2020 QCCQ 1137, 2020 QCCQ 1137

Translated from the original French R. c. G.L. 2020 QCCQ 1137 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL LOCALITY OF LAVAL “Criminal and Penal Division” No.: 540-01-082207-179 DATE: March 6, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CIMON, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. G... L...

Accused ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR FINDING THAT THE ACCUSED IS A DANGEROUS OFFENDER AND ON SENTENCING [1] ______________________________________________________________________ [ 1 ] The accused was found to be a long-term sex offender in September 2001.

In December 2017, he reoffended when he performed fellatio on X, a 4-year old child. [ 2 ] On January 30, 2019, he pleaded guilty to one count of sexual interference [2] with a person under the age of 16 years and four counts of failure to comply with long-term supervision. [3] [ 3 ] The prosecution established that the accused has many previous convictions, including three sex offences, and that the offence of sexual interference at first glance meets the definition of a “serious personal injury offence”. [4] An order [5] was therefore granted under s. 752.1 of the Criminal Code remanding the accused for assessment to obtain a forensic report. [6] On April 16, 2019, psychiatrist Dr.

Louis Morissette of the Institut Philippe Pinel produced the requested assessment. POSITIONS OF THE PARTIES [ 4 ] The prosecution asks for a finding that the accused is a dangerous offender under ss. 753(1) ( a )(

i) and (ii) of the Criminal Code [7] and asks the Court to sentence the accused to detention in a penitentiary for an indeterminate period . [ 5 ] The accused argues that the prosecution has not discharged its burden to find him to be a dangerous offender. In this regard, he notes that many treatments are still available to him, meaning that his violent behaviour is not intractable.

Furthermore, he claims that he satisfies the test to be found a long-term offender. [8] He states that he had not committed any sex offence for over 15 years and that the expert Morissette is of the opinion that he is an [ translation ] “assumable” risk for the community. The accused submits that the Court should sentence him to approximately 5 years of imprisonment followed by 10 years of long-term supervision.

ISSUES [ 6 ] Is the offence of sexual interference a “serious personal injury offence” within the meaning of s. 752 of the Criminal Code ? [ 7 ] Does the accused’s behaviour form part of a pattern of behaviour within the meaning of ss. 753(1) ( a )(

i) and (ii) of the Criminal Code ? [ 8 ] Has the accused shown a failure to restrain his behaviour or a substantial degree of indifference respecting the reasonably foreseeable consequences of his behaviour? [ 9 ] Is there a likelihood that the accused will inflict severe psychological damage on other persons? [ 10 ] If the Court finds the accused to be a dangerous offender, should it sentence him for an indeterminate period?

EVIDENCE IN SUPPORT OF THE APPLICATION [ 11 ] At the start of the hearing, the parties agreed to a series of admissions, in particular on the filing of the following documents as proof of their contents: • The accused’s provincial prison record; • The accused’s federal prison record; • Decisions of the Commission québécoise des libérations conditionnelles; • Decisions of the National Parole Board (“NPB”); • Documents prepared by Ms. Lebrock-Viau, Correctional Service of Canada (“CSC”); • Seven written witness statements; • The accused’s criminal record; • The quality and relevance of Dr.

Louis Morissette’s expert evidence. [ 12 ] The following people also testified during the hearing on the application: N. M. (X’s mother), Ninon Hétu, Dr. Louis Morissette, and the accused. 1. THE ACCUSED’S PROFILE [9] [ 13 ] The accused is 55 years old. He comes from a family of three children, and he lived with his parents until the end of his adolescence. He was sexually abused around the age of 6 when a neighbour performed fellatio on him several times after using gifts to lure him to his home. In early adulthood, the accused started to inject cocaine rather intensively.

In terms of romantic relationships, the accused never married but has had several sexual partners during his life. More specifically, he had three significant romantic relationships with women, one of which, with M. R., lasted over 10 years. [ 14 ] In terms of education, the accused completed the equivalent of Secondary IV but was expelled from high school following a fight. He is specialized as a metal roofer and worked in that field for 30 years. [ 15 ] He had been living alone in an apartment in A since June 14, 2017. He worked for company A in 2017. He did not inform his employer of his status.

He started working for company B in October 2017 at a salary of $35 an hour. [ 16 ] Other than his mother, the accused has no social network to help him re-establish himself. His father is dead, and his brother and sister have had no contact with him for years because of his convictions for sex offences. 2. CRIMINAL RECORD [ 17 ] The accused’s criminal record began in 1983, when he was 19 years old.

He was convicted of the following offences and breaches: [10] YEAR OFFENCE SENTENCE 1983-10-03 Breaking and entering Suspended sentence 3 years’ probation 1985-02-18 Breaking and entering 3 months 3 years’ probation Breach of probation 1 month, consecutive 1989-10-25 Theft with violence 4 years Robbery (2 files) 4 years, concurrent Breach of recognizance 1 month, concurrent 1990-12-10 Robbery 3 months, consecutive 1994-12-09 Sexual assault 2 years less 1 day 2 years’ probation Breach of recognizance 1 month, concurrent 3 years’ probation Breach of recognizance (2 files) 15 days Uttering threats (3 files) 1 month 2001-09-04 Sexual interference 15 months

Invitation to sexual touching 15 months, concurrent Long - term offender designation Long-term supervision order (“LTSO”) for 10 years 2002-07-04 (2/3 release from Bordeaux) Beginning of LTSO 2002-08-09 LTSO suspended due to lack of cooperation and unauthorized travel 2002-12-17 LTSO suspended due to a positive urine analysis for THC 2003-04-22 Breach - LTSO (2 files) 8 months 2003-09-30 Statutory release 2003-11-11 Statutory release (“SR”) suspended due to suspected alcohol consumption. 2004-01-07 LTSO suspended due to breach of condition not to consume alcohol 2004-07-05 Breach - LTSO 10 months (3 months’ presentence custody) 2005-01-21 Statutory release 2005-09-21 LTSO suspended due to breach of condition not to consume alcohol 2006-01-27 Breach - LTSO (2 files) 14 months (45 days’ presentence custody) 2006-11-03 Statutory release 2006-11-26 SR suspended due to breach of condition not to consume alcohol 2007-02-15 Contravention of SR Re-incarcerated 2007-02-16 Statutory release 2007-03-20 SR suspended due to suspected alcohol consumption 2007-08-09 LTSO suspended due to breach of condition not to consume alcohol 2007-10-15 Breach - LTSO (2 files) 17 months and 10 days (10 days’ presentence custody) 2007-10-19 Impaired driving $1,100 fine 1 year’s prohibition on operating a motor vehicle 2008-09-29 Statutory release 2010-01-27 SR suspended due to suspected alcohol consumption and being unlawfully at large for 11 days 2010-12-07 Breach - LTSO 4 months (14 months’ presentence custody) 2011-02-24 Statutory release 2011-03-11 SR suspended due to breach of condition not to consume alcohol 2011-07-25 LTSO suspended due to suspected alcohol consumption and being unlawfully at large for 17 days 2011-11-07 Breach - LTSO (2 files) 2 years 2013-03-07 Statutory release 2013-09-17 SR suspended due to breach of condition not to consume alcohol 2013-12-02 LTSO suspended due to breach of condition not to consume alcohol 2014-04-16 Breach - LTSO 5 months 2014-07-25 Statutory release

2015-12-04 Operating a motor vehicle with over 80 mg of alcohol 3 months’ intermittent 3 years’ prohibition on operating a motor vehicle 2015-12-14 LTSO suspended due to breach of condition not to consume alcohol 2016-04-02 LTSO suspended due to his attitude to personnel following confinement for failing to report for a urine test 2016-04-30 LTSO suspended due to breach of condition not to consume alcohol 2016-10-18 Breach - LTSO 2 months (4 months’ presentence custody) [ 18 ] The accused has been convicted 12 times since July 2002 for breach of his LTSO, which has furthermore been suspended 16 times.

