is not possible to determine whether or not he will “age out” of his offending behaviour.

This phrase refers to the phenomenon in which offenders generally, as they grow older, tend to reduce or cease their criminal behaviour. Whether or not this would occur with Mr. Roy is unknown. If, by the time he is 60 years old, he is in the community and has not re-offended, then Dr. Hook would consider that his risk level has lowered from its current level. If he manages five years in the community without offending, again his risk would be considered lower.

If he managed ten years in the community without re-offending, statistically his risk of re-offending would be the same as that of the general population with no history of sex offending; - in “the ideal situation”, control in the community is “possible”. “It would be very challenging.” Asked by defence counsel about what treatment plan she would recommend if given unlimited resources (presumably the “ideal situation” she referred to), she listed the following (although it was clear that this was not a question she had previously considered, so a formal plan might well have additional components): - a full neuro-psychological and neurological assessment; - high-intensity in-patient treatment program by a team with knowledge of his cognitive issues, to continue until the facilitators of such program agree that he has internalized the program; - a consistent care team throughout his treatment, including a psychiatrist who treats both sex offenders and FASD, someone else who works with FASD patients, someone who works with sex offenders, a “legal supervisor” to perform residence checks and other supervision, residence in a group home where he would be supervised 24 hours a day, seven days a week, among other residents who are not involved in the justice system; and meaningful employment daily, to occupy his days.

[ 35 ] I note in passing that I received considerable information about the prospective programming, supervision and living arrangements that there might be for Mr. Roy, both while incarcerated and while on long-term supervision (if so determined). It is striking how more extensive Dr. Hook’s idealized care proposal is from what actually awaits Mr. Roy. I am not being critical of either Dr. Hook or those who will actually be dealing with him: Dr. Hook was asked about an ideal, financially-unlimited plan, whereas that is not the reality in which Mr. Roy will find himself, either in custody or out.

It is striking, however, that even with this plan, Dr. Hook would go no further than to say that control in the community would be “possible”. Given that this will not in fact be the plan that awaits Mr. Roy, her other comments about the prospects for control seem more apropos. Corrections Service of Canada [ 36 ] Mr. Roy has records with the Corrections Service of Canada (CSC) created during his federal incarceration from 2014 to 2017. As the present offences occurred in February 2018, the CSC information is very close in time to the offence date.

Some matters of note from that period are: - Nov. 5/14 (P-6, tab 6) - “Overall, ROY has consistently demonstrated extreme difficulty or a lack of motivation to follow conditions of release. He is quick to return to former behaviour patterns that are indicative of entering his offence cycle” (p.4); - Jan. 27/17 (P-6, tab 20) - although Mr.

Roy participated in the National Sex Offender Program - High Intensity, this report indicates that he struggled to apply its lessons. “Roy is not at the point where he can use these skills effectively” (p.5). “His motivation level at the onset of the program was high but dropped drastically as the group discussion became more intense and he felt ‘uncomfortable.’ His participation in group was less than adequate and he began to miss sessions due to ‘medical issues’ that were not corroborated by health care.” (p. 6).

The same report also notes that he had made some gains with respect to impulse control and problem-solving, albeit that the scope of these advances seems to have been very modest (p.7); - May 4/16 (P-6, tab 16) - the Parole Board of Canada’s decision on parole (also quoted by Dr. Hook at p. 51 of her report) stated in part (p. 6) (emphasis added): It is very clear that legal sanctions and periods of incarceration have had no impact on your offending behaviours and sexual preoccupation with children .

The Board assesses that your cognitive distortions that support your attractions to children and the viewing of child pornography have not been fully addressed . You have not completed sex offender programming and these issues and risk factors remain unaddressed during your sentence . As per the Psychological Risk Assessment, your risk to reoffend sexually against children is high and your risk has not been mitigated during this sentence. Despite being supervised and checked on regularly by the police you continued to reoffend as soon as people were not watching you and when given opportunity to do so.

