R. v. Côté, 2012 ONCJ 707

DATE: 2012-11-15 Citation: R. v. Côté, 2012 ONCJ 707 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID CÔTÉ Before Justice D.P. Cole Heard on October 13 & 15, 2009; April 11, 26, 27, 28, 29, May 5, 24, 25 & 26, 2011; June 20, 21, 27 & 28, 2012 Reasons for Judgment released on November 15, 2012 P. Travers; R. Zaied .............................................................................................. for the Crown R. Lewin; J.

Goldenberg .................................................................... for the accused David Côté COLE J.: INTRODUCTION [1] Following pleas of guilty to the “serious personal injury offences” of (1) sexual assault causing bodily harm (2) choking withintent to commit an indictable offence (3) being masked with intent to commit an indictable offence, and (4) unlawful confinement, theCrown now applies (

a) to have Mr. Côté designated as a dangerous offender (DO), and (

b) seeks the imposition of a sentence ofindeterminate detention pursuant to s.753 of the Code. [2] In the event that this application is dismissed, the Crown alternatively applies for an order that Mr. Côté be found to be a long-term offender (LTO) pursuant to s. 753.1 of the Code. If I am persuaded that the offender meets the various criteria outlined in thatsection, the Crown proposes that Mr.

Côté be sentenced to a total term of 12 years consecutive to the sentence he is now serving,followed by a long-term supervision order (LTSO) for the maximum period of 10 years. [3] After some months of attempting to make arrangements with Toronto counsel Mr. Côté eventually retained Mr. Lewin torepresent him in these Ontario proceedings. When I became seized with this case in October 2009, Mr.

Lewin indicated that hisinstructions were to oppose the anticipated dangerous offender application, on the basis that the Crown’s overall behaviour was soegregious that it should be estopped from proceeding with either a dangerous offender application or a long term supervision application.He initiated a motion, based on s.7 of the Charter, seeking an order that the Crown should be prohibited from proceeding further withthe dangerous offender application or from seeking a long term offender designation, and I should instead direct that a definite sentencebe imposed.

Much evidence was called in relation to the Crown’s alleged abuse of process. [4] Part way through the proceedings, Mr. Côté discharged Mr. Lewin and retained Ms Goldenberg. Once she became properlybriefed, she indicated that her instructions were that the “s.7 motion” was to be treated as abandoned. Her further instructions were thatMr.

Côté now concedes he fits the dangerous offender criteria set out in s. 753, but that she would be seeking that I exercise mydiscretion not to impose this designation, a disposition found by the Supreme Court of Canada to be lawful and appropriate in R. v.Johnson 2003 SCC 46 , [2003] 2 S.C.R. 357[1]. Her position was that I should make a finding that Mr. Côté meets the criteriato be found to be a long-term offender (LTO), and that I should impose a sentence of 4 years consecutive to any sentence now beingserved, followed by a long-term supervision order (LTSO) for 10 years.

PROCEDURAL HISTORY OF THE EVENTS AND CHARGES AGAINST MR. CÔTÉ [5] Though somewhat convoluted, this history is necessary to explain the positions ultimately taken by the parties on variousissues central to this case. The California Incident (Exhibits 41A & B) [6] For many years prior to his arrest in 2001 Mr. Côté was a long haul truck driver, whose duties took him all across Canada, theUnited States and Mexico. On April 5, 1993 he was driving his Quebec-registered truck in Ontario County, California when he met L.R.and C.C., 14 and 15 year-old female runaways, at a truck stop.

He invited them to join him, which they agreed to do. They alleged that,though they entered his truck voluntarily, soon he detained and sexually assaulted them over a period of several hours. After eventually

escaping from his control in the town of Ventura, California they complained to the local police about what he had done. [ 7 ] The complainants provided Ventura police officials with details about the identification of the truck being driven by Mr. Côté, but by the time the police got involved Mr. Côté was nowhere to be found. Some days later Det. Wapner of that force spoke with Mr. Côté’s Quebec employer, who checked the company records and told him that Mr. Côté had been driving that truck on April 5, 1993; after some further investigation a warrant was issued for Mr. Côté’s arrest.

