2011 QCCQ 6887, 2011 QCCQ 6887

R. c. Topping 2011 QCCA 6887 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC LOCALITY OF QUEBEC "Criminal and Penal Division" No.: 200-01-132745-096 DATE: May 27, 2011 ______________________________________________________________________ THE HONOURABLE ALAIN MORAND, J.C.Q., PRESIDING THE QUEEN Applicant - Prosecutrix v. JAMES TOPPPING Respondent - Accused ______________________________________________________________________ DECISION ON AN APPLICATION UNDER

SECTION 753 OF THE CRIMINAL CODE TO DECLARE THE RESPONDENT A DANGEROUS OFFENDER (rendered orally at the hearing) ______________________________________________________________________ 1. THE APPLICATION AND THE EVIDENCE OF THE PROSECUTION [ 1 ] On April 19, 2010, the accused, aged 40, pleaded guilty to, inter alia , two counts of robbery and assault causing bodily harm against the same victim, V.

L., on August 28, 2007. [ 2 ] According to the statement of fact presented by the criminal and penal prosecutor, the events took place as follows: − On August 28, 2007, around 1:20 a.m., the victim took the Faubourg stairs to get home. − On one of the landings midway, she was accosted by the accused, who ordered her to open her handbag. − She refused, taking a step back and telling him that she had no money. − At that point, he grabbed her forcefully by the throat, pushed her against a bench, repeated his demand for money, and insisted that she open her handbag, unbutton her blouse, and lower her underwear. − Although she could barely breathe, she somehow managed to cry for help. − He then punched her in the face four or five times, while she tried to protect and defend herself as best she could. − The incident lasted five to ten minutes.

When the accused, who had begun to move away slowly, saw a young man on his way to help the victim, he ran away, but not before the witness was able to tear off a piece of his sweater, which would later be used to identify him by means of a DNA analysis. − As a result of this assault, the victim sustained injuries to her hand, neck, and jaw, as well as a displaced fracture of her nasal bones, which required surgery under general anaesthesia.

She also suffered property losses as well as inconvenience and the following psychological after-effects, some of which persist more than three years later: inability to live alone; fear and anxiety; frequent moves; nightmares, insomnia, sadness, and fear of unknown men; hypervigilance; loss of concentration; headaches and memory loss; stopping work; medication and psychotherapy. [ 3 ] The following is the accused's criminal record, presented chronologically, as well as the other relevant stages of his criminal life and judicial history:

Age 16 committed to custody for ten months for armed sexual assault and robbery with a knife Age 17 committed to custody for two months for assault against staff at a rehabilitation centre and for the sexual touching of a social worker January 11, 1989 Youth Court, simple assault suspended sentence, four months' probation August 2, 1991 1. robbery 2. breaking and entering a dwelling- house and committing an indictable offence 3. theft under $1,000 concurrent six-month sentences; two years' probation August 20, 1992 1. sexual assault causing bodily harm five years after pre- sentencing custody equivalent to seven months 2. robbery three concurrent years 3. failure to comply with a probation order two concurrent months 4. mischief under $1,000 (two counts) four concurrent months March 1, 1997 statutory release and, as of April 1, 1997, returned to custody for two consecutive periods for breach of conditions until the end of his sentence on August 21, 1997 August 17, 1998 simple possession of narcotics twenty days October 29, 1998 1. sexual assault with a weapon 2. kidnapping 3. unlawful anal intercourse eight years concurrent after pre-sentencing custody equivalent to eleven months; recommendation for the Institut Philippe-Pinel December 7, 2006 released from the Port-Cartier penitentiary at the end of his sentence and, pursuant to an order of the court, entered into a recognizance pursuant to

section 810.2 Cr. C . under a number of restrictive conditions for one year June 15, 2007 arrest and appearance for failure to comply with a condition of his undertaking, to wit: alcohol consumption, contrary to

section 811 Cr. C. June 20, 2007 provisional release with undertaking for this charge