You actively sought out access to child pornography within days of release. You also pursued the access of electronic devices and then concealed your illegal behaviour from police and supervision authorities. It is clear to the Board that based on this behaviour there are no known supervision programs or strategies that can manage the high degree of risk that you pose for sexual reoffending . - Feb 8/17 (P-6, tab 21) - regarding Mr. Roy’s aggressiveness and violence: “Mr. Roy has shown no improvement [regarding aggression and violence]; in fact noted deteriorations have been noted as of late” (p. 2); “Mr.

Roy is not very open to suggestions or encouragement of staff . . . Mr. Roy perceives himself as a victim and struggles with taking accountability for his behavior” (p. 3). He is criticized for his “spotty medication regime adherence” and responds that he did not know when his medications were or how the medication regime worked, “despite many months of coming for his medications at the appropriate time” (p. 4). Reference is made to his “lack of investment and engagement” in his sex offender programming and the “frequency and intensity of aggressive behaviors and reactions” (p. 4).

Reference is further made to his “rigid and negative attitudes and beliefs” and his current and past “inappropriate emotional outburst of aggression” that “have contributed to his offending behaviors” (p. 5) [ 37 ] Mr. Roy was transferred to the Regional Psychiatric Centre (RPC) while in federal custody for the purpose of taking programming; however, due in part to programming changes, the programming could not be completed before he left RPC. In some later reports this departure, which was not the fault of Mr.

Roy, is referred to as a failure on his part to complete this programming, and was taken into account in that manner by Dr. Hook. This mis-characterization is obviously something which I must take into account in assessing Mr. Roy’s treatment history and Dr. Hook’s opinions. However, there are also reports from 2017 indicating that he did not complete other programming due to “lack of engagement” (P-6, tab 21, p. 2) and “lack of attendance and low motivation” (P-6, tab 22, p. 2). Past programming [ 38 ] Mr. Roy has completed or attempted programming in the past.

In 2013 and 2014, under the supervision of Angie Pollom, he was unsuccessfully involved in sexual offender programming three times in the community. The first time, he was re-arrested; the second, he was suspended from the program for non-engagement, and the third time he was again re-arrested.

[ 39 ] While in federal custody after 2014, Mr. Roy again had an opportunity to take sex offender programming. He began that program, but ceased attending. It was eventually recommended that he serve to warrant expiry due to not having addressed his risk factors. Of course, following his release upon warrant expiry, he went on to commit further offences. [ 40 ] As noted above, one of Mr. Roy’s attempts at programming was frustrated by a change in the program being offered. This was mis-characterized as a failure on his part to complete it. This was, however, only one occasion: there were other occasions when Mr.

Roy ceased his engagement himself. [ 41 ] Even after the many attempts he has made at programming, and the offers of programming that have been made to him, the pre-sentence report still assesses that he “is considered to be in the pre-contemplation stage of change”. It further reports that “he does not believe he is in need of any interventions in this area [sexual offender treatment]” (p. 14). Given the need for engagement for programming to be successful, this is not encouraging. Future programming [ 42 ] It is difficult to predict what programs may be available for Mr. Roy when he is released from custody.

In the absence of other information, the best projection must be that the future will be like the present; emphasizing, however, the uncertain nature of that projection. [ 43 ] At present, it is anticipated that, while in custody Mr. Roy would have access to the ICPM Sex Offender Program. This program has replaced the previous program, which Mr. Roy was unable to complete. It is believed that the new program will be a better fit for offenders such as Mr. Roy. It has programs specific to sexual offenders and Aboriginal offenders. As a result, there is a hope that it will meet with more success with Mr.

Roy than has been the case with programs thus far. Once again, however, it is a voluntary program. The incentive for offenders to take it, aside from wanting to improve themselves and reduce their offending behaviours, is that doing or not doing the programs may make a difference to the Parole Board’s decision as to whether or not to release the offender before warrant expiry. As noted elsewhere in these reasons, the implicit assumption is that offenders do not wish to remain in jail. If that assumption is incorrect, as Mr.

Roy suggests it is in his case, then the enforcement mechanism is ineffectual. [ 44 ] Currently, someone in Mr. Roy’s circumstances would be dealt with upon release in much the same way regardless of whether they are on early release, statutory release or long-term supervision. They would be required to take sex-offender programming, unless they had already completed such a program in custody; if so, then they would be put into a “maintenance” program. Depending on their needs, they might be referred to other programs, such as Alcoholics Anonymous. There are Aboriginal-specific streams in some programming.