Soon after learning of the existence of that warrant Mr. Côté telephoned Det. Wapner. He told the officer that his position was (and is) that he had provided the complainants with a ride in exchange for consensual sexual services (for which he paid them), that he would cooperate with the investigation, and that, in the event the U.S. authorities commenced such a process, he would “not fight extradition back to the United States”. Two days later Det. Wapner spoke with Mr. Côté and told him that he would be in touch with him further after he had consulted with the Ventura District Attorney’s office.

However, no process was ever commenced by the California authorities to attempt to force Mr. Côté to return to face the pending charges, and nothing further was done about these charges until it was discovered that Mr. Côté was in a Florida jail in 2001 (discussed infra , paras. 18-20). The First Quebec Sexual Assault [ 8 ] On the evening of July 29, 2000 15 year-old J.S. was riding her bicycle towards her home in the village of Scott Junction (south of the St. Lawrence River, approximately ½ hr. drive from Quebec City). Mr.

Côté came up behind her on his bicycle, knocked her off her bike into the gutter, pulled her off the roadway, jumped on top of her, placed his hands on her mouth and throat, pulled down her clothes and penetrated her with his penis. She did not know if he ejaculated. After some brief time he got off her, pulled up his pants, and told her that she must not tell anyone “otherwise he would come back”. Grabbing her by the throat, he pulled her further from the road, and told her to remain there “for 15/20 minutes” while he left. She obeyed his instructions for a period.

She ran home and complained to her family about what had happened. The police were called and she was taken to hospital. At the hospital the complainant’s clothing was seized and a forensic analysis was conducted, which disclosed the perpetrator’s DNA profile. [ 9 ] No comparison sample of Mr. Côté’s DNA was available in the National DNA Database, because he had never been arrested for or convicted of any offence (let alone a sexual offence). The Second Quebec Sexual Assault [ 10 ] A few days later, at about 7:10 p.m. on the evening of August 8, 2000 15 year-old M.B. was standing at a bus stop in St.

Foy, a suburb of Quebec City. Mr. Côté asked her for the time. She said she did not know, and she turned away, whereupon he grabbed her by the neck and dragged her into some nearby woods. He undressed her and told her “to shut [her] mouth otherwise he would hit [her] really hard”. He penetrated her with his fingers and penis, but she did not know if he ejaculated. He forced her to commit fellatio. He told her that “if [she] didn’t scream and did not press charges, he would let [her] live”. He then left after telling her not to move for 10 minutes.

She ran to her mother’s home and immediately complained. [ 11 ] No DNA sample of the perpetrator could be recovered from M.B. For this reason, accurate comparisons of the perpetrator’s DNA samples could not be made (though police authorities considered that this sexual assault was very likely committed by the same person as in the previous Quebec incident). The Toronto Sexual Assault [ 12 ] Four days later Mr. Côté was in Toronto when he committed the “serious personal injury offences” referred to in paragraph 1 supra .

The facts of those offences were that at approximately 8:00 a.m. on August 12, 2000 20 year-old M.D. was walking along a path under a railway overpass in south Etobicoke. She was wearing a Walkman and had earpieces in both ears. She noticed a man approach her from the opposite direction, but thought little of it, other than that the man might have been intoxicated as he seemed to be stumbling along. After they had passed one another he came up from behind, grabbed her in a headlock and dragged her into a nearby wooded area.

When she resisted, he threatened to kill her and choked her by pressing his thumbs into her neck, at which point she decided to comply and stopped struggling. Mr. Côté dragged her into a clearing some 30-40 feet off the roadway, where he had already placed a plastic sheet, on which he laid her down. He had further prepared himself by purchasing a jar of Vaseline and by wearing sunglasses and a bandanna over his head. He sexually assaulted her over approximately the next four hours, penetrating her on numerous occasions with his fingers and penis, as well as forcing her to perform fellatio.

At one point he paused, went through her wallet and read out her home address in an effort to further intimidate her. Sometime after 12:00 p.m. he fled, warning her not to leave for 5 minutes or he would come to her house. [ 13 ] M.D. walked to a local fire station, from which a 911 call was placed at 12:33 p.m. Later that day, samples of DNA were taken from the clothing she had been wearing.

Though the police later realized that those samples matched the DNA profile taken from the first Quebec sexual assault (and that the perpetrator was likely the same as the person who had committed the second Quebec sexual assault), because samples of Mr. Côté’s DNA were not in the National DNA Database, the police did not at that time have any hard evidence against Mr. Côté (though it appears that he was eventually considered as one of a number of “persons of interest” to both Toronto and Quebec police). [ 14 ] As will be seen, though the Toronto police became aware that Mr.

