2021 QCCA 832, 2021 QCCA 832

Duperron c. R. 2021 QCCA 832 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006741-183 (500-01-048664-103) DATE: May 21, 2021 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. ROBERT M. MAINVILLE, J.A. STÉPHANE SANSFAÇON, J.A. STÉPHANE DUPERRON APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT THERE IS A PUBLICATION BAN IN THIS MATTER, PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE, THAT PROHIBITS THE PUBLICATION OF THE NAME OF ANY WITNESS AS WELL AS ANY INFORMATION THAT COULD IDENTIFY A WITNESS. [ 1 ] The appellant seeks to appeal a judgment of the Court of Québec, Criminal Division, District of Montreal, dated November 9, 2017 (the Honourable Justice Denis Mondor), which finds the appellant Stéphane Duperron to be a dangerous offender for an indeterminate term ( s. 753(4) (

a) Cr.C . ) instead of fixing a determinate term ( s. 753(4) (

b) Cr.C . ). [ 2 ] For the reasons of Hilton, J.A., with which Mainville and Sansfaçon, JJ.A. concur, THE COURT : [ 3 ] DISMISSES the appeal. ALLAN R. HILTON, J.A. ROBERT M. MAINVILLE, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Marie-Hélène Giroux MARIE-HÉLÈNE GIROUX AVOCATE For Appellant Mtre Richard Audet DIRECTIOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Date of hearing: November 26, 2020

REASONS OF HILTON, J.A. I INTRODUCTION AND THE FACTS [ 4 ] The only issue in this appeal is whether the trial judge erred in finding the appellant Stéphane Duperron to be a dangerous offender for an indeterminate term ( s. 753(4) (

a) Cr.C . ) instead of fixing a determinate term ( s. 753(4) (

b) Cr.C . ). These two provisions are to the following effect: Sentence for dangerous offender 753

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

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

c) impose a sentence for the offence for which the offender has been convicted. Peine pour délinquant dangereux 753

(4) S’il déclare que le délinquant est un délinquant dangereux, le tribunal :

a) soit lui inflige une peine de détention dans un pénitencier pour une période indéterminée;

b) soit lui inflige une peine minimale d’emprisonnement de deux ans pour l’infraction dont il a été déclaré coupable et ordonne qu’il soit soumis, pour une période maximale de dix ans, à une surveillance de longue durée;

c) soit lui inflige une peine pour l’infraction dont il a été déclaré coupable. [ 5 ] Mr. Duperron pleaded guilty on April 12, 2012 to having committed the indictable offences of sexual assault on June 2, 2010, contrary to s. 271(1) (

a) Cr.C . and knowingly uttering threats to cause death or bodily harm to another person contrary to s. 264.1(1) (

a) Cr.C . The trial judge, Mondor, J.C.Q., granted the Crown’s application to have him remanded for assessment pursuant to s. 752.1 Cr.C . to determine whether he might be found to be a dangerous offender ( s. 753 Cr.C .) or a long-term offender ( s. 753.1 Cr.C .). [ 6 ] In light of the guilty plea, the circumstances of the offence that Mr. Duperron committed are not fully detailed in the sentencing judgment under appeal. They are vividly described, however, in the handwritten statement subscribed by the then 20 year-old victim that led to the charges against him.

That statement leaves no doubt as to the vicious and callous nature of the sexual assault on an unsuspecting young woman who was out for an evening stroll.

[ 7 ] For present purposes, it suffices to relate that the victim took the Metro from her residence around 8:00 p.m. to make a purchase at a particular boutique. When she arrived at her intended destination she realized it was closed, and decided to walk home via a route she knew well. [ 8 ] Mr. Duperron had been sentenced in 1997 to an 18-year term of imprisonment for a series of sexual assaults. Several of the victims of those assaults were minors, and several of the assaults involved a complete act of intercourse.

He was eventually released from custodial confinement but made subject to a probation order. [ 9 ] The circumstances of the offence for which Mr. Duperron pleaded guilty that gave rise to the sentencing judgment under appeal are not in dispute. During the victim’s intended walk home, he jumped her from a secluded wooded area and dragged her to the ground. He struck her in the shoulder and face, and warned her that he would kill her if she did not keep quiet. He ordered her to undress and to cover her face with part of her clothing.

He then groped her with his hands and tongue, vaginally penetrated her and finally required her to fellate him, all the while threatening her not to resist as the assault proceeded, during the entirety of which the victim was crying. [ 10 ] During the assault, Mr. Duperron mentioned he was realizing a fantasy, which prompted the victim to disclose that she had been previously raped. Mr. Duperron briefly lost his erection, but continued to penetrate her while saying, untruthfully, that this was his first and last rape.

When the assault terminated, and with a view to attempting to eliminate any of his genetic profile from the victim, Mr. Duperron forced her to submerge herself in a nearby pool, and to cleanse the interior of her vagina. Shortly thereafter, he released her, after which she promptly reported the incident to the police. [ 11 ] Mr. Duperron was arrested once the genetic profile and that of the victim was established. He eventually pleaded guilty, after which the Crown initiated proceedings to have him declared a dangerous offender. [ 12 ] Mondor, J.C.Q. authorized an assessment of Mr. Duperron.