There is no programming specific to internet offending. Participation is mandatory, although once again ultimately enforced by the threat of re-incarceration. Past supervision in the community [ 45 ] Mr. Roy has been under supervision in the community for various periods. His record for compliance is not unblemished: - as part of his sentence for his initial sexual assault and sexual exploitation offences in 2008, he was on probation for three years. He breached in 2009, concurrent with his first child pornography possession; - in 2012 he was placed on a s. 810.1 recognizance, which he successfully completed.

He was placed on a further s. 810.1 recognizance in 2013, which he breached that same year; - in 2014, he was convicted of two breaches of his s. 810.1 recognizance and a breach of an undertaking. This was concurrent with his conviction for possession of child pornography; - in 2017, he was placed on a s. 810 recognizance, which he breached in 2018; - in 2018, he was placed on a s. 801.1 recognizance, which he breached by his present charge of possession of child pornography. [ 46 ] It is apparent that supervision, as it has been undertaken to date, has been unsuccessful in preventing Mr.

Roy from reoffending while in the community.

Gladue considerations [47] As noted above, the determination of whether or not a long-term offender designation is appropriate is a sentencing issue.

Section 718.2(

e) therefore applies: 718.2(

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [48] Sentencing courts have been given guidance in the

interpretation of this subsection in, inter alia, R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee]. The factors to be considered inapplying s. 718.2(

e) have therefore come to be known as “Gladue factors”. [49] In my view, s. 718.2(

e) applies to both the determination of the long-term offender application and to the term ofimprisonment to be imposed. At this point, I am only considering whether or not Mr. Roy should be designated a long-term offender. The Supreme Court of Canada in Boutilier affirmed that s. 718.2(

e) applies to dangerous-offender hearings; I see no basis for concludingthat the same reasoning would not apply to long-term offender applications. [50] Mr. Roy is of First Nations descent. His mother is Dene, and grew up on One Arrow First Nation. His father is fromBeardy’s and Okemasis First Nation. I have had the advantage of a pre-sentence report that goes into considerable detail about thehistory of both the Beardy’s and Okemasis and One Arrow First Nations respectively, and that also speaks of Mr. Roy’s familyspecifically. [51] There is a history of residential school involvement on Mr.

Roy’s father’s side, while his mother received no schooling at all. Mr. Roy was raised in foster care from about age three, and after about age six he was in a non-Aboriginal adopted home. He did notlearn about his traditional heritage. He is largely disconnected from both his biological and adoptive families. As a child, he reports, hesuffered physical, emotional and sexual abuse, and witnessed violence and substance abuse. He has lived most of his life in poverty. Asnoted in the Pre-Sentence Report (p. 13), “[i]t does appear that some of [Mr.

Roy’s] negative life experiences are tied to inter-generational trauma stemming from the experiences of his relatives in the residential school system.” [52] Additionally, I take note of what may be referred to as general Gladue considerations, or in other words considerations notspecific solely to Mr. Roy.

As stated in Ipeelee (para. 60): courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that historycontinues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse andsuicide, and of course higher levels of incarceration for Aboriginal peoples. (emphasis added) [53] The principles of Gladue, Ipeelee and Boutilier in non-Part XXIV sentences involve the question of moral responsibility, andwhether alternative sanctions or sentencing approaches might be appropriate: R v Slippery, 2015 SKCA 149 at paras 41 - 43, 472 Sask R181, citing Gladue and Ipeelee.

These issues are significant to the long-term offender question in part because of s. 752.1(1)(a). This isthe first criterion which must be met for a long-term offender designation to be applied. It requires that the court conclude that “it wouldbe appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted”.

The Gladue factors clearly are at play in making such a determination. [54] Additionally, Gladue factors can have an impact on the third criterion, namely whether or not there is a reasonable possibilityof eventual control of the risk in the community (s. 752.1(1)(c)). With respect to this criterion, Gladue in essence directs the court toconsider whether there is anything arising out of the offender’s background and circumstances which would have an impact on thereasonable likelihood of eventual control in the community.