Due to the accused’s behaviour, the end of his long-term supervision period was extended from July 3, 2012, to August 10, 2019. Additionally, since the accused’s supervision began, he spent 65% of his time in custody and only 35% of the time in the community. 3. FACTS CONCERNING THE PREDICATE OFFENCE [11] [ 19 ] K. T. and his spouse N. M. have three children: a young boy X (4 years old) and two young girls, Y (3 years old) and Z (1 year old). The accused became friends with the family. He lives in the same apartment block as X’s paternal grandmother and aunt. The accused befriended K. T. and N.

M.’s family soon after moving into the building. The accused never spoke of this couple to his supervisor. [ 20 ] On December 28, 2017, K. T. and N. M. visited the accused. During the evening, they discussed bringing X to his aunt’s apartment so she could babysit him for the night. The accused then offered to babysit X at his apartment. The parents accepted the offer because they trusted the accused. He was himself a father and their children liked him a lot.

The couple left the apartment around 12:30 a.m., leaving X in the accused’s care and supervision. [ 21 ] X’s aunt went outside to smoke a cigarette around 2:10 a.m. At some point, she leaned over to look inside the accused’s apartment, whose windows had no curtains. She saw a large mattress on the floor in the middle of the room. The accused was laying on the right side, completely naked. X, also naked, was laying on his back next to him. The television was on in front of them. The accused’s head was then positioned at X’s genitals and was moving back and forth.

The aunt raced to find X’s grandmother and they immediately went to the accused’s apartment. When he opened the door, the accused was bare-chested and wearing only sweatpants. The grandmother observed that the accused had an erection. She said that she had come to pick up X, who entered from the living room completely naked and appeared ashamed. [ 22 ] The accused never informed K. T. or N. M. of his criminal record, in particular his sex offences, or his supervision conditions. Moreover, the accused never obtained prior written authorization from his supervisor or informed him of his friendship with K.

T. and his family. K. T. and N. M. also said that the accused had previously asked if he could babysit one of their children but that they had always refused. 4.

FACTS CONCERNING THE FAILURES TO COMPLY WITH THE LTSO [ 23 ] The accused pleaded guilty to two counts of failure to comply with the condition not to be in the presence of boys or girls under the age of 18 years unless accompanied by a responsible adult aware of his criminal record and with the prior written authorization of his parole supervisor. [ 24 ] In addition to the incident with X that occurred on December 28, 2017, the other offence is based on the following facts. [12] [ 25 ] The accused and K. V., a work colleague, had known each other for approximately three years.

Over time, the accused became friends with K. V. and his family. K. V. and his spouse V. P. have two young girls: A (4 years old) and B (1 year old). [ 26 ] In early December 2017, K. V. and his family visited the accused at his apartment. At some point, little A sat on the accused’s knees. [ 27 ] Approximately one week before Christmas 2017, the accused went to K.V.’s home. K. V. wanted to invite him for Christmas dinner and told him he could sleep in the guest bedroom.

The accused, while stroking A’s hair, replied that he could let someone else have the room instead and that he could sleep with [ translation ] “his little princess”. [ 28 ] Including these two incidents, the accused was in the presence of A approximately 10 times. At no time did the accused inform K. V. or V. P. of his criminal record, in particular the sex offences, or his supervision conditions. Moreover, the accused never obtained written authorization from his supervisor or even informed him of his friendship with K.

V. and his family. [ 29 ] The accused pleaded guilty to breaching his condition not to consume alcohol or drugs between January 18 and December 23, 2017. When the accused pleaded guilty, he acknowledged that he regularly drank alcohol at work and smoked marijuana. K. V. said that the accused drank alcohol almost all of the time. [13] Similarly, V. P. said that the accused was already drunk at noon on December 4, 2017. She said that the accused was in the habit of drinking after waking up. She added that every time she met him, the accused was drinking alcohol and that he also used “pot”. [14] 5.

FACTS RELATED TO THE PREVIOUS SEX OFFENCES [15] [ 30 ] The accused met M. R. in 1991. The couple moved in together after dating for approximately one year. M. R. already had two

children from a first relationship; a boy and a girl named C. The couple had a boy, D., in [...] 1993. [ 31 ] In 1994, the accused made C, 6 years old at the time, perform fellatio on him. The accused said that it was an isolated incident and was not premeditated. This incident left C with major sequelae and she required professional treatment. [ 32 ] In December 1999, the couple was having problems and the accused asked M. R. for permission to spend time with his son. M. R. agreed, and on December 9, 1999, the accused was looking after D, 6 years old, alone.

During the evening, while the accused and D were taking their bath, he asked his son to perform fellatio on him. The boy refused. Later, when the accused and D were naked in front of the television, the accused again asked him to perform fellatio on him. D ended up doing so and the father performed fellatio on his son as well. The next day, D told his mother about the incident. The accused said that nothing was premeditated and that he did not understand why he acted this way. He then blamed it on the fact that he was intoxicated [16] and depressed.

At the time of the assault, the accused was living alone in an apartment. M. R. said that the assault left D with major sequelae and that he had to see a child psychiatrist. 6. EARLIER TREATMENT, REPORTS, AND ASSESSMENTS [17] [ 33 ] In 1990, the accused consulted psychologist Gosselin for six months. The report dated November 18, 1991, stated that the accused’s participation was questionable, particularly because he had difficulty getting motivated to attend sessions regularly.

During the same period, the accused successfully completed a residential drug treatment program at Maison Job for his cocaine addiction. [ 34 ] In December 1990, the accused completed a two-month residential program at Maison Jeun’Aide after assaulting a guard at a community correctional centre and attempting to steal syringes. [ 35 ] In October 1994, a presentence report stated that the accused had always lived marginally, had questionable friends, and abused drugs. It said that the accused had spent time in various substance abuse treatment centres without really remaining sober for long periods.

Suzanne Lamy, the probation officer, said that for a long time the accused denied abusing M. R.’s daughter. When he finally acknowledged the facts, the accused displayed no emotion, regrets, or, in particular, empathy for the victim. At the time, M. R. lost custody of her daughter because she believed the accused’s denial. The probation officer also said that the accused did not appear to believe that he was deviant and refused to start therapy. [ 36 ] Ms. Lamy concluded her report by noting that: [ translation ] The offender is aggressive, manipulative, and resists any form of authority.

He wants to do as he pleases, when he pleases, and believes that he owes nothing to anyone. He will not hesitate to become threatening when faced with frustrations. His antisocial personality is characterized by insensitivity to the feelings of others and an aggressiveness that he has trouble controlling and that is exacerbated by the slightest annoyance. He is quick to blame others and holds them responsible for his problems. His prognosis is very poor based on his current attitude to therapy, his severe sadistic-aggressive personality disorders, and the results of his penile plethysmography.

Given the foregoing, there is a high risk that G. L. will again commit violent physical or sexual acts against other people. [ 37 ] In 1994, the accused was assessed at Centre Robert-Giffard. The accused refused to let Anne Thibault-Bellerose, the parole officer, access the assessment. [ 38 ] In February 1995, the accused said that he did not believe in therapy and that he did not need it because he would not do it again. Also in 1995, the accused told a worker that he did not want to enter therapy for sexual deviants.

On April 5, 1995, the accused said that he realized he had a sexual problem, but he wanted individual therapy. On May 8, 1995, it was noted that his risk of reoffending was very present because he had not had any therapy. [ 39 ] On January 20, 2000, the accused told Sylvie Couture that he had been thinking about committing suicide for a long time and added that the psychologist was aware of this. [ 40 ] On May 16, 2000, the accused was reassessed at Centre Robert-Giffard. Psychiatrist Sylvain Faucher and sexologist Normande Couture completed the accused’s psychiatric and sexological assessment report.

They noted that during the earlier probation measures, the accused was resistant to all therapy. They indicated that the accused connected his sex offences with his drug problems. They noted that even though the accused said he was willing to cooperate, he remained resistant to any assessment or therapy. [ 41 ] In their report on the accused’s problem, they stated: [ translation ] Overall, the results of the current assessment are largely identical to the results of the 1994 assessment.