It concluded that he was incapable of controlling his sexual impulses, such that his future conduct could result in the infliction of harm and serious injury to others. Accordingly, after hearing relevant evidence on the subject, Vanasse, J.C.Q. granted the Crown’s application to have him declared a long-term offender, and specified that the term of his incarceration would be indeterminate rather than fixing a lesser determinate measure. [ 13 ] Mr. Duperron does not challenge his designation as a dangerous offender for having committed a “primary designated offence/une infraction designée“ pursuant to s. 752 (

a) Cr.C . He nevertheless contends that the trial judge should have fixed a determinate period of incarceration instead of an indeterminate period. His appeal to this Court is limited to that issue. [ 14 ] Mr. Duperron’s childhood was a troubled one during which his mother was both psychologically and physically violent. Between the ages of 8 and 10 he says he was sexually assaulted by a neighbour, but that his mother didn’t believe him and told him to keep quiet. After having been beaten by his father, at the age of 13, he was placed in a foster home and began committing thefts.

He claims that these circumstances gave rise to fantasies of rape as a young adolescent. [ 15 ] Mr. Duperron sated this anger and bitterness towards his mother against women, and was convicted as a juvenile for theft. He abandoned his formal education after his second year of high school, and was periodically institutionalized until he was 17 years old. He nevertheless succeeded in obtaining a diploma in masonry while incarcerated. [ 16 ] Mr.

Duperron acknowledges having been a drug dealer, having committed numerous thefts for which he was not arrested, as well as having committed two or three other sexual offences against women who were unknown to him. He estimates that his record of criminal convictions represents only 10% of his actual criminality. Mr. Duperron was a consumer of cocaine and PCP between the ages of 14 and 28, however, this practice was apparently not contributive to his criminality. [ 17 ] Mr.

Duperron says he experienced a resurgence of deviant fantasies during the weeks preceding the commission of the offence that has given rise to these proceedings. He attributed this state of mind at that time to the turnover of personnel amongst his parole officers, with whom he claims he was not getting along as well as he had with their predecessors. He also perceived that he was being more closely watched at his place of work, which he contrasted with the excellent relationship he had enjoyed with his previous parole officer.

He did not reveal his concerns of deviant fantasies to his then current parole officers, nor did he take advantage of any of the psychological resources available to him because he feared that doing so would lead to his being re-incarcerated. [ 18 ] On the day of the commission of the offence, Mr. Duperron had met with a parole officer. That evening, around 8:30 p.m. he went for a bicycle ride to unwind, and headed to a wooded area. There he observed the young victim whom he eventually sexually assaulted, during which he forced her to cover her head so as not to be able to identify him.

Once the assault had terminated, he sought to eliminate any trace of his DNA by requiring her to submerge herself in a nearby pool. He then forced her to go to a wooded area in order to give him time to flee before she would be able to call the police. He eventually returned home around 11:00 p.m. [ 19 ] Subsequent to the commission of the offence Mr. Duperron met with a psychologist friend who he says helped him to avoid falling into a new cycle of sexual assaults.

He never mentioned the sexual assault that is the object of these proceedings to any of his entourage prior to his arrest, which took place on September 7, 2010, when DNA evidence established his connection to the sexual assault some three months earlier. [ 20 ] As a result his parole was revoked upon the recommendation of his parole officer, who concluded that despite the apparent progress Mr. Duperron had made, there was no safe way to effectively supervise his release in a manner that would protect society, inasmuch as the mere fact of supervision seemed to be a trigger for his renewed misbehaviour.

The report further noted that the problem of his sexual deviance appeared to be firmly rooted in his personality and thus was more problematic for the future. [ 21 ] A number of expert reports and psychiatric evaluations formed part of the record before the trial judge. [ 22 ] Two of them were prepared by a psychiatrist, Dr. France Proulx, the first of which was dated August 30, 2012. She noted that Mr. Duperron denied having any deviant sexual fantasies, without however disputing any of the underlying relevant facts.

She considered he presented a high risk of reoffending by committing violent sexual offences, and concluded her report by affirming that for

the then present and foreseeable future, there was no real possibility that any form of therapeutic or legal supervision could diminish the risk of his reoffending if he were to be released from custody. [ 23 ] At the request of the Court, Dr. Proulx prepared an updated report on April 23, 2015, in which she summarized psychological assessments of Mr. Duperron during his incarceration. The report acknowledged his near exemplary behaviour that was recognized in a preliminary assessment in March of 2013.

It concluded, however, that based on numerous psychological assessments, there was nevertheless a moderate to high risk of his violent sexual reoffending, and that his continued incarceration was the only available alternative to ensure society’s protection. [ 24 ] A further report in August that year noted Mr. Duperron’s refusal to participate in a psychological assessment that he attributed to the existence of a pending case, as well as his failure to take

part in programs designed to reduce the risk of his reoffending. It was further recommended that before Mr. Duperron could be considered for reduction of his security classification or release from custody, he be required to successfully complete an advanced sexual deviance program and receive psychological treatment with a view to having him understand his most recent offence, with particular attention being paid to anger management, sexual fantasies and his hostilities to women. [ 25 ] Mr.