This might, for example, take the form of evidence with respect to: (1) culture-specific programming available to the offender;

(2) controls, whether familial, cultural or otherwise, which might be in effect in the community when the offender is released; (3) the cultural context in which the offender will reside, both in custody and upon release, and the effects which that context might have on the offender. [ 55 ] With respect to s. 752.1(1)(a), the Crown and defence have jointly submitted that an appropriate sentence for Mr. Roy would be five years’ incarceration. Although I am not bound by that submission, it is telling that neither Crown nor defence suggest that anything close to the two-year cutoff in s. 752.1(1)(

a) would be appropriate. I agree. [ 56 ] With respect to the question of Gladue and s. 752.1(1)(c), I received information about cultural programming available to Mr. Roy both while incarcerated and after release. He previously had access to some of that programming during his various sentences. Programming while in custody is voluntary, and I cannot be certain what programming Mr. Roy would choose to undertake, or what programming he would complete. [ 57 ] I also received information about what would happen with him after his release, on supervision in the community.

At this point, there is no plan which involves release of Mr. Roy into circumstances in which either cultural context or community controls would be in effect specific to his Aboriginal status; that is, there is nothing in addition to, or other than, those applicable to any other person. Unlike programming while incarcerated, programming after release is not voluntary. Compliance is enforced ultimately by the threat of return to prison; a threat which, as noted elsewhere in these reasons, may not be compelling for Mr. Roy. [ 58 ] It is not surprising that there is no release plan at this point, of course.

Any prospective release for Mr. Roy, whether by parole or under long-term supervision, is years away. I am accordingly not being critical of the fact that no such plan has been put forward. Rather, in the context of incorporating Gladue into the long-term offender application, I simply note that there is nothing on which I can find that there are cultural or community factors related to Mr. Roy’s Aboriginal heritage that would tend to make him more amenable to control in the community as a long-term offender.

For some people, there might well be a culture, family situation or other matrix into which they are likely to fit upon release. The likely effects of that context on control in the community must form part of the assessment of the likelihood of eventual control. There is no information before me about any such matrix or context regarding Mr. Roy. [ 59 ] Mr. Roy has substantially no connection with any of his family, so the prospect of any such assistance with his control in the community must be seen as slight. [ 60 ] It is encouraging to note that Mr.

Roy has expressed an interest in connecting with some cultural experiences, including sweats and smudging. It is possible that some of his time in prison may be spent at the White Buffalo Healing Lodge, although he would have to apply to be moved there. I do not know whether or not he may choose to do so. Should Mr. Roy be declared a long-term offender? [ 61 ] There are three criteria under s. 753.1(1) which must be satisfied in order to declare someone to be a long-term offender. Those are: (

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

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

c) there is a reasonable possibility of eventual control of the risk in the community. [ 62 ] In light of Mr. Roy’s record and all of the other factors referred to in this decision, and taking into account that the joint submission of counsel in this regard is for a sentence of imprisonment of five years, (

a) is satisfied: I will be sentencing Mr. Roy to a term of imprisonment of at least two years’ duration. [ 63 ] With respect to (b), s. 753.1(2) directs me to find this criterion satisfied if the offender has been convicted of, inter alia , possession of child pornography. As that is one of the offences for which I am currently sentencing Mr. Roy, and he has two prior convictions on his record, this criterion has also been met.

[ 64 ] The third criterion is whether or not there is a reasonable possibility of eventual control in the community of the risk which Mr. Roy poses. I will first consider the risk which Mr. Roy poses, and then consider whether or not there is a reasonable possibility of eventual control of that risk in the community. (

i) risk of future harm [ 65 ] Analyzing and managing risk has two components: the magnitude or type of harm anticipated, and the likelihood of that harm occurring. In Mr. Roy’s case, the type of harm is two-fold: (1) that he will once again download and view child pornography; (2) that he will offend in a “hands-on” way; that is, that he will sexually assault a child. (i)(

a) type of harm - child pornography [ 66 ] With respect to the prospect of Mr. Roy downloading and viewing child pornography in the future, it is instructive to note his record. As noted earlier, he now has a total of three offences of viewing child pornography; additionally, he has on four separate occasions breached conditions including conditions intended to prevent him from obtaining child pornography. A paragraph from the report of Dr. Hook is instructive (p. 50): Following his first offence, Mr.