The subject’s general functioning remains characterized by impulsiveness, low tolerance to frustration, cognitive rigidity, hence the considerable difficulty in questioning himself, a great need to control his surroundings to satisfy his needs, lack of empathy, and a clear propensity to act out. The only difference this time is the defeatism compared to the earlier assessment. This change might be explained by the fact that G. L.’s latest arrest may have affected the narcissistic facade he displayed in 1994.

With respect to sexual functioning, the current assessment confirms earlier suspicions of an interest in bisexual pedophilia. This suggests that G. L. has a sexual preference for children as opposed to adults. We feel that the sexual acts committed by G. L. now at issue fall within this sexual preference for children, but also within a general

functioning where the satisfaction of his needs prevails regardless of the impact on those around him. It is clear that no form of behaviour is unacceptable for G. L., even violence. G. L. considers his reactions appropriate, especially since he readily perceives himself as the victim of misunderstanding or malice by those around him. He therefore displays no regret or guilt for his offences. [ 42 ] The two professionals made the following recommendation: [ translation ] First, it is very clear that G. L. is not at all an appropriate candidate for any sex therapy or other type of therapy. G.

L. is open to it in appearance only, because this facade hides many elements of control and he therefore does not genuinely question his functioning. Moreover, the subject’s repeated offences indicate that he has not incorporated social and sexual prohibitions or learned from his past experiences. Nothing seems to stop him; the last offence was committed against his son while he was looking after him, a son who, moreover, has major health issues. G. L.’s closed attitude can only be deplored, and we believe that he poses a significant danger to society.

In our opinion, the subject is at a very high risk of reoffending, sexually or non-sexually. [ 43 ] In October 2000, the accused was assessed by Dr. Louis Morissette at Institut Philippe-Pinel. A plethysmography revealed that the accused was most aroused by the scenario with young girls in an incestuous context. Similarly, the scenarios of young girls and young boys with or without violence also elicited a considerable response. He was diagnosed with paraphilia characterized by non- exclusive homosexual and heterosexual pedophilia.

The psychiatrist concluded that the risk of release would be assumable if the accused questioned his behaviour and received external support. [ 44 ] In October 2001, the accused said that he wanted to undergo sex therapy in Montreal, not in the Québec area. He then explained that he did not get along with the people running the program. [ 45 ] In November 2001, probation officer Christine Tremblay said that the accused is very arrogant and manipulative. She noted, however, that he was open to sex therapy in Montreal.

On November 29, 2001, Guy Couture said that the accused had received several disciplinary reports for threatening language and physical violence. He added that the accused did not appear to acknowledge having any specific problem and that he had serious doubts as to the accused’s potential for social rehabilitation. [ 46 ] In December 2001, probation officer Christine Tremblay noted that the accused was resistant to any form of therapy. She said that he had a sexual preference for children and an anti-social narcissistic personality. She added that he minimized his problem with alcohol and drug consumption.

She also noted that the accused minimized the seriousness and scope of his offences. Finally, she stated that the accused’s dangerousness and risk of reoffending were significant. [ 47 ] On January 15, 2002, Danielle Lavoie stated that the accused was a candidate for Maison Radisson, which offered supervision and integrated individual therapy.

The accused, however, refused to consider this avenue. [ 48 ] The accused’s LTSO began on July 4, 2002, and was suspended on August 9, 2002, because the accused went outside the authorized territory. [ 49 ] On September 24, 2002, an NPB decision stated that the accused had not started any program since entering the Ogilvy Community Correctional Centre in July 2002 and did not want to discuss his most recent offence.

Moreover, his attitude showed little respect for the officers responsible for his supervision. [ 50 ] In October 2002, the Centre d’étude et de recherche de l’Université de Montréal (“CÉRUM”) conducted a sex offender plethysmography. The final report specified that the accused must participate in group therapy as soon as possible because he posed a moderate-to-high risk. [ 51 ] On February 7, 2003, an NPB decision stated that the accused, while living in a rooming house, was alone with a 14-year old child [18] without the presence of an adult aware of his problem.

The decision also stated that the accused refused to allow the staff to question him about his comings and goings or to meet with his family and friends. [ 52 ] On November 3, 2003, the accused underwent a psycho-physiological assessment by CÉRUM. The results indicated that the accused still displayed deviant sexual interests, now limited to prepubescent girls in intra-family contexts. The Static-99 scale assessed his long-term risk of reoffending as moderate-to-high.

According to SONAR, he had a substantial risk of reoffending. [ 53 ] On March 2, 2004, an NPB decision stated that the accused’s risk had aggravated because he would not cooperate during his supervision. [ 54 ] In 2004 and 2005, the accused twice participated in Maison d’Arrêt’s PARI program because he had breached the condition not to consume alcohol.

This program was for offenders whose social rehabilitation was compromised and fostered a return to the community. [ 55 ] From September 9 to December 7, 2004, while detained in the Montée St-François facility, the accused completed “Violence Interdite Sur Autrui” (“VISA”), a program for incestuous fathers. The final report stated that the accused cooperated well and completed the treatment.

As a result, he was granted statutory release in January 2005. [ 56 ] On September 7, 2005, during an unannounced visit, his supervisor discovered the accused sitting at a table in the restaurant of the motel where he was living. There was a wine glass next to his plate and an unfinished litre of red wine. The accused begged the supervisor not to say anything and to be lenient. After he was re-incarcerated, the accused participated in the Maison d’Arrêt program. His participation was considered satisfactory overall.

The accused, however, continued to minimize, rationalize, and justify his alcohol- related breaches of conditions.

[ 57 ] On November 18, 2005, an NPB decision discussed two alcohol-related breaches of conditions. The NPB noted that: [ translation ] Your inability to seek help during periods of vulnerability is a factor that also increases the risk of reoffending. … The Intensive Supervision Program (PSI) provided the strictest supervision possible but despite this, it was impossible to prevent these drinking relapses. [ 58 ] On April 12, 2006, a psychological assessment was conducted for the NPB. It recommended that the accused start treatment for his sexual deviancy and his alcohol problem.

His risk of sex offences was assessed as moderate-to-high. [ 59 ] In May 2006, the accused had another plethysmography. Patrick Michaud stated that the accused still displayed a deviant preference for prepubescent girls, but without violence. [ 60 ] On July 28, 2006, the NPB refused to grant the accused day parole because he had not completed any sex offender program and was therefore an unacceptable risk. [ 61 ] From May 1 to August 16, 2007, the accused participated in a national sex offender maintenance program. The accused did not complete this program because his LTSO was suspended.

The final report indicated that he had shown little motivation throughout his participation. The words suspicious, inflexible, and defensive were used to describe his relationship with the therapists and the other participants.

The treatment goals identified in advance were not achieved due to his lack of commitment. [ 62 ] On May 21, 2008, the accused told Chantal Arsenault that the treatment he had taken to date helped him try to stop feeding his fantasies. [ 63 ] From 2008 to 2010, the accused participated in individual psychological treatment in the community with two different psychologists. [19] [ 64 ] On January 7, 2010, the accused began psychological treatment to comply with a supervision condition regarding his sexual deviancy. The accused cancelled an appointment on January 21, 2010.

He said that he did not like the treatment and did not know what he could get out of it. [ 65 ] On January 19, 2010, the NPB issued the following formal warning to the accused: [ translation ] The Board has read the latest information in your file and informs you that it is very dissatisfied with your recent attitude concerning the rules and conditions imposed. In the past months, you have been resistant to authority, making it difficult to supervise you in the community. Moreover, your participation and motivation in your correctional plan has been limited.

The Board would like to remind you how important it is that you be fully transparent about what you are doing and who you are meeting to avoid the imposition of more coercive measures to correct the situation. [ 66 ] On January 26, 2010, during a home visit, his supervisor noticed a full open bottle of beer on his refrigerator. The accused told him that it belonged to a friend who had visited him the previous day. The next day, his case management team (“CMT”) called him on his cellphone and asked him to report immediately for a urine test. The accused refused to go.

He said that he had matters to take care of and preferred to have his release suspended and return to the penitentiary. The accused was unlawfully at large for 11 days. [ 67 ] From May 26 to July 25, 2011, while in the community, the accused participated in the National Substance Abuse Program Moderate Intensity (“NSAP-M”). It was suggested that he participate in this program as an alternative measure to incarceration. His participation in the program was interrupted because he was unlawfully at large and his LTSO was suspended.