Duperron nevertheless refused to discuss his sexual deviance because of the pending case against him, all the while stating he would be open to being followed at the Institut Philippe Pinel in the event of his acquittal. His ongoing lack of full collaboration and abject dishonesty as to subjects such as his attraction to pornography also weighed against him. [ 26 ] Two further reports in October of 2014 are of interest. [ 27 ] The first, on October 27, underlined the failure of Mr.

Duperron to apply the measures brought to his attention to control his deviant impulses, lack of transparency, manipulation, tendency to consider himself a victim and difficulty in managing his emotions. The second, on October 30, recommended the discontinuation of private family visits from his female partner, Manon Latulippe, and noted the extent to which she was essentially unaware of Mr. Duperron’s problems that put her in a vulnerable position. [ 28 ] On December 17, 2014, it was decided to keep Mr.

Duperron in custody in light of the insignificant change in his situation since the previous decision to that effect. [ 29 ] Dr. Proulx prepared a further report on April 23, 2015, in which she observed that Mr. Duperron had not followed any treatment program since his re-incarceration in September of 2010, although he claimed to be open to participating in an intense sexual deviance program for which he was on a waiting list. Dr. Proulx also noted that he continued to be romantically involved with his female partner, and with the assistance of a chaplain, he had become better able to manage his frustrations.

He was also working out regularly with a view to control anger and deviant sexual fantasies. [ 30 ] Dr. Proulx thus perceived an improvement in his capacity to be self-critical. Nevertheless, her overall assessment of his risk of reoffending was unchanged. Her report concluded that it was essential that before being released from custody, Mr. Duperron would have to submit to further intense specialized treatment for sexual deviance in which he would collaborate in order to assess the risk of his reoffending and his psychological condition while detained. [ 31 ] Dr.

Louis Morissette prepared a counter-expertise on behalf of Mr. Duperron. He acknowledged that Mr. Duperron showed a higher risk of reoffending than the majority of incarcerated sexual offenders.

Nevertheless, he felt that the risk could be assumed by out- patient follow up after his release from custody in light of his progress in the preceding five years, the natural aging process as he was then approaching 60 years of age, the fact that he was in a stable relationship, his capacity for self-awareness and the risks to which he would be exposed if he were to return to the personality traits that led to his reoffending, such as being a consumer of pornography and experiencing deviant fantasies. [ 32 ] In terms of degree, Dr. Morissette felt that Mr.

Duperron’s most recent sexual assault for which he had pleaded guilty was less catastrophic than the preceding ones. It differed by being less violent than others he had committed, by his having shown empathy to his victim, and that he had continued to function adequately at work. [ 33 ] Several other ordinary witnesses testified on behalf of Mr. Duperron. [ 34 ] Christine Sauvageau, a chaplain who works with detainees to assist them resuming their lives once released from custody, spoke of the regret and shame Mr. Duperron expressed with respect to the impact of his conduct on his victim.

She acknowledged having missed the signals that led to his reoffending. Two fellow detainees, Sylvain Delangis and Michael Quinn, also testified to Mr. Duperron’s genuine regret at the circumstances of his reoffending, and how much he had been helpful to them during their own incarceration. [ 35 ] Mr. Duperron’s older brother Sylvain also testified as to his difficult childhood, and that he became suddenly more impulsive and angered when there had been a change in his parole officer. Since 2010, however, he was nevertheless less aggressive and more willing to discuss his criminality. [ 36 ] Finally, Mr.

Duperron testified in his own defence. He expressed regret for his victims, his failure to have made use of the means to control his impulses and to avoid those factors that were propitious to his reoffending. He acknowledged his sexual deviance, and expressed the desire that if he were to be released from custody, he would want to be a volunteer to help other sexual predators overcome their deviant behaviour. [ 37 ] Mr. Duperron acknowledged that he needed to improve himself and would need to complete or retake appropriate programs before being released from custody.

He was nevertheless unable to indicate when he thought the risk of his reoffending would be reduced to an acceptable extent to contemplate his release from custody. II

THE JUDGMENT OF THE COURT OF QUEBEC [ 38 ] At the outset of his analysis, the trial judge noted that the only question he had to decide was the duration of the order, whether indeterminate [ s.753(4) (

a) Cr.C .] or determinate [ s.753(4) (

b) Cr.C .]. The analytic framework the trial judge adopted is encapsulated in the following extract from his reasons after having cited the relevant statutory provisions of s. 753 Cr.C .: [62] Le Tribunal retient des dispositions de l’alinéa (4.1) de l’

article 753 C.cr en ce qui a trait à la durée de l’ordonnance que le juge ne doit pas émettre une ordonnance de durée indéterminée s’il est convaincu sur les fondements des éléments mis en preuve lors de l’audition de la demande que l’on peut vraisemblablement s’attendre que le fait d’infliger une mesure moins sévère protège le public de façon suffisante. [63] Concrètement, cela fait en sorte que pour ne pas se voir imposer une peine de détention de durée indéterminée, l’accusé doit démontrer qu’il est raisonnable de croire que l’une des mesures moins sévères aux alinéas 4(