Roy has been consistently under some form of legal supervision over the past 12 years whenever placed in the community. In spite of this, and in spite of repeated participation in sexual offender treatment, Mr. Roy has continued to seek out images of children for sexual gratification. He actively works against efforts to manage his risk in order to gratify his sexual desires. There has been no indication that Mr. Roy is genuinely interested in working towards reducing his level of risk or improving his ability to manage, in a safe and healthy manner, his strong sexual attraction to female children. [ 67 ] Mr.

Roy has expressed to various interviewers, over a number of years, the idea that his viewing of child pornography is harmless. The hands-on offence of sexual assault on the child has already occurred, and even the simultaneous offence of recording that assault is already complete, long before he downloads and views that piece of child pornography. The harm, in essence, has already occurred. Unfortunately, this is a view which appears repeatedly in child-pornography cases, and which courts have repeatedly addressed.

It is simply untrue. [ 68 ] The Supreme Court of Canada referred to the harm of viewing child pornography in R v Morelli , 2010 SCC 8 at para 8 , [2010] 1 SCR 253 by reference to it increasing the demand for such content. The Court referred more specifically to the harm on the individual child victims in R v Sharpe , 2001 SCC 2 at para 92 , [2001] 1 SCR 45 [ Sharpe ]: Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves.

The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade.

Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone. [ 69 ] As shown in this excerpt, the Supreme Court has accepted the causal dynamic between viewing child pornography and ongoing child abuse: demand fuels supply, and viewers of child pornography by that act alone encourage the creation of more child pornography and the horrific abuse that child victims suffer as a result. In other words, simply by seeking out and viewing child pornography, Mr.

Roy was causing new suffering to new victims. I made reference to this harm in R v Stupnikoff , 2013 SKPC 57 at para 14 , 416 Sask R 307: To put the matter in more concrete terms, because of the accused and people like him there are almost certainly children, including infants, toddlers, and babies, somewhere in the world, right this instant, being raped. At the very moment that you, the reader, are reading this, unspeakable horrors, which will scar these children physically and mentally for life, are being visited upon them for the pleasure of Darrel Stupnikoff and others like him.

The bodies of these children are too small to accept the adult erections, or other items, being forced into them. The flesh of these children is being torn apart, their blood is being spilt, because Mr. Stupnikoff and his ilk enjoy watching it.

[ 70 ] The societal harm of the very existence of child pornography, which of course Mr. Roy perpetuated, is referred to in the minority opinion in Sharpe (para 158 ): The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code , is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children.

The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children.

It preys on preexisting inequalities. [ 71 ] Additionally, the harm done to the specific victim when a person views their sexual abuse has been made explicit by some victims. [ 72 ] In R v Kwok , [2007] CanLii 2942 (Ont Sup Ct) [ Kwok ], Justice Molloy quoted a statement made by one of the victims whose abuse had been photographed and was in the accused’s collection.

Her statement, to the extent that it is reproduced in Kwok (para 51), bears repeating in its entirety for its vivid description of the harm done by persons viewing child pornography: The absolute worse (sic) thing about everything that happened to me was that Matthew [her abuser] put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of a little girl being abused in this way? . . . I know that these pictures will never end and that my "virtual abuse" will go on forever. Usually when someone is raped and abused, the abuse ends.

But since Matthew put those pictures on the Internet, my abuse is still going on. Anyone can see them. People ask for them and are downloading them. Day after day. People want to see me abused. I want every single person who downloads my picture to go to jail and be really punished as much as possible. They are as evil as Matthew. They want to see me suffer. They want to see me starved and hurt and sad and abused. Child pornography is not a victimless crime.