The report of August 8, 2011, stated that he had little motivation and that his attitude fluctuated between cooperation and confrontation. The accused insisted that he had no consumption problem. [ 68 ] In July 2011, the accused started treatment in the community with psychologist Patrick Grisé. It was interrupted three times because he was re-incarcerated. He participated in a total of 27 individual sessions. During the initial appointment in July 2011, the accused told Dr.

Grisé about his weariness with the treatment measures imposed and that he was [ translation ] “worn out” by all the different therapies and therapists. The accused confided that he was [ translation ] “fed up” and [ translation ] “exhausted” from having to repeatedly discuss his sex offences. He told him that he could not commit the same offence again given the changes he had made to his lifestyle in recent years. He repeated that he no longer posed a danger to minors and was committed to complying with his supervision conditions.

Furthermore, the accused told him that he did not want to invest in a stable relationship as long as he was under supervision because he did not want the CSC interfering in his personal life. His LTSO was suspended one week after this appointment due to a breach of condition. [ 69 ] On July 25, 2011, a follow-up appointment was scheduled to address the accused’s inappropriate behaviour toward a worker in a halfway house. The accused spoke aggressively to the worker one evening after he had returned.

When the police arrived, the accused had already left the halfway house and was unlawfully at large for 17 days. [ 70 ] On October 12, 2011, the NPB stated the following about this last incident: [ translation ] You were already subject to a very restrictive supervision measure, the PSI, which did not prevent you from breaking the rules and being

unlawfully at large. You clearly refuse to cooperate and respect your undertakings regarding the supervision conditions. This behaviour means that it is impossible to manage your case in the community safely for society. [ 71 ] In March 2013, the psychological treatment with Dr. Grisé resumed. The accused told him that he felt ashamed and had been rejected by his family because of his deviant acts. He said that he found it difficult to always have to comply with some form of supervision. He felt that he was suffocating and no longer had any freedom.

Some time later, his LTSO was again suspended for breach of condition. [ 72 ] On January 22, 2014, the NPB stated: [ translation ] You are aware that your consumption increases your risk of sexually reoffending against children. Over the years, you have remained an individual whose behaviour is erratic, reprehensible, and unpredictable. You are fully aware that when you are intoxicated, you put yourself at risk and become a danger for the protection of society. [ 73 ] In August 2014, the accused resumed his psychological treatment with Dr. Grisé.

They discussed the accused’s tendency to minimize the importance of his alcohol problem. Once again, the accused explained his difficulty living with what he perceived as a form of invasion of his privacy by CSC. During the following months, the psychologist realized that it was hard to help the subject because he had a tendency to keep his distance and avoid confiding his problems to him. Moreover, the accused declined Dr. Grisé’s offer to consult a psychiatrist.

The psychologist noted that the accused remained rather suspicious of the CSC workers, whose presence he viewed as intrusive. [ 74 ] On May 27, 2014, Manon Jetté stated that the accused’s level of accountability, motivation, and potential for social rehabilitation was low. She added that the accused insisted on violating the judicial measures imposed. His cooperation with supervision appeared to be limited and he accepted little responsibility for his contributing factors. She noted that the actuarial and clinical assessments pointed to a moderate-to-high or high risk of sexual reoffending.

She noted that the accused needed considerable supervision and that he categorically maintained that he would not stop drinking alcohol. Moreover, she stated that: [ translation ] Until G. L. is able to question himself and reflect on the reasons that compel him to consume, and until he takes responsibility for properly managing his emotions, I find that the danger to society is still very present. He has proved over and over that he needed a high level of intervention to help him comply with his rules and conditions.

He has also proved over and over that the measures imposed by the justice system have had no deterrent effect. [ 75 ] In May 2015, psychologist Patrick Grisé felt that the accused possessed more than one asset to help him successfully rehabilitate into society because he was intelligent, hard working, and had the support of two friends and his mother.

In the following months, the psychologist noted that the accused refused to invest in his psychological treatment and that his efforts to avoid appointments were increasingly obvious. [ 76 ] On December 4, 2015, the accused was sentenced to 90 days’ imprisonment to be served intermittently for impaired driving. On December 14, 2015, the accused was inebriated when he returned to the penitentiary after having served part of his sentence. His LTSO was suspended again. [ 77 ] In January 2016, the accused participated in seven weeks of therapy at the community-based residential facility “L’Étape”.

He successfully completed the therapy. Despite a willingness to change, however, the accused could not remain sober for a long period and relapsed in April 2016. [ 78 ] On January 10, 2018, parole officer Isabelle Lacharité said that the sexual trauma experienced by the accused as a youth affected his psychosexual development and perception of sexuality. He does not appear to have incorporated social and sexual prohibitions and maintains cognitive distortions that make it easier to act out sexually while downplaying the repercussions for his victims.

His self- victimization was addressed during supervision meetings, but the accused showed no real motivation to deal with this part of his life. [ 79 ] She further noted that the accused has a tendency to [ translation ] “freeze” his emotions rather than ask for the help required to overcome his problems. She also said that the accused has trouble accepting his status as a long-term offender and the restrictive supervision standards imposed on him, in particular the prohibition against consuming alcohol. [ 80 ] Ms.

Lacharité also indicated that, despite the willingness to change he had expressed since the summer of 2015, the accused ignored his risk factors in 2017. She observed that he failed to use the tools learned during the programs and psychological treatment to avoid acting out. She also noted that he did not request help before spiralling downwards, which resulted in innocent victims. She said that the accused posed a much greater risk to society because he has progressed from intra-family to extra-family victims.

In 2017, due to the accused’s failure to inform his CMT about his contact with families with young children and his alcohol use, she concluded: [ translation ] He gave the information needed to avoid raising suspicions about himself. He said what he was expected to say. He clearly manipulated and deliberately lied to his CMT. [ 81 ] On April 5, 2018, Dr. Patrick Grisé stated that the accused’s psychological treatment resumed after the 2016 Christmas holidays, but that it was marked by an even greater lack of interest (e.g., late arrivals, missed appointments, work).

He noted that the accused showed no motivation to [ translation ] “work” during the sessions and evaded his efforts to revisit issues that were more difficult for him

to deal with. What is troubling is that the psychologist stated that the accused met with his parole officer on the very morning he assaulted X. Dr. Grisé concluded his report as follows: [ translation ] Many interventions were attempted to help free G. L. from a quagmire that has led to repeated suspensions of his supervision period. The fact remains that none of the CSC measures (programs/supervision/treatment) have managed to make his shame more tolerable, a shame which appears to have caused him to plunge even deeper into a massive denial of his unspeakable or painful internal experiences. G.

L. was quite defensive to the end and placed himself, more or less consciously, in a position that could only harm his own interests. APPLICABLE LAW 1.

GENERAL REMARKS [ 82 ] A dangerous offender [20] proceeding is one of the most serious proceedings known to law. [21] Given the seriousness of the application, the prosecution must first seek the consent of the attorney general. [22] [ 83 ] The prosecution must then complete two stages: the designation stage and the penalty stage. [23] [ 84 ] Furthermore, an application for finding that an offender is a dangerous offender contemplates primarily two types of dangerousness, [24] based on whether the accused’s behaviour is violent [25] or sexual. [26] [ 85 ] The Criminal Code lists four different paths to finding that an accused is a dangerous offender. [27] When it involves violent behaviour, the prosecution must prove, beyond a reasonable doubt, [28] one of the three alternative behaviours [29] set out in ss. 753(1) ( a ) (

i) to (iii) of the Criminal Code . Evidence of any one of these behaviours suffices. [30] [ 86 ] Here, the prosecution’s request is based on ss. 753(1) ( a )(

i) and (ii) of the Criminal Code .

Therefore, the prosecution must first prove that the offence for which the accused has been convicted is a “serious personal injury offence”. [31] Second, the prosecution must prove that the accused represents a threat [32] to the life, safety or physical or mental well-being of other persons due to: (1) a pattern of repetitive behaviour by the accused, of which the offence for which he has been convicted forms a part, showing a failure 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, (2) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the accused respecting the reasonably foreseeable consequences to other persons of his behaviour. [ 87 ] In Courtemanche c.