August 28, 2007 • assault causing bodily harm and robbery against V. L. (as described above); • accordingly: two counts for breach of his recognizance of December 7, 2006, contrary to

section 811 Cr. C. , namely, failure to keep the peace and breach of house arrest (time of entry and exit between 11 p.m. and 7 a.m.) (he was not arrested or charged at that time) October 2, 2007 • arrest and appearance on four counts of breach of recognizance under

section 810.2 Cr. C. and two counts for breach of the conditions of his provisional release, all of these offences relating to his consumption of intoxicants, presence in a bar, and failure to comply with his curfew, on different dates; • at the time, the accused remained in detention December 21, 2007 pleaded guilty to the seven charges pending, namely, five counts of breach of

section 811 Cr. C . and two counts of breach of subsection 145(3) Cr.

C. concurrent two-month sentences after pre- sentencing custody equivalent to six months; three years' probation with an eighteen-month follow- up January 2008 release from prison upon completion of his sentence July 23, 2008 arrest in the act and appearance for breaking and entering a dwelling- house with intent to commit an indictable offence therein August 7, 2008 provisional release for this last charge as part of a close treatment at Maison Jean-Lepage January 15, 2009 arrest and appearance for the offences of August 28, 2007, and provisional release on the same conditions April 19, 2010 guilty plea: • to pending charges of robbery and assault causing bodily harm and failure to comply with an undertaking, contrary to

section 811 Cr. C . (two counts), offences committed on August 28, 2007, already described; • to the charge of breaking and entering a dwelling-house with intent to commit an indictable offence therein, on July 23, 2008: • after the acceptance of the accused's guilty pleas, an order for provisional detention was made following an application by the prosecution under subparagraph 523(1)( b )(ii) Cr. C . • this application concerns solely the two designated offences within the meaning of

section 752 Cr. C. , namely, robbery and assault causing bodily harm, even though the accused will subsequently be sentenced for the other three offences.

[ 4 ] Following the guilty plea in respect of the two offences at issue in the application under

section 753 Cr. C ., counsel for the prosecution argued, pursuant to

section 752.01 Cr. C ., that not only do the two offences constitute serious personal injury offences as well as designated offences, but the accused also has two prior convictions for designated offences and was sentenced to more than two years' imprisonment in each case. Counsel for the prosecution then submitted an application for remand for assessment under

section 752.1(1) Cr. C . [ 5 ] Subsequently, the Court found that there were reasonable grounds to believe that the accused could be declared a dangerous offender or a long-term offender and ordered him remanded to the Institut Philippe-Pinel for assessment by experts. [ 6 ] At the hearing of the application, which was filed on November 12, 2010, the prosecution, in order to establish the degree of dangerousness of the accused as well as the seriousness and consequences of his actions, adduced the testimony of the victim V.

L., 34 years old, who confirmed the statement of facts and added that the accused, although not under the influence of alcohol, appeared to be disorganized and incoherent, since he did not even try to take her money or touch her in any other way. [ 7 ] With the same purpose in mind, counsel for the prosecution called the victim of the offences of sexual assault with a weapon, kidnapping, and unlawful anal intercourse, committed on May 8, 1998.

Her version is as follows: − Eighteen years old at the time, she was single, lived alone, and had for the last four or five months been working in a bar from 5:00 p.m. to closing time, three days a week. − The accused, a friend of people in the village, frequented the establishment every day. He played video poker and other gambling machines, but he never drank alcohol. − On May 8, 1998, she closed the bar around 1:30 a.m.

The accused asked her to drive him to another establishment, approximately ten minutes away by car, to continue the evening. − She agreed, since she was not afraid of him in any way; she knew him and had never had any problems with him before. − On the way there, he asked her to stop because he felt sick to his stomach.