Côté was incarcerated in the U.S. (and later in Quebec), he was not formally arrested on the Toronto charges until April, 2008. The Florida Sexual Assault (Exhibits 21-23) [ 15 ] Toronto and Quebec police officials continued to investigate Mr. Côté (and other “persons of interest”), but no substantial progress was made until about January 15, 2001, when he was arrested in Boca Raton, Florida for “attempted sexual battery” and “illegal confinement”. The facts of that offence were that 26 year-old A. Y. was jogging in the wooded area in a state park in the early evening. Mr.

Côté grabbed her and attempted to drag her into the bushes. She resisted and ran off. She stopped a passing car and asked the driver to call 911; Mr. Côté was soon captured while trying to evade the authorities by swimming across the Intercoastal Waterway.

[ 16 ] Given the nature of the offences with which he was charged, the Florida statute authorized the prosecutor to seek a post-arrest pre-conviction court order requiring Mr. Côté to provide a sample of his DNA. This application was promptly made and granted, and Mr. Côté’s DNA profile was extracted from a blood sample. Within a few days, both Toronto and Quebec police – who had caused samples of the DNA profile taken from the first Quebec sexual assault complainant and the Toronto sexual assault complainant to be registered with Interpol - had been notified of Mr.

Côté’s location, his charges and his DNA profile. Some weeks later Canadian police went to the Florida jail where he was housed to interview him about the Quebec and Ontario offences, but he exercised his right to silence and at that time declined to comment about them. Disposition of the Florida Charges (Exhibits 22-23) [ 17 ] Several months later, Mr. Côté pleaded guilty to the Florida charge of illegal confinement, in exchange for which the other Florida charges were withdrawn.

On November 30, 2001 he was sentenced to a term of 92.2 months (after making deductions for time spent in pre-trial custody). [2] Disposition of the California Charges (Exhibits 41A & B) [ 18 ] A routine search of U.S. penal records conducted in 2001 by California police authorities disclosed that Mr. Côté was incarcerated in Florida. In October 2002 he was transferred from Florida to California to face the 1993 charges. A preliminary inquiry was held into those charges on January 22 and 24, 2003, during the course of which the two complainants L.R. and C.C. both testified.

At the conclusion of the preliminary inquiry Mr. Côté was committed for trial. [ 19 ] Prior to the commencement of the trial Mr. Côté applied for dismissal of the charges on the basis that his constitutional right to a speedy trial had been improperly infringed. On June 6, 2003, citing the relevant sections of the California penal code and some case law, San Bernardino County Trial Judge I. A. Uhler granted the motion on three bases. The first was that the prosecution had shown “absolutely no desire or ability…to bring the defendant to justice within that 10-year period [from 1993 to 2003]”.

Secondly, the defendant had shown “actual prejudice…[by showing]…there is absolutely no allowance (sic) of the defence at this point to establish the defendant’s side of the story in regards to the consensual nature of the act based on the delay in time in pursuing these charges”. Finally, Judge Uhler found that: “there’s numerous inconsistencies between what I observed regarding what the two alleged victims said 10 years ago and what they are saying now in terms of the description of the acts and how they occurred”. [ 20 ] The California charges having been dismissed, Mr.

Côté was transported back to Florida to serve the balance of the sentence imposed in that jurisdiction. Disposition of the Quebec Charges (Exhibits 7-9) [ 21 ] Canadian authorities commenced extradition proceedings to return Mr. Côté to Canada to face the Quebec and Ontario charges. Mr. Côté instructed Florida counsel that he did not wish to oppose extradition and a consent judgment was made to that effect. On October 25, 2005 he was transferred to Quebec and first appeared in court there on December 7, 2005. After various lengthy remands to retain and instruct counsel (and numerous changes of counsel) [3] , Mr.

Côté entered pleas of guilty to the two Quebec sexual assault charges on December 7, 2006, and in due course was remanded for a psychiatric assessment pursuant to s.752.1 of the Code . After the completion of a psychiatric and psychological assessment by staff of the Pinel Institute and the various other procedures that needed to be undertaken before a dangerous offender/long-term supervision application could be proceeded with, Crown and defence came to a mutual conclusion that Mr. Côté should be found to be a long-term offender (LTO) rather than be designated as a dangerous offender (DO).