R. , the Court of Appeal summarized these two grounds as follows: [ translation ] [23] The pattern of repetitive behaviour or pattern of persistent aggressive behaviour contemplated in subparagraphs 753(1)( a )(

i) and (ii) Cr.

C. has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely commit violent offences in the future that threaten the life, safety, or well-being of other persons and that are consistent with the same pattern. [33] [ 88 ] The Court must therefore be satisfied on the evidence that the accused poses a high likelihood of harmful recidivism and that his conduct is intractable. [34] Intractable conduct means behaviour that the accused is unable to surmount. [35] [ 89 ] In both these situations, the Court must conduct a subjective assessment that considers retrospective and prospective evidence, including future treatment prospects. [36] [ 90 ] It is acknowledged that the prosecution does not have the burden of proving that there is no hope for the accused or that the accused will never be treatable. [37] [ 91 ] Furthermore, a period of judicial calm is an element to consider but does not de facto prevent a finding that the offender is dangerous. [38] [ 92 ] Moreover, even if an accused concedes that he or she is a dangerous offender, this concession does not relieve the Court of its duty to evaluate the evidence and be satisfied that the criteria have in fact been met. [39] [ 93 ] The Court has no discretion and must designate the accused as dangerous if the conditions of s. 753(1) of the Criminal Code are met. [40] 2.

EXPERT WITNESS [ 94 ] An expert’s assessment report is relevant evidence that cannot be ignored by the Court when considering an application for finding an offender dangerous. [41] Neither the prosecution nor the accused, however, are bound by this report. [42] Nor is the Court bound by the opinion of an expert, [43] whose testimony must be assessed in the same manner as any other witness. [44] Indeed, it is acknowledged that it falls entirely to the Court to assess and weigh the evidence. [45] This is because ultimately, the decision to find an accused a dangerous offender rests with the Court. [46]

[ 95 ] That said, the probative value to be granted an expert opinion is directly related to the quantity and quality of the admissible evidence upon which it is based. [47] Therefore, an opinion that is not based on the evidence [48] or that fails to consider the facts [49] is of low probative value. This was recently recalled by the Honourable Yvan Poulin in R. c. Faivre : [ translation ] [52] The evidence reveals that for the purpose of his analysis, Dr. Morissette failed to consider several determinative aspects of the file.

It was also established that he considered inaccurate and incomplete elements for the purpose of his assessment. Given all the circumstances described during the hearing, the Court is of the view that these deficiencies significantly reduce the probative weight and value of this assessment. [50] [ 96 ] Moreover, when the Court compares expert testimony, it must bear in mind the precise mandate given to each expert and the context in which the expert evidence was requested. [51] ANALYSIS 1.

IS THE OFFENCE OF SEXUAL INTERFERENCE A SERIOUS PERSONAL INJURY OFFENCE? [ 97 ] To constitute a serious personal injury offence, the predicate offence must be an indictable offence punishable by imprisonment for 10 years or more involving conduct inflicting or likely to inflict severe psychological damage on another person.

This criterion is objective. [52] The Court is not bound to conduct a qualitative analysis of the level of violence used during the commission of the predicate offence [53] or to ensure that the predicate offence involves a minimum objective level of violence. [54] [ 98 ] The danger contemplated by s. 752 ( a )(

i) of the Criminal Code , however, must be more than a disturbance or discomfort. [55] Moreover, it has been decided that s. 752 of the Criminal Code does not apply solely to offences against the person. [56] That said, to determine whether an offence constitutes a serious personal injury offence, it is necessary to review the elements of the offence, but it may also be necessary, if that review is insufficient, to consider the factual circumstances in which it was committed. [57] [ 99 ] In this case, the accused expressly admits that the predicate offence of sexual interference satisfies the definition of serious personal injury offence. [58] [ 100 ] Regardless of this admission, the Court finds that the offence of sexual interference constitutes a serious personal injury offence.

First, when prosecuted by way of indictment, s. 151 of the Criminal Code provides for a sentence of 14 years’ imprisonment. Second, the case law acknowledges that the offence of sexual interference constitutes a serious personal injury offence. [59] [ 101 ] Furthermore, s. 752 of the Criminal Code includes offences inflicting or likely to inflict severe psychological damage. [60] It is established, however, that any sexual abuse of children causes profound psychological harm, [61] as recognized by the Court of Appeal of Quebec in R. c.

R.H. : [ translation ] The sexual assault of children is a particularly odious crime because it is perpetrated against defenceless beings and is most often facilitated by an emotional relationship or one of authority, breaches a relationship of trust, and traumatizes and deprives the victim of normal sexual development.

In recent years, our courts have rightly become increasingly harsh in such cases, not in response to accusations of laxity by certain newspapers, as the trial judge noted in his report to the Court, but because they view it as a profoundly anti-human, anti-social act and are aware of its impact and repercussions on victims. [62] [ 102 ] Here, the evidence establishes that X, like D before him, is still affected by the incident. Nearly two years after the incident, X is a withdrawn child who is hesitant around men, even his own grandfathers.

The Court considers the accused himself a living example of the harm caused by sexual abuse of a child. [ 103 ] Moreover, the Court notes that this type of offence also causes significant harm to the victims’ parents. Since the incident, N. M. blames herself for leaving her son alone with the accused. She thinks about it every day and considers herself an unworthy mother who failed to protect her son. X’s abuse even led to K. T. and N. M.’s separation. 2.

DOES THE ACCUSED CONSTITUTE A THREAT TO THE LIFE, SAFETY OR PHYSICAL OR MENTAL WELL- BEING OF OTHER PERSONS? 2.1 DOES THE ACCUSED’S BEHAVIOUR FORM PART OF A PATTERN OF REPETITIVE BEHAVIOUR? 2.1.1 PATTERN OF REPETITIVE BEHAVIOUR – 753(1)( a )(

i) Cr.

C. [ 104 ] To meet this criterion, it is not sufficient for the accused to have a history of criminal activity or a lengthy criminal record. [63] The prosecution must prove that the accused’s behaviour is repetitive or persistent. [ 105 ] This criterion of repetition should not result in a rigid analysis of similar acts. [64] The offences therefore need not be identical, but they must include a degree of similarity or have a common feature. [65] It is understood that one episode of violence or aggression will not suffice to meet this criterion. [66] [ 106 ] The Court may consider offences which have not been the subject of prior criminal charges, however, provided they are proven beyond a reasonable doubt. [67] [ 107 ] To determine whether there is a pattern sufficient to predict future conduct, the Court may consider the following: [68] (1) what type of conduct was involved,

(2) who, generally, the victims were, and (3) what motivated the accused to commit the offences. [ 108 ] Two offences, including the one for which the accused has been convicted, may be sufficient to establish a pattern of repetitive behaviour. [69] These two offences, however, must have a very high degree of similarity. [70] [ 109 ] To determine whether an accused’s behaviour forms a pattern, the Court must consider the context and circumstances surrounding his offences. [71] Furthermore, past offences need not have any specific level of gravity to be included in the analysis of repetitive behaviour. [72] A pattern of repetitive behaviour may also be established solely on the basis of the predicate offences without regard to whether the accused has prior convictions. [73] [ 110 ] That said, it is acknowledged that it is for the Court to determine this issue, not psychologists or psychiatrists. [74] [ 111 ] In this matter, the evidence establishes a pattern of repetitive behaviour: • The three incidents involved prepubescent children (4 to 6 years old); • The accused had custody of the child, or had asked [75] or offered to babysit; • The accused was intoxicated or in a period when he was drinking alcohol; • The accused was alone with the child; • The accused was in a position of authority or trust; • The accused had the child perform fellatio on him and/or performed fellatio on the child; • During the incidents with D and X, both the accused and the child were naked in front of the television; [76] • The offences were committed at a time when the accused had a deficient emotional and relational life; • The offences were committed without any violence other than the assault itself. 2.1.2 Pattern of persistent aggressive behaviour - 753( i )( a )( ii ) Cr.