When he got back into the car, he placed a knife to her throat and, in a very aggressive and contemptuous tone of voice, ordered her to undress. − He then ordered her to masturbate and proceeded to penetrate her vaginally and anally, keeping his knife nearby the whole time. − Subsequently, he took the wheel of the car and drove her to a cottage on an isolated road in the middle of the woods. − For approximately three hours, the accused penetrated the victim on several occasions, despite her tears and supplications, ordering her to masturbate while making indecent and insulting comments to her. − Around 5:00 a.m., he let her go, and she agreed to drive him to a bar. − As a result of these events, she suffered anal tearing and felt pain in her ribs for a long time. − Moreover, she suffered and still suffers the following inconveniences and psychological after-effects: ▪ the feeling of having lost her soul; ▪ fear; ▪ the inability to go out alone in the evening; ▪ fear of men she does not know; ▪ for four years, she wore a personal alarm directly connected to the police central monitoring station; ▪ she had to undergo an AIDS screening program; ▪ twelve years later, she is still unable to live alone; ▪ the smallest sound frightens her; ▪ she has needed a great deal of psychological counselling; ▪ sexual intercourse is difficult for her; ▪ she has needed to take medications, including antidepressants; ▪ she was severely traumatized. [ 8 ] On September 24, 2010, Ms.

Tiziana Costi, a psychologist at the Institut Philippe-Pinel, filed her assessment report as evidence before the Court, as required for the consideration of the Crown's application to have the accused declared a dangerous offender. [ 9 ] The following is a broad outline of her expert assessment and its findings, as well as her testimony before the Court: − The accused presents with an issue similar to psychopathy, which is characterized by antisocial personality traits and behaviour.

− He displays a lack of remorse, true empathy, and guilt, along with a tendency to manipulate and an inability to accept full responsibility for his actions, tending instead to blame causes such as drugs or alcohol; − The dangerousness of his antisocial acts is high, as he displays most of the factors of social deviance and antisocial behaviour, including the need to take drugs, impulsive behaviour, irresponsibility, lack of self-control, sexual promiscuity, various types of significant delinquent behaviour including breach of court orders, a parasitic lifestyle, and a lack of realistic long-term goals. − The accused presents with borderline antisocial personality disorder with dependence on intoxicants. − He is immature, aggressive, and impulsive, with a low tolerance for frustration and a tendency to deny his problems and blame others. − When frustrated, he can become physically aggressive, especially against women. − He is a poor candidate for psychotherapy because he is not introspective and tends to resort to denial, and because his manipulative and angry behaviour could interfere with treatment; − The results on the actuarial scales indicate a very high risk of sexual and violent recidivism. − He is a high-risk individual for whom past treatments and community supervision have proved to be ineffective.

This indicates an elevated need for supervision. − Regarding his psychosocial adaptation and his psychopathic traits, he displays sexual deviance, substance addiction, interpersonal and occupational issues, violence, other types of criminal offences, and prior failure of supervision. − Regarding his plans for the future, he has a few that are realistic, and he states that he needs and is interested in interventions that, in his view, seem to be limited to halfway houses. − He is relatively intelligent and has developed a certain amount of self-control over the last two years.

He states that he is motivated to follow certain treatments.

He has a few life goals and he is starting to have a social network. − The results of the penile plethysmography of March 14, 2010, indicate that he is not unequivocally deviant, which is the opposite of what was indicated by the same test performed on April 21, 1999; in other words, his significant reactions to consenting relations are now greater than his reactions to humiliation and rape. − Gaétan Mayer, therapeutic program supervisor at Maison Jean-Lepage and specialist in the treatment of persons who have had run-ins with the law and who present with addiction and behavioural problems, states that, over the course of his twenty-month stay, the accused became increasingly involved in his social reintegration treatment.

The accused was eventually able to accept that he could be treated and, because of the high degree of reliability he had displayed, the team was willing to continue working with him for a few more years. − Although in the past he tended to sabotage treatments, since his most recent offence he seems to be displaying a certain degree of uneasiness and has been able to explore emotions and make some connections while at the Maison Jean-Lepage. He is easily frustrated and impulsive, however, and he does not seem to realize the seriousness of his actions or his issues.

He is focused only on his own needs and on how things will affect him, and he is unable to put himself in another's shoes. − He has always run away from any feelings of distress due to a childhood marked by abandonment and drug and gambling abuse. Rage, particularly against the female figures who made him suffer, is still very present in him, and it has taken the form of sexual aggression. − The accused has made some progress, but still has a long way to go.

