HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 329

ONTARIO COURT OF JUSTICE CITATION : R. v. Ariyanayagam , 2019 ONCJ 329 DATE : May 16, 2019 Scarborough - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — THUSANTH ARIYANAYAGAM ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown J. Battersby and S. Rogers For the Defendant H. Tse Heard: January 29, February 14, May 8, 2018; February 25 and 26; March 25 and 26, 2019 REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] On January 29, 2018 Mr.

Ariyanayagam pleaded guilty before me to three counts of assault, one count of assault with a weapon, and two counts of failing to comply with a recognizance. [ 2 ] The Crown sought an assessment order pursuant to s. 752.1 of the Criminal Code , which I made on May 9, 2018. [ 3 ] Pursuant to my order, Mr. Ariyanayagam was examined by Dr. Philip Klassen who reported to me by letter dated September 17, 2018. [ 4 ] On February 13, 2019, the Crown served formal notice of its intention to seek a dangerous offender designation against the accused pursuant to s. 753 of the Criminal Code . Mr.

Rogers, for the Crown, in written and oral argument has continued to take that

position. [ 5 ] Mr. Tse, on behalf of the accused, resists the dangerous offender designation, yet concedes that the accused meets the criteria for designation as a long-term offender pursuant to s. 753.1. [ 6 ] Whether Mr. Ariyanayagam is designated a dangerous or a long-term offender, counsel agree that he should be sentenced to a two-year term of incarceration followed by a long-term supervision order. [ 7 ] On February 25 and 26, 2019 Dr. Klassen testified, as did Cathy Phillips, a supervisor for Correctional Services Canada, and Brad Tamscu, the overseer of provincial corrections. B.

THE CIRCUMSTANCES OF THE OFFENCES [ 8 ] On February 14, 2018, a detailed agreed statement of fact was filed as exhibit 1 on these proceedings. [ 9 ] In October, 2015 the offender was charged with a number of offences and was released on a recognizance with his father as surety. One of the conditions of the release order was that the offender attend for medical or psychiatric appointments as directed by his surety. [ 10 ] On March 18, 2016, shortly before 10:00 pm Sameah Noori returned to her apartment building at 3380 Eglinton Avenue East in Toronto. Mr.

Ariyanayagam, who did not live there, followed her into the building and got on the elevator with her. He pressed the Penthouse button and she pushed the button for the 18 th floor, where she lived. [ 11 ] Once at the 18 th floor, the offender followed Ms. Noori off the elevator and, several steps down the hall, grabbed her with both hands, one over her mouth, the other on her torso. She struggled and screamed. The offender ran off, using the stairwell. [ 12 ] On April 11, 2016 the offender went to the apartment building at 15 Cougar Court where he did not reside.

He gained entry by following a young woman through the door. He followed her onto the elevator, along with others. Shortly after 3:00 pm Nigisti Woldetinsae entered the building. She boarded the elevator and the offender got on behind her. The offender followed Ms. Woldetinsae off the elevator on the 18 th floor and, after waiting for others to board the elevator, chased her as she went to her apartment unit.

She turned to face him and he shoved her on the shoulder then ran past her. [ 13 ] At 3:43 pm the offender re-entered the building and then fled when approached by a building manager. [ 14 ] At 8:12 pm on April 18, 2016 Mr. Ariyanayagam went to the apartment building at 301 Prudential Drive, where he did not reside, and slipped into the building. He loitered on the premises, getting on and off the elevator several times with various women. At 8:48 pm Arabi Rajan entered the building and got on the elevator. The offender followed her onto the elevator and then followed her off the elevator on the 10 th floor.

He grabbed her from behind and covered her mouth with his hand. She banged on the door of her apartment, screamed for her mother and struggled with the offender. He ran to the stairwell and fled the building. [ 15 ] Two days later the offender was arrested and was released on a recognizance two weeks later. Conditions included house arrest and a weapons prohibition. The house arrest condition was later replaced with an 11 pm – 6 am curfew. [ 16 ] In the early morning hours of June 4, 2017 Mr.