I am a victim and I still suffer everyday and every time someone sees me being abused. [ 73 ] The Crown in the present proceedings filed what was labeled as a transcript of a video victim impact statement from a person identified as “Vicki”. This document was, according to the information supplied with it, prepared by the Canadian Centre for Child Protection from a statement recorded January 27, 2016. The supporting material offers to supply on request a sworn affidavit regarding the creation of the statement, if required, as well as a copy of the videotaped statement itself.

Although I have no other information about the veracity of the transcript, or the statements made it in, defence consented to the document becoming an exhibit. I assume accordingly that Crown and defence are both satisfied with the provenance of this document, and I accept it on that basis.

Although the transcript is long, I think it is worth quoting extensively as it speaks directly, and from the perspective of a victim, of the harm done by the viewing of child pornography: I live everyday [ sic ] with the horrible knowledge that many people somewhere are watching the most terrifying moments of my life, and taking grotesque pleasure in them. I am a victim of the worst kind of exploitation: child porn. Unlike other forms of exploitation, this one is never-ending. Every day people are trading and sharing videos of me as a little girl being raped in the most sadistic ways.

They don’t know me, but they’ve seen every part of me. They are being entertained by my shame and pain. The world came crashing down the day that I learned that pictures of me being sexually abused had been circulated on the Internet. Since then, little has changed except my understanding that the distribution of these pictures grows bigger and bigger by the day - and there is nothing I can do about it. The enormity of this has added to my grief and pain, and given me paranoia. I wonder if the people I know have seen these images. I wonder if men I pass in the grocery store have seen them.

I feel totally out of control. They are trading around my trauma like treats at a party - and it feels like I am being raped all over again by every one of them. It sickens me to the core, terrifies me and makes me want to cry. So many nights I have cried myself to sleep thinking of a stranger somewhere staring at their computer with images of a naked me on the screen. I have nightmares about it often. I can never feel safe so long as my images are out there. Every time they’re downloaded I am exploited again, my privacy is breached and I feel in danger again.

I fear that any of them may try to find me and do something to me. I have the right to know who has my pictures and who is trading them. While it hurts to know, not knowing makes me feel more in danger. To be criticized for wanting to know what is going on with the humiliating pictures of me - and to exercise the few rights that I have under the law - only makes the hurt that much worse.

How can such people not understand or care? I am justified in my paranoia - some of these perverts have contacted me. I have received emails suggesting making porn with these strangers. One has stalked me and another created a slideshow of me on YouTube. As I go on with my life, the effects of these crimes still hurt me, and I hope the court and everyone involved will understand this and how serious it is. While the abuse from my biological father was awful, as time goes on, that is farther and farther away from me. He’s in jail and can never hurt me, and that is over.

The men that download my pictures are all around me for all I know, and it will keep going on forever. I have no control over it at all. This is frightening beyond belief. I still have nightmares that come from knowing that pictures of me are spread around on the Internet by people with perverted interests in my pain. I have panic attacks and flashbacks. I can’t sleep a lot of nights - no matter how early I go to bed, how early I wake up in the morning - even if I have barely slept for days and I am exhausted, sleep doesn’t come easy for me.

I take afternoon naps just to function, but something about the nighttime puts my mind on alert, and after all these years and going to different counselors, I still haven’t learned the trick to let my mind rest... Getting through college was a struggle because of my PTSD, and I had to quit and take a break on two different occasions due to my paranoia and anxiety. I was worried that my fellow students may have seen the videos ...

The paranoia of knowing that people are viewing these videos of me adds a type of backburner stress to my life that is constantly brought to the front of my mind again and again by unexpected situations - and it still throws me for a loop... I also have a constant fear for my children’s safety as pedophiles have continued to stalk me over social media and have hacked into my Facebook and Instagram account to steal pictures of what I look like now to post on their own anonymous forums.

They successfully discovered and posted on one of those forums a former address of ours, so we moved and I shut down my social media accounts. This was a loss for me because it limits me socially. It also made me feel incredibly violated and sick to my stomach for weeks. I fear what would happen if they did find out where we live or got a hold [ sic ] of pictures or information about my children considering the efforts that some have gone to as they’ve continued to stalk me online...