He greatly needs to work on his self esteem, substance abuse, and pathological gambling problems, as well as on the management of his emotions, violent urges, and sexual issues. This will requires a high level of supervision; otherwise, the risk will not be controllable in the community.

He is not, however, at the same point as he was during his most recent periods of incarceration. − In conclusion, he should be declared a long-term offender for at least five years and, upon his release, placed in a highly structured and supervised environment because of his significant need for long-term supervision and treatment. [ 10 ] In preparing their respective expert reports, Ms. Tiziana Costi, psychologist and expert for the prosecution, and Dr.

Marie- Frédérique Allard, physician-psychiatrist and expert for the defence, considered, among other things, assessments and reports compiled by staff and professionals from Correctional Service of Canada and the National Parole Board, who gathered their information from the institutions in which the accused served the eight-year sentence imposed on him on October 29, 1988. [ 11 ] The prosecution adduced all of this relevant documentation, to which it refers frequently in its written proceedings under

section 753 Cr. C . and its oral arguments. The Court will return to this. [ 12 ] Counsel for the prosecution completed its case with the testimony of François Morasse, parole officer supervisor for Correctional Service of Canada, who explained sentence management for dangerous and long-term offenders and noted that Maison Jean-Lepage is not the type of establishment where the accused could live under long-term supervision under the control of the National Parole Board. 2 - ARGUMENTS OF THE PROSECUTION

[ 13 ] Relying on the evidence described above, the criminal and penal prosecutor makes the following arguments in support of his application for the accused to be declared a dangerous offender: − Under subsection 753(1.1) Cr. C . , unless the contrary is proved on a balance of probabilities, the accused is presumed to be a dangerous offender within the meaning of section 753(1)(

a) because the assault causing bodily harm is a designated offence under

section 752 that carries a sentence of more than two years due to the many aggravating circumstances including his criminal record, and because he has already been convicted for two primary offences, each carrying a sentence of at least two years' imprisonment. − Regardless of this legal presumption , the accused should be declared a dangerous offender pursuant to the criteria in section 753(1)(

a) because the offences he committed constitute serious personal injury offences within the meaning of

section 752(

a) and because the accused represents a danger to the life, safety, or physical well-being of others on the basis of evidence establishing a pattern of repetitive behaviour, of which the offences at issue form a part, showing an inability to restrain his behaviour and a likelihood of causing death or injury to other persons, or inflicting serious psychological damage on other persons, as well as a substantial degree of indifference respecting the reasonably foreseeable consequences of his behaviour. ▪ Between the ages of eleven and thirty-seven, he committed nine or ten sexual assaults, some of which were brought before a court, some of which were not. ▪ He has displayed inappropriate sexual behaviour, both inside and outside a prison setting. ▪ On August 20, 1992, and October 29, 1998, he received two penitentiary sentences of five and eight years respectively for two sexual assaults, both committed only a few months after his release upon completing an earlier prison sentence.

On August 28, 2007, he committed the present offences against V. L., again only nine months after his release from prison after completing his eight-year sentence, which was handed down on October 29, 1998. ▪ In the short periods of time since August 2, 1991 – i.e., the last seventeen years or so – that the accused has not been in prison, he has, either by committing these sexual and physical assaults or otherwise, breached all the orders that had been made against him, whether probation orders, statutory release conditions, undertakings under

section 810.2, or provisional release conditions. ▪ In prison, he attended three treatment programs for sexual offenders that he abandoned or that proved to be ineffective when he subsequently re-offended. ▪ According to Ms. Costi, he does not recognize his sexual issues.