Ariyanayagam made his way to 555 Brimorton Drive, where he did not reside, and was captured on video roaming the hallways of the building throughout the night. At approximately 7:45 am, Sejal Patel left her apartment on the 3 rd floor and took the stairs to the main floor. She returned shortly with a bag of milk she had purchased. She followed the offender onto an elevator. He did not press a button, but she pressed #3. He then pressed the button for a higher floor. When Ms. Patel got off the elevator on the 3 rd floor, Mr. Ariyanayagam followed her.

While doing so he took a pellet gun out of his knapsack and pointed it at her as she walked away from him. He fired at her twice, then fled discarding the weapon. One of the pellets had struck, and become embedded in the cell phone Ms. Patel had been carrying. [ 17 ] On June 21, 2017 the offender was arrested. He was released on bail on June 27, 2017, but was taken back into custody on or about July 25, 2017 pursuant to the order of Molloy J. He has remained in custody since that day. C. THE CIRCUMSTANCES OF THE OFFENDER (

a) Introduction [ 18 ] Most of Mr. Ariyanayagam’s history is revealed in the report and testimony of Dr. Klassen who interviewed the offender for approximately four hours. He also spoke with the offender’s family and reviewed prior medical records from hospitals and treating physicians. [ 19 ] These medical records are another independent source of information concerning the offender. [ 20 ] The offender has no prior criminal record. He was born in Toronto on December 6, 1994, and is now 24 years of age. At the time he committed the offences in question he was living with his mother, father and sister.

He was partially employed as a forklift operator. [ 21 ] Mr. Ariyanayagam had a relatively unremarkable upbringing although he reported being physically abused by his father on a “handful” of occasions. There is no family history of mental disorder, addictions, criminality or suicide. [ 22 ] The offender was a fairly good student. He attended university but withdrew in the latter part of his second year and never returned. He was first employed at age 17, but never full time.

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b) The Offender’s Medical and Substance Abuse History [ 23 ] The offender began using alcohol at age 14 and it soon became a problem for him. He admits that alcohol disinhibits him especially as regards his tendency to sexually offend. He has used cocaine and MDMA socially but, since age 14 has been a habitual user of marijuana, sometimes consuming more than 2 grams per day. This has contributed to his paranoia and has been associated with his hearing voices. (

c) The Offender’s Mental Health History [ 24 ] Mr. Ariyanayagam began experiencing hallucinations at age 19. He was diagnosed sometime around 2014 as suffering either from schizophrenia or from a schizoaffective disorder. On several occasions he was admitted into hospital as a result of bizarre and violent behaviour at home, as witnessed by his family. [ 25 ] The offender has been treated for schizophrenia with anti-psychotic drugs but that treatment has been sporadic at best. When properly medicated, however, the offender’s psychosis responds well to treatment. (

d) The Offender’s Sexual History [ 26 ] According to the offender himself, he began having violent sexual thoughts at age 21. He fantasized and masturbated to thoughts of raping women. Sometimes his thoughts would extend to killing women then having sex with their dead bodies. He denies ever having sexually assaulting any women other than those involved in the index offences, nor is there any evidence of any other sexual assaults. He refers to his own libido as medium to high, admitting that he has at least three orgasms per day. [ 27 ] When off his medication, sometime around 2016, Mr.

Ariyanayagam acquired three pellet guns with a view to perpetrating sexual assaults. He admitted to Dr. Klassen that he had been to more than 40 buildings to loiter in the same manner as he did in committing the offences here in question. [ 28 ] Phallometric testing of the offender demonstrates that he has a marked preference for coercive, non-consenting, heterosexual activity. (

e) Dr. Klassen’s Opinion [ 29 ] Dr. Klassen’s opinion as to Mr. Ariyanayagam’s mental health status and his assessment of the risk posed by Mr. Ariyanayagam were expressed to the court in his report and his testimony. I was impressed with the great care and careful deliberation brought to bear by Dr. Klassen. His evidence was not challenged by either party and I accept his findings and opinions without hesitation. [ 30 ] Mr. Ariyanayagam suffers from a paraphilic coercive disorder. He also suffers from schizophrenia. Both of these problems are exacerbated by his use of drugs and alcohol.