C. [ 112 ] This condition requires proof that the accused’s behaviour was aggressive and persistent. Even though Parliament used the word “persistent” instead of “repetitive”, it has been held that these terms are synonymous. [77] Furthermore, this condition does not require similarity between the offences. [78] [ 113 ] For the following reasons, the Court finds that the prosecution has proved this condition. The evidence reveals that the accused assaulted young children in 1994, 1999, and 2017. He always used almost the same modus operandi each time.

The last assault occurred even though he was subject to a LTSO and had already received treatment. Moreover, his aggressive behaviour has become more threatening because he now assaults victims outside the family. 2.2 HAS THE ACCUSED SHOWN A FAILURE TO RESTRAIN HIS BEHAVIOUR OR A SUBSTANTIAL DEGREE OF INDIFFERENCE RESPECTING THE REASONABLY FORESEEABLE CONSEQUENCES OF HIS BEHAVIOUR? [ 114 ] The Court notes that the commission of sex offences does not prevent the application of s. 753(1) (

a) of the Criminal Code when this conduct shows the accused’s failure to restrain his behaviour or indifference respecting the reasonably foreseeable consequences to other persons. [79] [ 115 ] To prove an accused’s indifference, the evidence must demonstrate that the offender had a conscious, but uncaring, awareness of causing harm to others. [80] During its analysis, the Court must consider the accused’s behaviour not only while committing the predicate offence, but also his behaviour before and after it was committed. [81] [ 116 ] Authors Hugues Parent and Julie Desrosiers note that this usually refers to individuals who have no empathy or are clearly indifferent to the feelings of others and have little awareness of the harm caused to victims and the community. [82] [ 117 ] For the following reasons, the Court finds that the accused has failed to restrain his behaviour and is indifferent to the reasonably foreseeable consequences of his behaviour. [ 118 ] The accused places himself in situations of risk by befriending families with young children.

In addition, the fact that he is under strict supervision and is expressly prohibited from being around children without the presence of an adult aware of his situation has done nothing to quell his appetite. [ 119 ] The accused also said that he trusted himself and was convinced that it would never happen again; [83] that he was confident he was like everyone else; [84] and that he was very sure of himself [85] and did not believe he would relapse. [86] When questioned on why he committed the offence against X, however, the accused could not provide even one answer, even though he said there were many racing around inside his head. [87] [ 120 ] Similarly, when questioned on why he offered to babysit X when he claims that he is not close to the family, the accused answered: [ translation ] “Well, that’s what happened.” [88] When questioned by X’s father, the accused told him: [ translation ] “What do you want me to say.

I can’t help myself. It shouldn’t have happened like that.” [89] He also told X’s mother: [ translation ] “It wasn’t supposed to be like that, I don’t understand myself, what do you want me to say”. [90]

[ 121 ] The Court also notes that the last offence occurred when everything was going well for the accused. He was working in his field and earning a good salary. He had his own apartment, a driver’s licence, and a car. He also had a good relationship with his supervisor and knew that she wanted to help him. [91] [ 122 ] The evidence also establishes that the accused is unable to seek help despite the presence of risk factors.

In this regard, he said that he might have had to move had he warned his neighbours or the young families of his status. [92] The accused added that he did not tell his supervisors about it for fear of being suspended [93] and having to start over from scratch. [94] The accused wanted to live like a normal person. [95] [ 123 ] This proves that ultimately, the accused is more concerned about his own interests than trying to control his impulses to avoid creating new victims.

It is clear to the Court that the circumstances in which the predicate offence was committed establish that the accused’s state has worsened, despite the passage of time and the treatment undergone. [ 124 ] Moreover, the accused abused the trust he was granted to babysit the young X. According to K.

T., that was not the first time that the accused had offered to babysit one of their children. [96] [ 125 ] The evidence also establishes that the accused has only just started to [ translation ] “accept the idea that he has the pathology of a pedophile” [97] after creating a third victim under 6 years old. [ 126 ] Moreover, the accused has always shown little motivation to acknowledge and seriously address his sexual issue.

Despite several treatments, his deviance is still very present. [ 127 ] The accused also minimizes his drinking problem, despite two convictions for impaired driving and many breaches of condition. It is clear to the Court that the accused is incapable of controlling his drinking and shows no genuine interest in correcting this issue, despite its being a major risk factor. [ 128 ] In

summary, the evidence establishes that the accused is unable to control his behaviour and is indifferent to the repercussions of his behaviour on other persons. 2.3 IS THERE A LIKELIHOOD THE ACCUSED WILL INFLICT SEVERE PSYCHOLOGICAL DAMAGE ON OTHER PERSONS? [ 129 ] At this stage, the Court must assess the probability that the accused’s behaviour will or will not be inhibited and, as a corollary, the likelihood that he will cause serious injury to other persons. [98] The likelihood at issue must not be a mere possibility [99] or amount to certainty. [100] As stated by the Honourable Richard Marleau in R. c.

Auguste , the prosecution: [ translation ] [124] ... must prove a present likelihood that injury will be caused in the future.

Therefore, the burden is not to prove beyond a reasonable doubt that the offender will reoffend, but to establish evidence grounding a belief that he will do so. [101] [ 130 ] The Court may consider, during its analysis, events for which no charges were laid, [102] the accused’s youth record, [103] police synopses, [104] and correctional service documents. [105] [ 131 ] It is further acknowledged that the Court may designate an offender as dangerous only if it finds, after a prospective assessment of dangerousness, that he poses a future risk. [106] As previously stated, the Court must consider future treatment prospects.

The treatment prospect, however, must not be based on mere hope or pure speculation. [107] Additionally, a final attempt at treatment should not be considered if it is to the detriment of public safety. [108] [ 132 ] The evidence must instead establish that actual possible treatment is available. [109] Statistical proof totally unrelated to the accused has very low probative value. [110] [ 133 ] In other words, the Court must ensure that there is a reasonable possibility that the risk posed by the accused can be controlled in the community. [111] This possibility need not amount to a complete elimination of the risk or an absolute certainty, [112] but rather that the public threat posed by the accused has been reduced to an acceptable level. [113] It is understood that the prosecution does not have to prove that the accused is untreatable [114] or that there is no reasonable possibility of control in the community. [115] Similarly, the mere possibility that treatment might benefit an accused is not, in and of itself, sufficient to conclude that the accused’s risk can be controlled. [116] [ 134 ] In this regard, the Court of Appeal for Ontario in R. v.

McCallum [117] established a three-pronged test [118] to assess the reasonable possibility of an accused’s treatment:

(1) There must be evidence of treatability of the offender that is more than an expression of mere hope;

(2) This evidence must indicate that the offender can be treated within a definite period of time; [119] and

(3) This evidence must be specific to the offender in question. [120] [ 135 ] Furthermore, any proposed future treatment must not be simply a reworked version of the accused’s unsuccessful past treatments. [121] The treatment prospects must be so compelling that the Court cannot conclude beyond a reasonable doubt that there is a high likelihood of reoffending or intractable conduct. [122] During its analysis, the Court may consider the following non-exhaustive list of factors concerning the accused: [123] • The accused’s personality; [124]