He has serious impulse control problems, presents an elevated risk of re-offending, and so far neither treatment nor supervision has been effective. ▪ On two occasions while he was in prison, in 1998 and 2003, he stated that he did not understand his reactions to women, that he did not know whether he would do the same thing again, and that he scared himself and actually preferred to remain in custody for the moment. ▪ Nothing – be it the threat of harsher sentences, specialized treatment, or legal supervision – has prevented him from re-offending, with serious consequences for his victims. ▪ The commission of these numerous sexual and physical assaults, his attitude toward his victims, the seriousness and nature of his actions, and indeed the entire situation demonstrate his substantial degree of indifference to the reasonably foreseeable and very serious consequences of his actions on other persons. ▪ According to a prison report and the opinion of Ms.

Costi, it is impossible to detect in him any sincere remorse toward the victims or feelings of guilt for his offences, and he is unable to place himself in any one else's shoes, focused as he is on his own needs and how events will affect him. ▪ There is no reasonable possibility of eventual control of the risk he represents in the community, and he should be declared a dangerous offender. 3. EVIDENCE OF THE DEFENCE [ 14 ] The decisive elements that emerge from the assessment report and testimony of the physician and psychiatrist Dr. Marie- Frédérique Allard, expert for the defence, are the following. − Mr.

Topping is a man who presents with drug addiction and pathological gambling problems, mixed personality disorder, and a pathological sexuality. − We have used an actuarial scale to determine his level of dangerousness, and in order to use this scale, another statistical tool had to be used beforehand. Mr. Topping presents an elevated risk of re-offending. It should be noted that the scales use the individual's history and criminal record, which means that these aspects can not be modified later on, even if the person's behaviour and lifestyle subsequently undergo radical improvement. − For several months, Mr.

Topping has been in a residential treatment facility in order to control his drug addiction and pathological gambling problems. He has shown good progress and is benefiting from this therapy. It remains to be seen, however, whether he will be able to maintain the ground he has gained once he is outside. In our view, if these two elements (drug consumption and pathological gambling) are controlled, the risk of re-offending will be considerably lowered. Moreover, we find that Mr. Topping functions well in the structured environment of the residential treatment facility.

He also seems to have developed better relationship skills. − Certain clinical elements lead us to believe that there remains a risk of re-offending. Mr. Topping shows little remorse for the

actions he committed and little empathy for his victims. He still presents with a certain degree of impulsiveness that could lead him to commit offences. Finally, because of his past, his sexuality has become pathological. He has attended treatment programs for sexual offenders in prison and at the Institut Philippe-Pinel. He does not seem to have benefited from those programs, however, never having committed to them. He does not feel that he benefited from them.

The fact that the pathological sexuality issues were not adequately addressed is worrying with respect to the possibility of his committing sexual offences again. − Given his sexual issues, we are of the view that he should undergo a treatment program for sexual offenders, for example at the Institut Philippe-Pinel or in prison. He states that he agrees to undergo this type of therapy. Moreover, we observe that he has difficulty managing his life outside the prison environment and that he becomes disorganized easily.

We are of the view that he requires a strict structure to help him adapt to living outside prison. To this end, he would benefit greatly from a stay in a halfway house and assistance with this social reintegration. He also agrees to this. As Ms. Costi states in her report, it is important that he be allowed to remain in contact with his social workers from the Maison Jean-Lepage. This is the first time he has committed to a treatment process, and he has shown himself to be motivated and open to changing his way of life. − Statistically, Mr. Topping represents an undeniable risk of re-offending.

He has begun to make some positive changes, however, which could help him with his social reintegration over the long term, provided he receives the supervision and support he needs. − He has demonstrated openness and has acknowledged his sexual issues and anger toward women. − His stay at the Maison Jean-Lepage and his improvement with respect to his addictions now lead him to believe that he could benefit from other types of treatment, and demonstrate that he can react positively to this type of therapy and tolerate a rigorously structured environment as well as a relationship of authority, even when exercised by a woman. − His sexual behaviour during the assault on August 28, 2007, differed from that during the events of May 8, 1998, tending to confirm the progress observed in the new plethsmography test described by Ms.