The offender does not suffer from a personality disorder. Nor is he a psychopath. [ 31 ] The most significant of the offender’s difficulties is his paraphilia. The offender only began to act out his coercive fantasies when he became disinhibited by the onset of his schizophrenia, made worse still by his use of alcohol, marijuana and cocaine and certain psychosocial stressors. [ 32 ] The offender’s paraphilic coercive disorder will never go away. It can, however be controlled by either chemical castration, or intensive sex offender programming.

In order to effectively prevent future acting out of his paraphilia it is essential that the offender properly manage his schizophrenia and abstain from drug use. Addressing other stressors in his life will also decrease the likelihood of further sexual offences. [ 33 ] Dr. Klassen believes that the best form of treatment for Mr. Ariyanayagam’s paraphilia is the High Intensity Sex Offender Program offered by the Correctional Service of Canada, followed by a Long Term Supervision Order.

Treatment for his schizophrenia and counselling regarding drug use are both critical to the successful future management of the offender. [ 34 ] Several psychological tests were performed on the offender with a view to assessing the risk that the offender will reoffend. One such test is the Sex Offender Risk Assessment Guide, also known as the “SORAG”. Mr. Ariyanayagam scored a 10, placing him in the 57 th percentile, meaning that out of 100 randomly selected individuals, 57 of that 100 would be at a lower risk of reoffending than the offender himself. Adjusted for the more modern

interpretation of this test, Dr. Klassen opined that the results suggest that the risk of violent or sexual recidivism on the part of the offender, if treated for his schizophrenia, is between 40 and 50%. Another test known as the “Static-99R” was administered. The results suggest that Mr. Ariyanayagam is 2.7 times more likely to reoffend sexually or violently than the “average” sex offender. [ 35 ] Qualitatively, Dr. Klassen would describe the offender’s risk of future sexual offences as “moderately high”. Putting it another way, Dr.

Klassen opined that from a purely psychiatric perspective, the offender presents with a “substantial risk of re-offence, but not a probability of re-offence, i.e. the probability of his reoffending sexually or violently is between 40 and 50%.” [ 36 ] As concerns risk management, Dr. Klassen noted that the offender is bright and reasonably well educated. He enjoys a good deal of family support and they are motivated to assist him.

He reiterated that another important consideration in support of the likelihood of control in the community is the fact that the offender does not suffer from a personality disorder. [ 37 ] All things considered, Dr. Klassen is of the opinion that with the proper supports, as outlined above, there is “a reasonable possibility of eventual control in the community”. D. ANALYSIS

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a) What Must the Crown Prove in Seeking a Dangerous Offender Designation? [38] Section 753(1) lists the statutory requirements that must be met before a court must designate an offender as dangerous. 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find theoffender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of thedefinition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being ofother persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showinga failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychologicaldamage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms apart, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to otherpersons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutalnature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards ofbehavioural restraint; or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of thedefinition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in thecommission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and alikelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. (

b) What is Not in Dispute [39] Mr. Tse concedes that the offences in question are serious personal injury offences and that Mr. Ariyanayagam hasdemonstrated a pattern of repetitive behaviour showing a failure to restrain his behaviour. These concessions are well founded in theevidence. (

c) What is in dispute [40] Mr. Tse and Mr. Rogers disagree as to whether the Crown has demonstrated beyond a reasonable doubt that the offender’sbehaviour “demonstrates a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on otherpersons, through failure in the future to restrain his or her behaviour”. (

d) The Governing Caselaw [41] The application of section 753(1) involves two phases: (1) a designation phase, and (2) a penalty phase. The leading case in theinterpretation of s. 753(1) is the Supreme Court’s judgment in R. v. Boutilier, 2017 SCC 64. Citing R. v.

Lyons, (SCC),[1987] 2 S.C.R. 309, Côté J. explained that whether an offender is to be designated as dangerous comes down to the need for the Crownto prove the following: (1) the offender has been convicted of, and has to be sentenced for, a "serious personal injury offence"; (2) this predicate offence is partof a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338).The last three criteria are part of the assessment of the "threat" posed by the offender.

The last two of these are future-oriented, andJustice La Forest explained them as follows: Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which thesection seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences,conduct causing injury, pain or other evil to other persons.

Also explicit in one form or another in each subparagraph of s. [688, now 753]is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasisadded by Côté J.] Boutilier, supra, at para. 26.