I want you to know that dealing with the effects of the stress of random men looking at pictures of my sex abuse as a child is like a fulltime job, and it wears me down and colours every aspect of my life. (i)(

b) type of harm - hands-on sexual offending against a child [ 74 ] Unlike possession of child pornography, the harm of hands-on sexual offending against a child is obvious and should not require any further explanation. (ii) likelihood of harm eventuating [ 75 ] I note that this part of the analysis under s. 753.1(1)(c), no determination is being made about the possibility of eventual control; this step is simply about quantifying the risk which has to be managed - in other words, the risk in the absence of control. [ 76 ] In light of the conclusions from Dr. Hook, and the substantial lack of progress made by Mr.

Roy in addressing (or failing to address) his risk factors through programming, in addition to his own very candid remarks in court, it is clear that there is a very high risk that the harm of further viewing of child pornography will eventuate. His record also bears this out, both in the number of child- pornography offences and their timing: at least since 2013, Mr. Roy has not waited very long between when he might be able to access child pornography and actually doing so. [ 77 ] As identified by Dr. Hook, it is possible that Mr.

Roy has been consuming child pornography as a way of managing his desire for hands-on sexual offending against children; it is also possible, according to her, that his consumption of child pornography has been increasing such desires. There is no definitive determination as to which. Managing (i.e. preventing) his viewing of child pornography may therefore either increase or decrease this risk. There is no evidence as to which it may be. [ 78 ] In the 12 years since his hands-on offences, Mr. Roy has not committed any further hands-on sexual offending. Obviously, this is good and to his credit.

He has also been convicted three times of possession of child pornography during that interval, however. This 12-year interval therefore does not offer evidence one way or the other as to whether removal of child pornography will increase or decrease his inclination toward hands-on offending. For a substantial amount of this 12-year period, he was incarcerated and not in a position to offend in this way in any event. The same can be true of his possession of child pornography; but upon release, he has repeatedly been convicted of new child-pornography possession offences, although not of any hands-on offences.

[ 79 ] Similarly, Dr. Hook was unable to say whether or not Mr. Roy would age out of any inclination toward hands-on offending. There are certain statistical probabilities, depending on Mr. Roy’s future actions, but at this point there is simply no telling. [ 80 ] In the absence of more definitive evidence, I would assess the risk of hands-on offending to be low to medium. Removal of access to child pornography may increase or decrease Mr. Roy’s desires in this area, but he should receive credit for not having offended hands-on for 12 years. However, the risk of him viewing child pornography is very high. (iii) reasonable possibility of eventual control [ 81 ]

Section 753.1(1)(

c) does not speak of certainties, nor does it require control be established now. As our Court of Appeal pointed out in R v Badger , 2012 SKCA 119 at para 59 , 405 Sask R 97, the question is one of a “reasonable possibility [of control] . . . in time and as the result of a process, which is to say by means of the imposition of a long-term offender sentence”. This entails a recognition that the term of imprisonment can both (

a) have a deterrent effect with respect to future conduct, and (

b) result in rehabilitative changes even before the offender is released onto supervision; additionally, of course, the period of supervision can also have both deterrent and rehabilitative effects which must be taken into account (see R v Lemaigre , 2004 SKCA 12 , at para 39 , 241 Sask R 187 [ Lemaigre ]).

Necessarily, this means that the reasonable possibility of control does not have to be in place at the beginning of the period of community supervision; that is, the legislation accepts release of offenders into the community while there is no reasonable possibility of control at the time of their release. [ 82 ] The Ontario Court of Appeal has suggested that the time frame within which control is to be assessed is the term of the supervision, that is, a maximum of 10 years: R v B(DV) , 2010 ONCA 291 , 100 O.R. (3d) 736 [ B(DV) ].

The contrary view, which is binding on me, was expressed by the Saskatchewan Court of Appeal in R v Goforth , 2007 SKCA 144 , 302 Sask R 265. That decision addressed what constitutes a “reasonable possibility of control”. The Court of Appeal determined that it must “involve something more than hope or empty conjecture.

In and of itself, the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of reoffending.”(para. 54) The question is “whether it is reasonable to conclude [the offender] will make that progress within the period of time comprehended by an appropriate determinate sentence .” (para. 65) (emphasis added) The Court further clarified this position with respect to Mr.