Consequently, a joint recommendation as to sentence was eventually placed before the court, and on March 6, 2008 Mr. Côté was found to be a long-term offender by Quebec Superior Court Justice M.-L. Auger, who imposed a total custodial sentence of 9 years (4 years for the July 29, 2000 sexual assault of J.S., and 5 years consecutive for the August 8, 2000 sexual assault of M.B.). Relying on the psychiatric assessment that there was “a reasonable possibility of eventual control of [his] risk in the community” (discussed in more detail infra ) both Crown and defence invited Justice Auger to declare that Mr.

Côté should additionally be subject to a Long-Term Supervision Order (LTSO) for a period of 10 years following the expiry of the custodial sentence. [ 22 ] I have been informed by sentence administration officials (Exhibit 42) that, subject to the possible application of the “detention” provisions of the Corrections and Conditional Release Act , Mr. Côté currently stands to be conditionally released from custody on March 6, 2014 (his “Statutory Release Date”), with the custodial portion of his sentence ultimately to expire three years later on March 5, 2017.

He will then be subject to Justice Auger’s Long-Term Supervision Order for 10 years. (Obviously, these release and sentence expiry dates will be considerably delayed beyond 2014, 2017 or 2027 depending on the disposition I make in these proceedings). The Toronto Charges [ 23 ] Once Mr. Côté had disposed of the Quebec charges, he was brought to Toronto in April 2008 to appear in court to deal with the charges arising in south Etobicoke. After various remands and changes of counsel, he eventually appeared before me on October 13, 2009, instructed Mr.

Lewin that he elected to be tried in the Ontario Court of Justice and entered pleas of guilty to charges of sexual assault causing bodily harm, choking, uttering a death threat, forcible confinement and wearing a face mask with intent to commit an indictable offence, all against M.D. [ 24 ] Unfortunately, M.D. died on March 22, 2003. On consent, much of the evidence that she would have given was provided by other parties. The first witness was Ms M. Llewellyn, a nurse who had dealt with M.D. over a two-hour period when she was brought to Women’s College Hospital later in the day when the sexual assaults occurred.

Using police photographs and a Sexual Assault History Form she had completed at the time, Ms Llewellyn described the extensive bruising and other physical injuries that she and another nurse had noted during their examination of M.D. (Exhibits 1-3). [ 25 ] Ms Llewellyn’s evidence was supplemented by Det. C. Field, the officer in charge of the Toronto case. His recital of M.D.’s “will say” largely came from the videotaped “ KGB ” statement she had provided to him and another officer the day after the sexual assaults had occurred.

Since I have already summarized the details of this brutal attack in paragraphs 12-13 supra , I see no need to repeat

them here. [26] At the conclusion of Det. Field’s evidence – once again on consent – I remanded Mr. Côté for the commencement of the variousassessment processes that need to occur before a dangerous offender application may be heard – initial mental health assessment,Attorney-General’s written consent, further remand for comprehensive mental health assessment etc.

Since the “s.7” motion to prohibitthe Crown from proceeding with the DO/LTSO applications has now been abandoned, there is no need to spend time detailing this partof the procedural history of this case, as counsel are agreed that all steps have now been properly completed. However, before moving toconsider the substance of this application, there are two procedural matters on which some comment is necessary. [27] Before dealing with these issues, I should add that Crown counsel elected to call all three of Mr.

Côté’s living victims to testify tothe fact that in different ways they all continue to experience long-term traumas as a result of being exposed to very serious sexualassaults at the offender’s hands. It is obvious that in different ways they are all still suffering from what has happened to them. Andwhile I was told very little about the circumstances of M.D.’s death, it is equally obvious that such a vicious and prolonged assault musthave had a very significant impact on her well-being, as her mother (speaking for herself and on behalf of M.D.’s father) testified. 1.

The Effect of the Dismissal of the California Charges [28] It would obviously strengthen the Crown’s case against Mr. Côté if I were to characterize the events in California as amountingto sexual “offences”. Not only would this extend the duration of his illegal sexual acting out by some 7-8 years, but it would also lendsupport to the submission that he generally offends against quite young (and physically petite) women.[4] [29] At one point, this case was adjourned for the Crown to attempt actually to bring L.R. and C.C. to testify in this proceeding. Notsurprisingly, Mr.