[ 42 ] According to Côté J., “intractable conduct” means “behaviour that the offender is unable to surmount.” This necessarily implies that the Court must inquire into the offender’s treatment prospects. As she says, “a prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention”.

Boutilier , supra at para. 27, and 45-46 . [ 43 ] She goes on to say that “offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable”. Boutilier , supra, at para. 45 [ 44 ] The Merriam-Webster Dictionary defines “intractable” as “ not easily governed, managed, or directed”. Intractability is thus a matter of degree.

Indeed, several Canadian cases have explained that the Crown need not demonstrate “absolute intractability”. See R. v. B.A.P ., 2005 BCCA 121 at paras. 26 and 30 ; R. v. Allen , 2015 BCCA 229 . Logically, this must be the case. If intractability were not a matter of degree, but rather an all or nothing concept meaning “untreatable”, the assessment of future risk that is mandated at the penalty phase would be impossible.

Anyone designated a dangerous offender would by definition be untreatable. [ 45 ] In my opinion, in determining just how intractable an offender’s criminal conduct must be before he is designated a dangerous offender, the Court must be guided by the words used by Côté J. when she warns that “only offenders who pose a tremendous future risk” should be designated as dangerous offenders. Boutilier , supra , at para. 46 (emphasis added) [ 46 ] Mr. Ariyanayagam presents a serious clinical challenge, but I am not convinced that he poses a “tremendous future risk”.

His type of schizophrenia responds well to treatment, and there is no evidence of him having offended before the onset of his schizophrenia, even though his paraphilic disorder is of long standing. I am also satisfied that the treatment required for control of Mr. Ariyanayagam is available. [ 47 ] As Dr. Klassen opined, all things considered, there is “a reasonable possibility of eventual control [of Mr. Ariyanayagam] in the community”. He does not pose a “tremendous future risk”.

The Crown has failed to convince me that he is a dangerous offender as defined in the Criminal Code . [ 48 ] I am, however, convinced beyond a reasonable doubt that Mr. Ariyanayagam meets the criteria for designation as a long-term offender, pursuant to the operation of sections 753(5)(

a) and 753.1. Indeed, counsel for Mr. Ariyanayagam invites me to make this finding. (

e) What is the Appropriate Penalty? [ 49 ]

Section 753.1(3) provides that where an offender has been designated a long-term offender, the court shall: (

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

b) Order that the offender be subject to long-term supervision for a period that does not exceed 10 years. [ 50 ] Counsel agree that a term of incarceration of a further two years is appropriate, and I concur. While that equates to a notional sentence of 4.8 years, taking into account his 683 days of presentence custody, having heard from Cathy Phillips from Correctional Services Canada, I am satisfied that a sentence of a further two years is required to provide Mr. Ariyanayagam with access to the High Intensity Sex Offender Program Dr.

Klassen believes is essential, and that is only available in the penitentiary. [ 51 ] I acknowledge that the notional sentence of 4.8 years is certainly much longer than the sentence of imprisonment that would ordinarily be imposed on a first offender such as Mr. Ariyanayagam, however, the principle goal in sentencing a long-term offender such as Mr. Ariyanayagam under

Part XXIV of the Criminal Code is to “ensure that the public is adequately protected against the likelihood of violent recidivism by one with an established record of violence”, which distinguishes it from sentencing proceedings under

Part XXIII. See R. v. Spilman , 2018 ONCA 551 at para 22 ; R. v. Walters , 2018 ONCA 391 at para 13 . [ 52 ] As for the appropriate length of the long-term supervision order, I am of the view that a 10-year term is in order. The Parole Board, who will be in charge of supervising the offender while subject to the order, enjoys a significant amount of discretion in the management of the offender during his supervision.

Moreover, pursuant to s. 753.2(3) the offender, or the Parole Board, are entitled to apply to the Superior Court for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending. There is no mechanism, however, for extending the length of the long-term supervision order if I impose one that turns out not to be long enough. E. CONCLUSION [ 53 ] Mr. Ariyanayagam is designated a long-term offender. He is sentenced to a further term of two years in prison.

Upon his release he will be subject to a 10-year Long Term Supervision Order. Released on May 16, 2019

__________________________ Justice Russell Silverstein