Costi. − He has begun to make certain changes, and borderline personalities can improve over time. − He should be declared a long-term offender for a period of at least five years. [ 15 ] In preparing their opinions, the psychologist Ms. Costi and Dr. Allard considered the accused's progress over the course of his twenty-month stay at the Maison Jean-Lepage, a

summary of which was presented to the Court through the testimony of Gaétan Mayer, team leader, and Anne-Marie Lapointe, social worker, as well through eleven assessment reports which were filed, and from which the following main points emerge: − For twenty months, the accused lived in the strict and structured environment of the residential therapeutic facility and was not allowed on any outings. Despite the three hundred or so rules with which he had to comply, he received only a few minor disciplinary sanctions. − His adaptation was normal.

After a slow start, which is not unusual, he displayed openness with his first social worker and, even though she was replaced only a few months later, all of the workers at the facility report that he continued to make progress. − Relatively quickly, he began to play a positive role, helping other residents.

His entire treatment team decided to prolong his program while increasing his level of responsibility in the tasks they entrusted to him. − Even after his appearance for the present offences in January of 2009, he continued to improve, becoming more open and able to recognize his issues and his offences. − In January of 2010, he was given the keys to the Maison Jean-Lepage, taking on a particularly high level of responsibility as night watchman and later on as the person in charge of running the convenience store and receiving new residents. − In carrying out his various tasks with the other residents, he was cooperative with the team of social workers at the Maison Jean- Lepage. − The Maison Jean-Lepage is willing to take him back into an eighteen-month closed and structured reintegration program as part of a long-term supervision program.

This has already been done with another offender, who stayed for four years in total. − Anne-Marie Lapointe, a social worker, is in charge evenings and nights at the Maison Jean-Lepage; the accused carried out his night watchman tasks under her authority. − He has been very cooperative.

He has never threatened her or any of the other female social workers. − She states that, for the team, his incarceration on April 19, 2010, was like losing a co-worker. − Finally, despite his apprehension regarding judicial proceedings, the accused continued to make progress. [ 16 ] The eleven progress reports filed along with the testimony of team leader Gaétan Mayer also confirm his progress, his committed participation in the thematic workshops, his increasing self-awareness, the development of a relationship of trust with the social workers, the establishment of solid basic values, his compliance with the structure and rules, his advancement to positions of greater and greater responsibility, his varying degrees of involvement in the dynamics of treatment with the other residents, an improvement in all aspects of his personality in relation to his progress goals, his sustained motivation in carrying out his various tasks, his interest in extending his eighteen-month social reintegration program, and the advances he has made in managing his emotions. [ 17 ] After his release from the Port-Cartier penitentiary in December of 2006, the accused attended Alcoholics Anonymous and Gamblers Anonymous meetings.

There, he met Alphone Boulet, who became his sponsor, and Jean-Baptiste Lépine. Both of these men

testified for the defence. [18] To summarize, their depositions state the following: − the accused went to meetings three to four times a week.

He became increasingly involved in and committed to organizing andrunning the meetings. − Over time, he learned to confide in others and to open up, and he made progress. − He appeared to be sincere and anxious to better his current situation. [19] Subsequently, despite the accused's residence at the Maison Jean-Lepage and his incarceration, they have both maintainedcontact with the accused through visits, telephone calls, or letters, and they are willing to help him again in his steps toward socialreintegration. 4.

ARGUMENTS OF THE DEFENCE [20] Counsel for the defence, who seeks to have the accused declared a long-term offender, rightly acknowledges that the twoconditions in paragraphs 753.1(1)(

a) and (

b) are met; in other words, it is appropriate to impose a sentence of imprisonment of two yearsor more and there is a substantial risk that he will re-offend.

Therefore, she argues, the issue concerns paragraph 753.1(1)(c), namely,whether there is a reasonable possibility of eventual control of the risk in the community. [21] Counsel alleges that the following evidence should convince the Court that there is a reasonable possibility of eventualcontrol of the risk in the community: − the concurrent findings to this effect by the two experts, whose opinions are based on a consideration of the overall situation andof all the evidence; − the testimony of the workers at Maison Jean-Lepage, which revealed that the accused improved significantly during his twenty-month stay; − the testimony of the two A.A. and G.A. members, who confirm that the accused has made progress; − finally, the testimony of François Morasse from Corrections Service Canada, according to whom a long-term supervised staycould allow the accused to benefit from different treatment programs targeting each of his specific issues under very structuredsupervision.