b) ou 4(

c) puisse protéger adéquatement le public contre un risque de récidive de sa part. [1] [ 39 ] With a view to attempting to define what Parliament intended by the term “there is a reasonable expectation/on peut vraisemblement s’attendre” ( s. 753(4.1) Cr.C . ), the trial judge mentioned the following factors: • the reoccurrence of the accused’s numerous prior offences; • the particularly brutal and deviant nature of the assaults for which the accused had been convicted; • the number and vulnerability of his victims and the young age of some of them; • the conclusion of all the experts who had examined him of the high risk of his reoffending, which was still present when he was statutorily released in 2009; • the brief period between his release from custody and his reoffending; • the clear inability of the accused to control his deviant sexual impulses; • the accused’s multiple breaches of the court-ordered conditions of release and the lack of his general reliability. [ 40 ] Despite the submissions on behalf of Mr.

Duperron relating to his incarceration since 2010, and without excluding the possibility he might improve over time, the trial judge observed that there was no evidence that tended to demonstrate any possibility that treating him would reduce the risk to the public to a sufficient degree that would justify the imposition of a fixed term sentence followed by a lengthy probationary period. Thus an indeterminate period of incarceration was the only way to insure that Mr. Duperron would not reoffend and inflict severe harm on an innocent victim. III ISSUES IN APPEAL AND ANALYSIS [ 41 ] Mr.

Duperron has submitted four grounds of appeal. Their treatment by this Court is governed by s. 759(3) (

a) Cr.C ., which provides as follows: Disposition of appeal 759

(3) The court of appeal may (

a) allow the appeal and (

i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or (ii) order a new hearing, with any directions that the court considers appropriate; or (…) Décision sur appel 759

(3) La cour d’appel peut prendre l’une des décisions suivantes :

a) admettre l’appel et : o (

i) soit déclarer que le délinquant est ou non un délinquant dangereux ou un délinquant à contrôler ou infliger une peine qui aurait pu être infligée par le tribunal de première instance sous le régime de la présente

partie ou rendre une ordonnance qui aurait pu être ainsi rendue, o (ii) soit ordonner une nouvelle audience conformément aux instructions qu’elle estime appropriées; o […] [ 42 ] Before considering them, however, it is essential to establish the standard of review against which they must be considered. [ 43 ] They have been concisely described by Bélanger, J.A., on behalf of the Court in Francoeur v. R . [2] in citing the majority reasons of Côté, J. in R. v. Boutilier : [3] [30] Un délinquant déclaré dangereux ou à contrôler peut interjeter appel sur toute question de droit, de fait ou mixte de fait et de droit [11] . Le droit d’appel est donc très large.

[31]

Malgré cela, un tribunal d’appel doit faire preuve d’une certaine retenue à l’endroit des peines comportant des déclarations de délinquant dangereux ou à contrôler, quoique le contrôle soit un peu plus rigoureux que le contrôle normal en appel d’une peine [12] . [32] Les erreurs de droit nécessiteront une intervention et une ordonnance de nouvelle audition, sauf si l’erreur n’a donné lieu à aucun tort important ni à aucune erreur judiciaire grave [13] . [33] En l’absence d’une erreur de droit importante, une déclaration de délinquant dangereux est une question de fait et le rôle du tribunal d’appel est de décider si la déclaration est raisonnable [14] .

Le caractère raisonnable est similaire à la norme traditionnellement employée par les tribunaux d’appel lorsqu’ils révisent un verdict en vertu du sous-al. 686(1) a)(

i) C.cr . [15] . I DID THE TRIAL JUDGE ERR IN LAW BY FAILING TO THOROUGHLY EXAMINE WHETHER THE EVIDENCE ESTABLISHED THAT A FIXED TERM PERIOD OF INCARCERATION OF MR. DUPERRON AS A DANGEROUS OFFENDER WOULD ADEQUATELY SATISFY THE PROTECTION OF THE PUBLIC? [ 44 ] I note at the outset that the underlying facts on which the trial judge relied are undisputed. They do not leave any doubt as to Mr. Duperron’s callous conduct that led to the judgment correctly holding him to be a dangerous offender.

His submission in this respect argues that the trial judge failed to take account of the expert evidence led on his behalf that showed that there was a genuine possibility that he could be treated so as to reduce the risk of his reoffending to an acceptable level, such that the trial judge ought to have imposed a determinate as opposed to indeterminate term of incarceration. [ 45 ] In this regard, he contends that the trial judge’s error emerges from the following extracts from his judgment: [75] En dépit des arguments de la défense, le Tribunal considère qu’on ne lui a présenté aucune preuve tendant à démontrer une quelconque possibilité de traiter l’accusé.

De l’avis du Tribunal, la presque totalité de la preuve milite en faveur du contraire.

Conséquemment la première condition du test de McCallum n’est pas remplie. [76] Même si tel avait été le cas, l’historique de l’accusé fait en sorte qu’il est très improbable qu’il ait pu être traité dans un délai de temps défini comme l’exige la deuxième condition du test. [77] Le Tribunal considère qu’il n’y a aucune preuve au dossier démontrant qu’il existe une possibilité réelle que le risque pour le public puisse être abaissé à un niveau acceptable par l’imposition d’une peine de détention d’une durée déterminée, suivi d’une surveillance de longue durée [4] . [ 46 ] The Crown’s response is that the trial judge’s assertion as to the absence of any evidence (“aucune preuve”) must be read as meaning no convincing evidence rather than a total absence of evidence.