Goforth specifically (para. 66): “[t]he record as a whole does not warrant a conclusion that, within the time frame of an appropriate term of imprisonment , there is a reasonable possibility of eventually controlling Mr. Goforth's risk to reoffend within the meaning of s. 753.1(1)(c).” (emphasis added) This is a clear statement that the reasonable possibility of eventual control must be expected to manifest by the end of the term of imprisonment.

I note that the B(DV) position necessarily assumes that an offender may be released into the community notwithstanding that there is no reasonable prospect that the risk that the offender poses is, at that time, controlled. [ 83 ] In the event that I am wrong about the time frame within which eventual control is to be evaluated, I will consider both in- custody and post-custody prospects for Mr. Roy. [ 84 ] In Mr.

Roy’s case, the question of what programming is available, both in and out of custody, is unavoidably entangled with the question of what programming he will avail himself of, both in and out of custody. His history is not good in this regard - albeit not as bad as Dr. Hook believed it to be, given that Mr. Roy was not able to take one course due to timing. His performance on other courses has not been entirely encouraging.

While in custody, his only incentive to take programs will be in order to (perhaps) get released early; out of custody, his incentive to take programs will be the threat of a return to jail should he refuse. He says, and I accept, that remaining in jail is in fact his preferred outcome. Whether or not that would still be the case at the end of his incarceration, and throughout the term of his supervision, is unknowable.

Lemaigre points out that being in custody can change a person’s mind about whether or not they wish to go back to jail; indeed, the deterrent effect of imprisonment is one of its purposes (see s. 718(b)). On the other hand, Mr.

Roy has spent a considerable amount of time imprisoned, both in federal and provincial institutions: at the time he told me that he wished to stay in jail, he had been in custody, between his sentence in 2018 and remand on the current charges, for well over two years; just prior to that, he had served a 42-month sentence to warrant expiry; as his record shows, he has spent considerable other time in custody as well. Mr. Roy has a very clear understanding of what being in federal or provincial custody is like. Furthermore, when he made his statements in court, he was not defiant or bombastic.

He was somewhat matter-of-fact about his desire to remain in jail, and his anticipation of committing further offences if released. [ 85 ] His in-court comments were of course not available to Dr. Hook, as they came after both her report and her testimony. Even without them, however, Dr. Hook’s evidence is highly negative with respect to Mr. Roy’s prospects for control in the community. I have quoted from her evidence elsewhere in these reasons; her evidence was extensive, exhaustive and almost uniformly unencouraging.

The best that she would say is that, under ideal circumstances, control in the community would be “possible” but “very challenging”. As was shown by the contrast between her ideal circumstances, in the “resources are no object” scenario, and the actual circumstances which Mr. Roy will encounter in the community, as noted by the corrections witnesses, Mr. Roy’s supervision will be a far cry from even this “possible but very challenging” situation.

[ 86 ] Of course, if the test is reasonable prospect of control as of release from imprisonment, the prospects are even more bleak for Mr. Roy. Conclusion [ 87 ] Taking all of the above into consideration, I conclude that it is not reasonable to expect that Mr. Roy will be controllable in the community by the end of any period of supervision which I can legally impose, let alone at the time of release from imprisonment. There is no credible evidence that he even wants to reach such an outcome, let alone that he is willing to work toward it.

While his attitude might change, he has had ample opportunity to learn what both the federal and provincial systems have in store for him, both in custody and out. He has experienced programming, and has both failed to learn from it and actively chosen not to learn. He says, and I believe, that jail not only has no terror for him, it is his preferred outcome. It is, in essence, a coin-toss as to whether he will age out of his offending behaviour.

The risk that is being managed is significant: both re-victimization of children portrayed in pornography, and actual hands-on sexual offending against children. [ 88 ] Accordingly, I find that Mr. Roy does not meet the requirements of s. 753.1(1) to be designated a long-term offender, and in particular he does not meet s. 753.1(1)(c). Counsel requested to be allowed to speak further to disposition in the event that I reached this conclusion, and accordingly I will hear further submissions as to the appropriate sentence for Mr. Roy. ___________________ Q.D. Agnew, J