• The number, nature, and seriousness of his previous convictions; [125] • His resistance to any form of control or supervision; [126] • His failure to abide by conditions; [127] • His attitude or behaviour during supervision imposed after a long-term offender designation; [128] • His behaviour and disciplinary breaches in the detention centre; [129] • His denial of any deviancy or refusal to be rid of it; [130] • His refusal to participate in the assessment process; [131] • His refusal to undergo a test; [132] • His refusal to allow access to a life partner, friends, or family members; [133] • His refusal to participate in any treatment to correct his deviancies [134] or his failure to properly invest in past treatments; [135] • His refusal or unwillingness to take his medication; [136] • The fact that he ended, abandoned, or was expelled from a treatment program; [137] • The fact that he has already undergone treatment that produced little or no results; [138] • The fact that the accused never successfully underwent treatment in the past; [139] • His lack of insight or denial that a problem exists; [140] • His attitude or past resistance to treatment provided; [141] • The fact that no treatment is available to treat him; [142] • His unwillingness to take required medication; [143] • His manipulation or his lying; [144] • His lack of motivation to control his problem or participate in treatment; [145] • His lack of empathy or remorse for the victims; • His refusal to admit responsibility for, or his denial or minimization of, the offence. [146] [ 136 ] Similarly, to assess whether an accused can be “controlled” in society, the Court may consider whether he has any family or community support. [147] [ 137 ] Furthermore, the accused’s age is not a decisive factor per se , because it is the accused’s threat to the community that is assessed. [148] This is particularly true when the accused was no longer a young adult when the predicate offence was committed. [149] The effect of an accused’s age must be specific to the accused [150] and not be based solely on general statistical evidence. [151] [ 138 ] Moreover, when the Court analyzes the accused’s supervision possibilities in the community, it must be sure that the necessary resources for this supervision exist and are available. [152] If not, the supervision is only speculative and offers no guarantee that the accused’s risk can be avoided. [ 139 ] The measures proposed to restrict the accused’s potential threat must also be “curative” and not simply an expression of hopes about how the parole officers should conduct their work. [153] [ 140 ] The dangerous offender provisions concern the possibility of the accused doing better in society, not of his being intensely supervised or monitored by the authorities. [154] [ 141 ] That said, the Court notes that a prospect of social rehabilitation tantamount to confinement to a halfway house does not meet the objective of a long-term offender designation. [155] Similarly, it is not for an expert or the Court to intervene in CSC’s management of the sentence [156] or to impose conditions on an offender in a halfway house. [157] [ 142 ] For the following reasons, the Court finds that the prosecution has met its burden of proving that the accused has shown a likelihood of causing injury to or inflicting severe psychological damage on other persons and that the risk posed by the accused cannot be controlled in the community. [ 143 ] First, Dr.

Morissette is of the opinion that the accused poses a significantly higher risk of recidivism, sexual or otherwise, than the average federal inmate. [158] He noted that when the scores of the Stable-2007 are combined with those of the Static-99R , the accused falls into a group who on average reoffend after five years in the community.

He said that the accused has clearly had a problem with pedophilia since at least 1993 [159] and that the incident involving X was not a chance mishap. [160] He added that the accused has displayed narcissistic and antisocial personality traits since 1994. [161] He further testified that the accused assuredly poses a threat to the community that justifies extremely strict supervision like what he had for 15 years. [162] In fact, his risk of recidivism has

increased. [163] [ 144 ] Second, the accused’s dangerousness has only increased over the years because his victims now come from both inside and outside the family. [ 145 ] Third, the accused has shown that he does not comply with the court orders because he has 5 breaches of conditions or probation and 16 convictions for failure to comply with a LTSO. [ 146 ] Fourth, the accused has shown for over 15 years that he is recalcitrant to any form of supervision and does not hesitate to lie or to mislead his case management team.

The Court is particularly worried and disturbed by the fact that on two occasions, the accused opted to be unlawfully at large rather than obey an express directive from his CMT. [ 147 ] Fifth, the accused minimizes both his drinking and his sexual issues. The accused now says that he is ready to commit to therapy. Yet on many occasions in the past 15 years, he has not shown any motivation to address his sexual deviancy. His relationship with Dr. Grisé over the years is a flagrant example of his lack of interest in this regard. Indeed, Dr.

Morissette claims that the accused is still at the reflection stage because he is just accepting the idea that he has the pathology of a pedophile. [ 148 ] Sixth, the Court does not consider the accused at all credible.

He took liberty with the truth several times when he testified under oath before the Court. [ 149 ] First, he said that he was never suspended for speaking to an officer the wrong way or arguing with him. [164] On July 25, 2011, however, the accused behaved inappropriately and uttered aggressive remarks to a worker that ultimately led to his reincarceration because he decided to leave before the police arrived and was unlawfully at large for 17 days. [ 150 ] Second, he said that he ended the maintenance program because he entered an individual program. [165] The program ended, however, because the accused’s LTSO was suspended. [ 151 ] As another example, the accused said that he actively participated and cooperated during appointments with Dr.

Grisé. [166] The doctor, however, stated in a report from April 2018 that the accused displayed considerable lack of interest. [ 152 ] The accused also declared that he could abide by the strict conditions of his intensive supervision program. [167] That runs counter to the NPB’s finding of November 18, 2005, and the accused’s many breaches since July 2002. [ 153 ] Another example is when the accused was asked whether he had previously asked individuals to conceal information that could have constituted a breach, and he provided three successive contradictory answers: [ translation ] “no”, “not to my knowledge”, and “Mario Bolduc”. [168] The last answer is the most consistent with the facts, because on September 7, 2005, he asked an officer not to say anything and to be lenient after he was discovered drinking wine in a restaurant. [ 154 ] Furthermore, the accused was sarcastic and provided several options in response when he was asked whether he has a drinking problem: [ translation ] • “ Well, that’s what it looks like ”; [169] • It is problematic because it results in suspensions; [170] • He should start thinking about quitting drinking; [171] • “ No, I have a drug problem ”; [172] • He can drink normally, without overdrinking, so since he can do that, he tells himself... [173] [ 155 ] The accused also stated that he is prepared to follow the ICPM intensive program offered at the La Macaza penitentiary.

Yet he could not offer a brief description when asked for information about this program. He then stated: [ translation ] • “ It’s a bit like VISA, but more intensive ”; • “ I looked into it a little ”; • “ I think we do something like a

summary”; • “ I think I’ll meet with someone”; • “ I think there’ll be a strategy”; • He does not know whether it will be group or individual therapy. [ 156 ] This last element shows that the accused swears to enter a program about which he knows absolutely nothing or what it involves. Nothing, in fact, indicates that this program is intended specifically for him and that he will be able to complete it within a definite period. [ 157 ] Seventh, the past is often an indication of the future, and the documentary evidence and testimony establish that the accused

possesses almost all of the negative factors to prevent the success of any future treatment. [ 158 ] Eighth, the accused has already undergone several treatments and they had no effect on his behaviour. Moreover, the accused’s manipulations lies, desires, and resistance to starting or continuing any therapy related to his sexual deviancy are all obstacles to any future treatment. [ 159 ] In this case, aside from a statistical finding, the evidence is almost completely silent on the ICPM program. In this regard, Ms.

Hétu stated that this program is actually an amalgam of the accused’s previous treatments, which as we know have been unsuccessful. From all of the documentary evidence and the testimony, the Court finds that there is no reasonable possibility that the accused’s behaviour can be inhibited. The Court concludes that it there is a foreseeable likelihood that the accused, once confronted with life in the community, will not possess the necessary tools to control his sexual impulses and will therefore cause injury to or inflict severe psychological damage on others. 3.