I agree with the Crown’ submission in that regard. It is obvious that the trial judge had a full understanding of the evidence that is well-reflected in his judgment. [ 47 ] He recounted the relevant facts at paragraphs 9-60, established the legal framework he would follow at paragraphs 61-66, assessed the possible impact of imposing a determinate term of incarceration instead of an indeterminate one at paragraphs 67-78 and noted a significant number of factors that did not weigh well in Mr.

Duperron’s favour: • his numerous prior offences of a similar nature; • the particularly deviant and brutal circumstances of his most recent sexual assault for which he pleaded guilty; • the number and vulnerability of his victims and the youth of some of them; • the extremely high risk of his reoffending on which there was unanimity among those experts who had assessed him; • his clear inability to control his deviant sexual impulses; • his multiple breaches of court-imposed conditions of release and his general unreliability. [ 48 ] The trial judge further observed at paragraphs 68-78, amongst other considerations, that there was no evidence that the danger to the public occasioned by Mr.

Duperron’s potential release could be reduced to an acceptable level by the imposition of a less severe sentence, that he remained an unacceptable risk to the most vulnerable members of the public and in particular women, and that his imprisonment for an indeterminate period was the only means to protect the public from his reoffending by inflicting significant cruelty on his victims. [ 49 ] There is simply no basis in support of Mr. Duperron’s submission that the trial judge erred in law by failing to consider less restrictive sentencing options in light of the ordinary and expert evidence in the record.

II DID THE TRIAL JUDGE GIVE INSUFFICIENT REASONS FOR DISCARDING THE EXPERT TESTIMONY OF DR. MORISSETTE AND THE EVIDENCE LED ON BEHALF OF MR. DUPERRON? [ 50 ] Mr. Duperron does not challenge the accuracy of the trial judge’s

summary of the evidence. He contends, however, that the trial judge failed to take adequate account of the defence evidence and the expert testimony of Dr. Morissette, which from his perspective were insufficient. That being said, on the assumption for purposes of discussion that the judge’s reasoning was wanting as Mr.

Duperron contends, there is nevertheless no justification for the Court intervening if the conclusions at which the judge arrived emerge clearly from the record. [5] In essence, that is what counsel for the Crown argues in response to this submission. [ 51 ] A thorough examination of the record in this case that includes Mr. Duperron’s lengthy history of sexual deviance amply justifies the conclusion at which the trial judge arrived, however infelicitous Mr. Duperron’s counsel may have found the trial judge’s drafting

skills. [ 52 ] Dr. Morissette identified some factors that from his perspective demonstrated a reduction in the risk of Mr.

Duperron reoffending in violent, non-consensual sexual behaviour: his advanced age; his stable relationship with a marital partner; the existence of a supportive family network; his acknowledgment of the harm inflicted on his most recent victim and regret for having done so; his cessation of drug consumption; his intelligence and learning capacity, as well as the absence of any misbehaviour subsequent to the incident giving rise to the guilty plea in this case. [ 53 ] The Crown contends in this regard that the factors identified by Dr. Morissette existed in many respects when Mr.

Duperron committed the underlying offence, and that he assessed the impact of Mr. Duperron’s advancing age from a statistical perspective rather than being specific to the appellant. In the latter respect, Crown counsel relies on R. v. G.L. [6] [ 54 ] Moreover, the modus operandi Mr. Duperron employed for the sexual assault that resulted in these proceedings bears a striking resemblance to a 1998 assessment that described the manner in which he habitually sexually assaulted his prey: Monsieur Duperron vit constamment des frustrations par rapport à la gent féminine et ce, depuis son enfance.

Lorsqu’une femme crie ou se montre contrôlante, il devient en colère. Dans ces cas, il n’agressera pas nécessairement la femme qui est directement à la source de cette colère mais plutôt une étrangère qu’il croisera sur la rue. Le modus operandi est toujours le même.

Il s’attaque à une femme qu’il rencontre sur la rue (ou dans un parc ou près d’une piste cyclable, etc), il l’amène de force dans un endroit isolé, dans certains cas il peut frapper la victime pour la maîtriser, il la menace de mort, il rabat le chandail de la victime sur son visage, il la force à participer à différents actes de nature sexuelle (fellations, pénétrations, attouchements) et avant de quitter, il lui ordonne de lui laisser du temps pour s’enfuir. [ 55 ] Dr. Morissette also indicated it would be possible to identify the factors that led to the sexual assault for which Mr.

Duperron pleaded guilty in this case and integrate them into an eventual therapeutic follow up upon his release. Noting the numerous programs Mr. Duperron had already undergone while imprisoned, the Crown doubts there are any therapeutic measures that could realistically reduce the risk Mr. Duperron poses were he to be released. [ 56 ] The trial judge clearly rejected the proposition Dr. Morissette advanced. Without having provided an elaborate explanation in this respect, the reasons for doing so emerge clearly from his judgment.