Ms. Costi also states that this would be possible. 5. A FEW APPLICABLE LEGAL CONCEPTS [22] In R. v.

Johnson, 2003 SCC 46 , [2003] 2 S.C.R. 357, the leading case concerning dangerous and long-termoffenders, the Supreme Court of Canada sets out the following rules: − The purposes of the sentencing regime as a whole, as stated in Supreme Court of Canada rulings and the relevant Criminal Codeprovisions, which include those relating to dangerous and long-term offenders, indicate that the courts retain the discretion not to declarean offender dangerous even where the statutory criteria are met if the purpose of the protection of the public can be achieved withoutindeterminate detention, which also would not be a just and fit sentence in the circumstances of the case. − the main purpose of preventive detention is the protection of the public, and the rule in

section 718.2, which requires that thejudge consider less restrictive sentences, requires and that an indeterminate sentence be handed down only in those instances in whichless restrictive means would be inadequate to protect the public from the threat of harm, i.e., where a long-term offender designation isinsufficient. − The main issue to be determined, then, is whether the sentencing sanctions available under the long-term offender provisions aresufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in section 753(1) have been met. − If a court is satisfied that the sentencing options available under the long-term offender provisions are sufficient to reduce thethreat to the life, safety, or physical or mental well-being of other persons to an acceptable level, it cannot properly declare an offenderdangerous, even if all of the statutory criteria are met. 6.

ANALYSIS AND CONCLUSION First conclusion: [23] The Court finds that the evidence adduced meets both the legal conditions of a dangerous offender declaration pursuant toparagraph 753(1)(

a) and the first two conditions of a long-term offender declaration under paragraphs 753.1(1)(

a) and (b), for thefollowing reasons: − The application in this case of the legal presumption in subsection 753(1.1) has not been rebutted by proving, on a balance ofprobabilities, that the conditions in paragraph 753(1)(

a) are met.

− Between the ages of eleven and thirty-seven, the accused committed nine or ten sexual assaults, some of which were brought before a court, some of which were not. − He continued to display inappropriate sexual behaviour even in detention, in both youth rehabilitation centres (reception centres) and penitentiaries. − Since 1986, when he was sixteen years old, he has been convicted of five sexual offences, eight offences against the person, and eleven breaches of court orders. − In the short periods of time since 1986 during which he has not been in detention, he has consistently re-offended, displaying his polymorphous criminality, as clearly illustrated by his criminal record and the table of his history, detailed above. − Nothing has deterred him from re-offending, be it the expectation of harsher sentences, his participation in three treatment programs for sexual offenders, long penitentiary sentences, or strict legal supervision during his time at large. − In 1998 and 2003, he himself recognized that he does not understand his reactions to women, that he fears he will re-offend, and that he therefore prefers to remain in detention. − The nature and seriousness of the indictable offences he has committed and particularly those he has committed against women, all of the circumstances surrounding them, and the repetition of these offences show a substantial degree of indifference respecting the reasonably foreseeable and very serious consequences his behaviour could have and has had on other persons, as we have seen in the testimony given by the two victims. − According to Ms.

Costi in particular, it is impossible to detect in him any sincere remorse toward the victims or any guilt on his part, since he is incapable of putting himself in someone else's shoes and is focused solely on his own needs. − According to the two experts who rely on scientifically recognized scales, he presents an elevated risk of committing sexual and violent offences again, particularly against women. − He has borderline antisocial personality disorder in conjunction with most of the deviance factors: dependence on drugs and alcohol, impulsiveness, irresponsibility, lack of self-control, unacknowledged pathological sexuality, problem gambling, all types of delinquent behaviour, failure to comply with court orders, parasitic lifestyle, lack of realistic goals, lack of self-awareness and introspection, interpersonal relationship problems, and manipulativeness.