SHOULD THE COURT SENTENCE THE ACCUSED FOR AN INDETERMINATE PERIOD? 3.1 APPLICABLE LAW [ 160 ] A dangerous offender proceeding is part of the sentencing process. [174] The general purpose of this designation is neither to punish or reform the accused, but to protect the public. [175] It is a preventive measure imposed on an accused who poses a real danger of future violence. [176] [ 161 ] The principles and objectives contained in ss. 718 to 718.2 of the Criminal Code apply to dangerous offender proceedings. [177] The Gladue [178] factors therefore apply at the sentencing stage, [179] but have limited importance due to the primary objective of public protection. [180] [ 162 ] Indeterminate detention is an exceptional sentence [181] reserved for offenders who pose an ongoing threat to society that merits enhanced sentences on preventive grounds. [182] The Court recalls that a dangerous offender label has heavy consequences and carries significant stigma. [183] [ 163 ] In fact, apart from life imprisonment, an indeterminate sentence is one of the harshest sanctions available under the Criminal Code . [184] In this regard, it should be noted that even if a dangerous offender agrees to an indeterminate sentence, that does not relieve the Court of its duty to ensure that the sentence is appropriate in the circumstances. [185] It is not a sentence in perpetuity, however, because there are mandatory reviews. [186] [ 164 ] Authors Hugues Parent and Julie Desrosiers note that an indeterminate sentence is reserved for individuals resistant to treatment who cannot abide by society’s rules of functioning, either in detention or after release, and show little acknowledgement of their behavioural problems or any desire to actively participate in therapy. [187] [ 165 ] At the designation stage, “treatability” informs the decision on the threat posed by an accused, whereas at the penalty stage, it helps determine the appropriate sentence to manage the identified threat. [188] At this stage, although it may have been established that an accused is unable to surmount his or her violent conduct, the Court must turn its mind to whether the risk arising from the accused’s behaviour can be managed outside of an indeterminate sentence. [189] [ 166 ] Section 753(4) of the Criminal Code grants the Court discretion to impose the least intrusive sentence required. [190] Section 753(4.1) of the Criminal Code provides guidance on how the Court can exercise its discretion. [191] [ 167 ] The Court should therefore impose an indeterminate period of detention only if it is convinced that it is the least restrictive means by which to reduce the public threat posed by an accused to an acceptable level. [192] [ 168 ] It is understood that this provision does not create a presumption in favour of indeterminate detention. [193] [ 169 ] In short, to reduce the risk to an acceptable level, the evidence must establish that there is a reasonable possibility of treating the accused, not that the risk posed by the accused will be altogether eliminated. [194] This reasonable possibility must of course be grounded in the evidence adduced during the hearing. [195] The Court notes that the Courts of Appeal of British Columbia and Manitoba recently held that “reasonable expectation/ attente vraisemblable ” in s. 753(4.1) of the Criminal Code imposes a higher standard than that of a “reasonable possibility”. [196] [ 170 ] That said, the proportionality principle requires the Court to adopt the following sentencing framework. [197] [ 171 ] First, if the Court is satisfied that a conventional sentence will adequately protect the public, then that sentence must be imposed on the accused.

If not, the Court must determine whether a sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order that does not exceed 10 years, will adequately protect the public. If such is the case, the Court must impose this sentence on the accused. If not, the Court must sentence the accused to detention in a penitentiary for an indeterminate period of time.

Although it may appear harsh, the Court must impose this sentence if it is required to protect the public. [198] [ 172 ] The Court notes that at this stage, there is no onus on the accused of demonstrating, in particular, that an indeterminate sentence ought not to be imposed. [199] 3.2 CONVENTIONAL SENTENCE [ 173 ] In this case, neither the prosecution nor the accused request a conventional sentence. The Court agrees. The accused was already a long-term offender prior to December 2017.

He has also been convicted several times for failure to comply with his LTSO. 3.3 DETERMINATE SENTENCE COMBINED WITH A 10-YEAR LTSO

[ 174 ] As previously stated, even though an accused has been designated as dangerous, the Court may impose a determinate sentence of imprisonment combined with a period of long-term supervision if it considers that this supervision will adequately protect the public against the risk posed by the accused. [200] [ 175 ] For the reasons that follow, the Court finds that such a sentence does not apply here. Furthermore, and with due respect, the Court does not accept the clinical opinion of Dr. Morissette in this regard. [ 176 ] First, Dr.

Morissette bases himself partly on the fact that the accused, after committing a third assault against a child, [ translation ] “is more accepting of the idea” that he has a sexual deviancy. [201] Yet later, the expert states that the accused is merely [ translation ] “considering the idea or contemplating” whether he is a pedophile. [202] He adds that the accused [ translation ] “is still only in the process of understanding” what happened. [203] The accused is therefore still very far from accepting his condition. The Court further notes that it does not believe the accused.

It is clear to the Court that the accused’s recent conversion on the utility of therapy for his sexual deviancy is merely an appearance for the sole purpose of avoiding detention for an indeterminate period. [ 177 ] Second, Dr. Morissette states that offenders who take the ICPM program must finish it to cut their risk in half. [204] The history of the accused’s last 15 years, however, shows that he is [ translation ] “worn out” by therapy and [ translation ] “reluctant” to follow treatment. Dr. Morissette further states that the ICPM program requires a minimum degree of cooperation by the accused. [205] Dr.

Morissette acknowledges, however, that the accused has never previously taken steps to start the courses of therapy proposed. [206] Due to the accused’s constant persistent lack of interest over the years, the Court does not believe that he will complete the intensive program. [ 178 ] Third, Dr. Morissette is not familiar with the ICPM program, the VISA program, [207] or the national maintenance program. [208] The Court therefore does not know how this intensive program can specifically help the accused.

Additionally, the evidence establishes that the ICPM program is merely an amalgam of treatments the accused has previously followed. Without evidence, the Court does not see how this intensive program will produce different results from those previously followed by the accused in the past. [ 179 ] Fourth, Dr.

Morissette seemingly wants to give the accused one last chance because he states that [ translation ] “the clinical objective of this type of assessment is to determine whether the person, there is nothing further that can be done to control the risk in the community”. [209] This approach has been rejected by the courts. [ 180 ] Fifth, Dr.

Morissette correctly states that the purpose of the debate is to determine a [ translation ] “treatment plan” that can reduce the accused’s risk of recidivism. [210] He even states in his report that after a prison term [ translation ] “during which the accused will participate in a specific program for his sexual deviancy”, an intervention plan will be implemented that will limit and control the accused in the community. [211] Astonishingly, when he testified, Dr.

Morissette totally abandoned this therapy and now states that this is unnecessary to reduce the risk posed by the accused. [212] He claims that it is enough to require the accused to stay in a halfway house where his comings and goings, contacts, budget, and substance use can be monitored for a sufficiently long period. [213] [ 181 ] In other words, his [ translation ] “treatment plan” instead comes down exclusively to a [ translation ] “supervision plan” aimed at very closely monitoring the accused in a halfway house [214] for many years and depending on his progress. [215] Yet the Court of Appeal of Quebec expressly rejected this approach in A.R. c.

R. , where it stated that: [ translation ] [3] The measures proposed by Dr. Morissette are not curative. They are instead hopes about how the parole officers should conduct their work. [4] It is not for the trial judge or this Court to manage the conditions imposed on the offender in the halfway house. [216] [ 182 ] This was recently reaffirmed by the Honourable Nancy McKenna in R. c. Allard : [ translation ] [80] ... Moreover, as previously stated, Dr.

Morissette’s report does not enlighten the Court on the actual preparation of an intervention plan to reduce the risk of reoffending, apart from reproducing a condition that resembles more a custodial setting than a genuine rehabilitation in society with supervisory controls. [83] Dr. Morissette’s plan resembles the one described by the trial judge in R. c. Carrier . The possibility of social rehabilitation while the accused is in some way confined to a halfway house is not the purpose of a long-term offender order. [217] [183] The Court also adopts the remarks of Beaton J. in R. v.

Ballantyne : [85] Managing risk in the community through very tight supervisory controls is different than reducing the risk to an acceptable level. An offender who needs 24 hour a day supervision in order to ensure that the public does not have an acceptable level of risk. … The dangerous offender provisions are concerned with whether an offender will eventually do well while not being intensely supervised. [218] [184] Sixth, Dr. Morissette’s plan does not state that the accused can be treated for a determinate period.

He limits himself to stating [ translation ] “that the accused should not be allowed to live alone until he has truly and clearly participated in specific sex offender and substance abuse programs”. [219] In this regard, he acknowledges that the accused’s problem occurs when he returns to the community and is no longer subject to any restrictive measures. [220] [185] Seventh, the Court wonders whether Dr. Morissette actually read the prison documents concerning the accused. He stated that the accused never escaped while he was in a halfway house.

Yet on July 25, 2011, after he behaved improperly and spoke aggressively to a halfway house worker, the accused left before the police arrived and was unlawfully at large for 17 days. Dr. Morissette was also unaware that the accused had been unlawfully at large for 11 days in January 2010. He admits that this weakens his position, but without

[ translation ] “totally destroying it”. [221] The Court recalls that the failure or refusal to consider relevant evidence reduces the reliability of expert evidence. [222] [186] Eighth, the Court finds that Dr. Morissette displayed a certain [ translation ] “tunnel vision” during his assessment. He stated that it was not relevant for him to communicate with the families of the young children or the accused’s circle. He claimed that he already knew what th

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