In particular, the trial judge noted the following factors: • the conclusion of all the experts who had occasion to evaluate Mr. Duperron that there was a very high risk of his reoffending, which was still the case when he benefitted from a statutory release in 2009; • the brief interval between his release and his reoffending; • his evident inability to control his deviant sexual impulses. [ 57 ] It is apparent that the trial judge considered of all of the preceding expert assessments of Mr. Duperron, and determined that the factors Dr. Morissette identified that contributed to Mr.

Duperron having reoffended were not useful in assessing whether there was a real possibility to reduce the risk he posed if he were to be released from custody. [ 58 ] Dr. Morissette was also critical of the adequacy of the therapeutic treatment Mr. Duperron received during the five years following his re-incarceration in 2010. This contention amounts to the assertion that Mr. Duperron would not have re-offended had his treatment while incarcerated had been better, which in effect seeks to displace responsibility for his own subsequent misconduct. [ 59 ] The trial judge’s reasons for rejecting Dr.

Morissette’s contentions emerge clearly from the record in light of the uncontradicted evidence that Mr. Duperron’s unreliability and lack of honesty were barriers to a successful therapeutic outcome. Indeed, that is the conclusion the trial judge reached when he wrote that the defence had led no evidence tending to show that it was possible to treat Mr. Duperron. [7] [ 60 ] I would therefore reject this ground of appeal.

III DID THE TRIAL JUDGE ERR BY ESTABLISHING A PRESUMPTION IN FAVOUR OF AN INDETERMINATER PERIOD OF INCARCERATION? [ 61 ] The following extracts from the judgment treat the issue under review: [63] Concrètement, cela fait en sorte que pour ne pas se voir imposer une peine de détention de durée indéterminée, l’accusé doit démontrer qu’il est raisonnable de croire que l’une des mesures moins sévères aux alinéas 4(

b) ou 4(

c) puisse protéger adéquatement le public contre un risque de récidive de sa part. [64] Plus précisément, le Tribunal doit être convaincu que le fait d’imposer une peine moins sévère protègera de façon suffisante le public contre la commission d’un meurtre ou d’autres sévices graves à la personne. [65] Le Tribunal doit donc déterminer au vu de l’ensemble de la preuve qu’il lui a été soumis, si l’imposition d’une peine à durée déterminée suivie d’une surveillance de longue durée (753(4)

b) C.cr ) serait tout aussi à même de protéger le public des risques de récidive de l’accusé que l’imposition d’une peine de détention de durée indéterminée. [66] Le Tribunal reconnaît qu’une peine à durée indéterminée ne peut être imposée à la légère. Il s’agit d’une mesure réservée pour les cas où aucune autre mesure moins sévère ne peut vraisemblablement protéger adéquatement le public. [8] [ 62 ] When read together, it is apparent from the preceding extracts that the trial judge neither intended to nor in fact relied on a presumption of any kind when he imposed the indeterminate period of incarceration. In my view he committed no error of law as

Mr. Duperron asserts. The Crown argues that to the extent the Court might consider the trial judge to have erred in the manner Mr.Duperron asserts, the error is of no significance since an indeterminate period of incarceration is entirely justified by his lengthy recordof convictions for offences of a similar nature. [63] In R. v. Boutilier,[9] Côté, J, writing on behalf of an eight-judge majority of the Supreme Court of Canada, held that ss. 753(4)and (4.1) Cr.C. do not create a presumption in favour of indeterminate incarceration and that an offender subject to its provisions carriesno burden of proof.

That being said, the Crown’s case for an indeterminate period of incarceration need not have relied on anypresumption, even if one had been available, in light of Mr. Duperron’s lengthy criminal record of sexual offences. IV THE LIMITED AVAILABILITY OF APPROPRIATE THERAPY FOR MR.

DUPERRON WITH AN INDETERMINATESENTENCE OF INCARCERATION AND THE SUGGESTION THAT THE COURT SUBSTITUE A SENTENCE OF TEN YEARSAS OF THE EXPIRATION OF HIS MOST RECENT INCARCERATION ON NOVEMBER 11, 2015, FOLLOWED BY PERIOD OF“SURVEILLANCE EN COMMUNAUTÉ” OF 7 TO 10 YEARS. [64] This submission arises from questions raised by the Court at the hearing. In effect, his counsel contends that the practical effectof an indeterminate sentence of incarceration effectively eliminates any possibility he might have to benefit from the kind of specialisedtherapy he requires. This contention flows from an observation of Dr.

Morissette that offenders who are serving a sentence such as theone imposed on Mr. Duperron are a low priority for penitentiary authorities in terms of their access to programs designed to overcomesexual deviance, that 90% of them are in fact never released from custody, and that of those who are released, their average age is 80years. [65] In the absence of any evidence of the realistic possibility to treat Mr.