Second conclusion: [ 24 ] The Court is convinced, on the basis of the evidence adduced, that there is a reasonable possibility that the elevated risk of re- offending that the accused presents can be controlled in the community, for the following reasons: − Although Courts are not bound by expert testimony, in this case, both the psychologist Ms. Costi and the physician-psychiatrist Dr. Allard agree that this possibility exists; they recommend that he be declared a long-term offender and that he remain in a very structured environment and take

part in various treatment programs, to which he consents. − Ms. Costi and Dr. Allard explain that the scales used to assess the risk of re-offending take into account elements of the individual's history and his criminal record. As a result, these aspects can no longer be modified, even if the person subsequently improves his behaviour and lifestyle, as is the case here. − Ms. Costi confirms that since his twenty-month stay at the Maison Jean-Lepage, which had positive results, the accused has been able to entertain the idea that he could be treated.

Moreover, he remained significantly involved until the last day of his detention, proving himself to be highly reliable in the tasks entrusted to him. − In her report, Ms. Costi points out, among other things, that the accused has made progress since his last incarceration.

He states that it was the first time that it was painful to go to prison because of the bonds he had created with other people that he did not want to lose, that he enjoyed being outside and having good experiences, that he no longer has any deviant fantasies when angry, that he has changed in terms of his impulsiveness, that he is willing to do what is necessary to get out of this situation, and that, since his last offence, he appears to have begun feeling some uneasiness. − In her testimony, Ms.

Costi states that this is the first time that he has shown the desire to work on himself and to get himself out of his current situation, which he never has in the past. He now has a greater capacity for empathy for the victims, and he is beginning to understand the harm he caused them. He has undertaken, in an applied and satisfactory manner, a substance and gambling addiction program at the Maison Jean-Lepage.

He is not in the same place he was during his last period of incarceration. − The results of the penile plethysmography dated March 14, 2010, indicate a reversal of his preference over the last ten years in favour of consenting sexual relations, which, according to Dr. Allard, is consistent with the last assault dated August 28, 2007, during which no sexual offence was committed. − In her assessment, Dr.

Allard noted the following: ▪ The accused completely agrees with the need for supervision outside prison because he has never committed an offence while in a halfway house such as the Maison Jean-Lepage. ▪ Interpersonally, he has been able to create relationships with his sponsor and his friend at A.A. and G.A., as well as with the social workers at the Maison Jean-Lepage.

▪ He sincerely hopes to solve his drug dependency and gambling addiction problem through a treatment program, which has already seen him make some progress. This significantly reduces the risk of re-offending. He functions well in a supervised environment where he seems able to develop better relationship skills. ▪ He agrees to undertake a treatment program for sexual offenders either at the Institut Philippe-Pinel or in detention. He agrees to live in a halfway house and to accept help with his social reintegration. − In her recommendations and testimony, Dr.

Allard points out that he has begun to make positive changes and that, for the first time, he is invested in the therapeutic process and has shown himself to be motivated and open to changing his way of life. Finally, like Ms.

Costi, she recommends that the accused be permitted to remain in contact with the workers from the Maison Jean-Lepage, who have invested in him and in whom he has invested. − Neither of the experts expressed the opinion that the community would not be adequately protected if the accused, after his detention, were to remain under long-term supervision by Corrections Service Canada, be assigned to a halfway house, and participate in various treatment programs. − A long-term offender declaration has weighty consequences and is restrictive.

Among other things, the offender will be under supervision pursuant to the Corrections and Conditional Release Act when in the community, once he has finished serving his sentence. Furthermore, subsection 753.3(1) Cr. C . provides that any failure to comply with the supervision ordered by the National Parole Board is an indictable offence carrying a maximum of ten years' imprisonment. [ 25 ] For ALL of these reasons, the Court declares that the accused is a long-term offender. __________________________________ Alain Morand, J.C.Q.

Mtre Jean-Philippe Robitaille For the applicant-prosecutrix Mtre Line Boivin Counsel for the respondent-accused Date of hearing: December 9, 2010 December 10, 2010 February 23, 2011 February 25, 2011