Duperron successfully within a defined period of time, thetrial judge did not err in rendering the sentencing judgment under review, especially in light of his conclusion of fact that “l’historique del’accusé fait en sorte qu’il est très improbable qu’il est pû être traité dans un délai de temps défini ».[10] [66] The conclusion the trial judge drew from that finding is clearly stated in the following paragraphs: [77] Le Tribunal considère qu’il n’y a aucune preuve au dossier démontrant qu’il existe une possibilité réelle que le risque pour le publicpuisse être abaissé à un niveau acceptable par l’imposition d’une peine de détention d’une durée déterminée, suivi d’une surveillance delongue durée. [78] En conséquence, le Tribunal conclut que l’accusé représente encore aujourd’hui un risque inacceptable pour les plus vulnérables etplus spécifiquement pour les femmes et qu’une incarcération à durée indéterminée est la seule manière d’assurer la protection du publicque l’accusé récidive et commettre des sévices graves à la personne. [67] Other judges have remarked that the realistic chances of a dangerous offender having been sentenced to an indeterminate term ofincarceration actually benefitting from day parole or being released are low.

In R. v. Taylor,[11] Wilson, J. of the Ontario Superior Courtof Justice provided a statistical review that indicated that in the history of the dangerous offender legislation from its enactment until herreasons in 2012, of the 661 decisions the Parole Board rendered, only 49 of 661 day parole applications were granted, and only 24 of2149 full parole applications were granted. [68] In her reasons dissenting in

part in R. v. Boutillier,[12] Karakatstanis, J, noted the high percentage of dangerous offenders whowere serving sentences of indeterminate duration.[13] Her view as to when it should be imposed was clearly set out as follows: [114] Given the severity of indeterminatedetention, this sentence will only beproportionate when the offender is veryblameworthy and the offence is quite grave.Apart perhaps from life imprisonment, anindeterminate sentence is the harshest sanctionavailable under the Criminal Code.

Testimonyin a recent case indicated that only 4-5 percentof dangerous offenders are ever released onparole (R. v. Walsh, 2017 BCCA 195, 348C.C.C. (3d) 1, at para. 22). In addition, they areviewed as low priority for placement intreatment programs in prison, contributing totheir poor prospects for rehabilitation andrelease (ibid.; R. v. Payne (2001), (ON SC), 41 C.R. (5th) 156 (Ont. Sup.Ct.)). In effect, an indeterminate sentenceamounts “to a life sentence with little chance ofparole” (Walsh, at para. 22).

This Court hascharacterized the effects of indeterminatedetention as “profoundly devastating” (Lyons, atp. 339). [114] Étant donné sa gravité, la peine dedétention pour une période indéterminée ne seraproportionnée que dans les cas où la conduite dudélinquant est hautement blâmable etl’infraction très grave. Mis à part peut-êtrel’emprisonnement à perpétuité, la peine dedétention pour une période indéterminée est lapeine la plus sévère que prévoie le Codecriminel.

D’après les témoignages qui ont étéentendus dans une affaire récente, seulement 4-5 pour 100 des délinquants dangereuxbénéficient d’une libération conditionnelle (R. c.Walsh, 2017 BCCA 195, 348 C.C.C. (3d) 1,par. 22). En outre, ils sont considérés commeétant une faible priorité aux fins d’inscriptionaux programmes de traitement offerts en prison,ce qui contribue à leurs faibles perspectives deréadaptation et de libération (ibid.; R. c.Payne (2001), (ON SC), 41C.R. (5th) 156 (C. sup. Ont.)).

Dans les faits, lapeine de détention pour une périodeindéterminée équivaut [traduction] « à une peined’emprisonnement à perpétuité assortie d’unefaible possibilité de libération conditionnelle »(Walsh, par. 22). Notre Cour a qualifié de« profondément bouleversants » (Lyons, p. 339)les effets de la peine de détention pour unepériode indéterminée. [69] More recently Duval Hesler, C.J. remarked in Kritik v. R.[14] that the Crown acknowledged that only 1-2% of dangerous

[ 69 ] More recently Duval Hesler, C.J. remarked in Kritik v.

R . [14] that the Crown acknowledged that only 1-2% of dangerous offenders serving an indeterminate sentence eventually are released from custody. [ 70 ] These statistics illustrate that a sentence of indeterminate detention should be reserved for the rare cases where the preventive detention of the offender from society is justified when the offender is shown to be someone who poses a future and uncontrollable risk of committing violent offences against the person, until such time as the Parole Board decides otherwise pursuant to s. 761(1) Cr.C ., that is, “as soon as possible after the expiration of seven years from the day that person was taken into custody/dès l’expiration d’un délai de sept ans à compter du jour où ces personnes ont été mises sous garde” and no later than every two years thereafter. [ 71 ] This importance of this provision is that it furnishes the constitutional underpinning of a sentence of indeterminate duration following a careful assessment of its applicability.

Reference in this regard may be made to the following observation of Bélanger, J.A. on behalf of the Court in Francoeur v. R : [15] [63] La peine de durée indéterminée constitue la peine la plus grave qui soit, parfois même plus sévère que l’emprisonnement à perpétuité, vu son caractère indéterminé. Il s’agit de la peine la « plus extrême et la plus manifeste de détention préventive » [29] .

Selon la Cour suprême : « [c]ette peine préventive peut être imposée seulement aux délinquants à l’égard desquels l’isolement de la société est un moyen rationnel d’atteindre l’objectif primordial de la sécurité du public » [30] . La constitutionnalité de cette peine repose sur une application soigneuse des critères, qui vise à isoler les délinquants qui représentent un danger pour le futur.

Cette peine ne sera justifiée que si elle vise effectivement à protéger le public [31] . [64] En contrepartie, la situation du délinquant qui s’est vu imposer une peine indéterminée sera réévaluée après sept ans de détention et, par la suite, tous les deux ans, afin d’établir s’il y a lieu de le libérer conformément à la

Loi sur le système correctionnel [32] , et dans quelles conditions, le cas échéant [33] . La Commission peut alors accorder, ou non, une libération conditionnelle. [ 72 ] The ongoing role of the Parole Board in evaluating the status and progress of an offender subject to a sentence of indeterminate detention assures both the protection of the public while regularly assessing the possibility of authorizing an offender being released from custody. The following comments of Lamer, C.J. on behalf of the Supreme Court in R. v. Currie are apposite in this respect: [16]

(2) Abdication of Responsibility 43 The respondent also contends that in his reasons on sentence, the trial judge effectively surrendered his sentencing responsibilities by deferring to the judgment of the National Parole Board under s. 761(1) of the Criminal Code . As I noted above, the trial judge stated: S. 761(1) of the Criminal Code provides a framework by which the National Parole Board considers the incarceration of an individual sentenced to an indeterminate sentence, and in my respectful opinion, it is in that protection of the review set out in s. 761(1) that Mr.

Currie will receive the consideration of his personality disorder, the status of that personality disorder, the status of his sexual deviation, and whether at a time in the future, he no longer is a dangerous offender and a threat to the public. I cannot say that in five years or six years or ten years that will occur. I must therefore sentence Mr. Currie to an indeterminate period in the penitentiary and leave to the evaluation by experts in the National Parole Board and in the penitentiary system the status of Mr. Currie’s treatment and his right to re-enter society.

While it is important to recognize that an indeterminate sentence does not automatically follow a dangerous offender designation, I do not interpret Tobias J.’s reference to the National Parole Board’s intermittent power of review as an abdication of responsibility.

Instead, I view it as a judicial reminder that, although it may be indeterminate, Robert Currie’s sentence need not be permanent. ( 2) L’abdication des responsabilités 43 L’intimé prétend également que, dans ses motifs de sentence, le juge du procès a effectivement abdiqué ses responsabilités en matière de détermination de la peine en s’en remettant au jugement de la Commission nationale des libérations conditionnelles dans le cadre de l’examen prévu au par. 761(1) du Code criminel .

Comme je l’ai souligné précédemment, le juge du procès a dit ceci : [ TRADUCTION ] Le paragraphe 761(1) du Code criminel établit le cadre de l’examen par la Commission nationale des libérations conditionnelles de l’emprisonnement d’une personne condamnée à une peine de détention pour une période indéterminée et, à mon humble avis, c’est la protection découlant de cet examen prévu au par. 761(1) qui assure à M.

Currie qu’il sera tenu compte de ses troubles de la personnalité, de l’état de ces troubles, de l’état de sa déviation sexuelle et de la possibilité qu’à un certain moment dans le futur il ne soit plus un délinquant dangereux ni une menace pour la société. Je suis incapable de dire si cela se produira dans cinq ans, dans six ans ou dans dix ans. Je dois par conséquent condamner M. Currie à une peine de détention dans un pénitencier pour une période indéterminée et laisser aux experts de la Commission nationale des libérations conditionnelles et du système pénitentiaire le soin d’évaluer l’état du traitement de M.

Currie et son droit de réintégrer la société. Même s’il importe de reconnaître qu’une peine de détention pour une période indéterminée n’accompagne pas automatiquement une déclaration de délinquant dangereux, je n’interprète pas la référence du juge Tobias au pouvoir de révision périodique de la Commission nationale des libérations conditionnelles comme étant une abdication de ses responsabilités.

Il s’agit plutôt d’un rappel par le tribunal du fait que, même si elle est indéterminée, la peine de Robert Currie n’est pas nécessairement permanente. [ 73 ] In this regard, it is important to take account of the consensus of Mr. Duperron’s most recent treatment and rehabilitation perspectives. They propose he successfully complete intense specialized treatment in sexual deviance before being considered for any form of release from custody, since only a long term evaluation will be able to measure whether he has genuinely changed. [ 74 ] Dr.

Morissette’s contrary opinion is not based on any specific form of treatment having as its objective the reduction of Mr. Duperron’s risk of reoffending. To be perfectly blunt, his opinion represents not much more than hope and wishful thinking inasmuch as it relies on Mr. Duperron adopting a positive attitude. [ 75 ] That being said, the Court lacks the authority to order any particular type of program when sentencing a dangerous offender. Whatever such programs may exist and whether any particular offender may benefit from them are the responsibility of penitentiary authorities.

The role of a trial judge and an appellate court in circumstances such as those of Mr. Duperron, who is a recidivist who pleaded guilty to the underlying offence of aggravated sexual assault, is to prioritize the protection of the public in the sentencing process, leaving it to penitentiary authorities to develop and implement programs designed to enhance the rehabilitation of offenders in their custody. V. PROPOSED DISPOSITION [ 76 ] I would dismiss the appeal. ALLAN R. HILTON, J.A.