Lewin indicated his intention to vigorously oppose the introduction of such evidence, on the basis that either resjudicata or issue estoppel now applied in light of the California court’s dismissal of the criminal charges against Mr. Côté. I deferredruling on this until I heard from the Crown whether they intended to try to have these witnesses testify. Det. Field eventually testifiedthat while he had been in intermittent contact with the original complainants (now called L.L. and C.V.) over the years, they had changedtheir addresses and telephone numbers since he had last been in contact.

Despite enlisting various U.S. law enforcement authorities to tryto find them as the anticipated court date came closer, all efforts had proved unsuccessful. In light of this, Ms Zaied indicated that shewould not be seeking to adjourn this proceeding further, and invited me to rule on the issue without the benefit of hearing from thesewitnesses. [30] The Crown’s first argument on this issue was based on necessity. As Mr.

Lewin did not take issue with this aspect of theCrown’s application, I ruled that the Crown had established this threshold basis for admissibility. [31] The Crown’s next argument on this issue was that reliability of the complainant’s evidence had been established in two ways.First, she argued that because the complainants had given evidence under oath in the California preliminary inquiry, and since they hadbeen exposed to cross-examination in that proceeding,[5] that amounted to some evidence of threshold reliability. More importantly,Crown counsel pointed to various admissions made by Mr.

Côté in his interviews with Canadian police and Canadian mental healthprofessionals in which he freely admitted engaging in sexual contact with the complainants and agreed with the complainants aboutmuch of what had happened in his truck. In fact, the only substantive point of dispute between him and the complainants was that he saidthat what happened was consensual.[6] Thus, Ms Zaied argued that this too amounted to threshold evidence of reliability.

Because of theconclusion I ultimately came to about how to characterize this evidence, I did not make a formal ruling on this evidentiary issue. [32] In anticipation of the obvious concern that to now admit the complainants’ evidence on a substantive basis would be to ignorethe dismissal of the California charges, Ms Zaied reminded me that this current proceeding does not amount to re-trying the Californiaacquittal; she rather argued that this is a sentencing hearing, where the reach of the “fair trial” provisions of the Charter is somewhatmore attenuated (see R. v. Jones (SCC), [1994] 2 S.C.R. 229).

She argued that it is essential for the proper adjudicationof an application to have someone designated as a dangerous offender to consider all of the available information about the offender’ssexual behaviour, and that it would artificially tie the hands of the mental health professionals – and, ultimately, the court – not toconsider the substance of the California “events”. She supplemented this by making the fair point that, unlike many cases, Mr.

Côté was– and is – entirely willing to discuss his version of what happened in California with both the police and with the mental healthprofessionals who have assessed him, so there would be little harm in letting this “evidence” apply.

Indeed, as will be seen, his oft-repeated position is that the wrongfulness of the allegations made against him by the California complainants started (or substantiallycontributed to) the downward spiral in his life that eventually triggered him to commit the various sexual assaults of which he has beenfound guilty in Florida, Quebec and now Ontario. [33] After considering the Crown’s application, I told counsel that my preliminary view was that I would not prepared to admit theCalifornia evidence on any basis that would establish that Mr.

Côté’s behaviour with L.R. and C.C. amounted to “offences” or “crimes”.Because I had not at that stage seen any of these materials, I asked Mr. Lewin if he wished any of the mental health assessments to berewritten so as to have such terms excised should they appear therein, or – more importantly – if the assessors had proceeded on thebasis that Mr. Côté was guilty of “crimes” against these complainants, that they should re-evaluate their evidence and conclusions onpoint. He indicated that he preferred that both be done.

At that point Ms Zaied vigorously objected on several bases, one of which relatedto what might happen if Mr. Côté elected to testify in this proceeding and then gave a different version of what had happened with theCalifornia complainants. While I neglected to say this expressly in my brief oral ruling on this motion, I considered that this objectionwas premature unless and until Mr.

Côté elected to testify during this sentencing hearing, which he has chosen not to do. [34] Ms Zaied’s next objection was that it was far too late and would be far too expensive to have any of the various mental healthassessments rewritten.

After considering her arguments on point, I ruled that while some evidence of threshold reliability had beenestablished – leaving aside, of course, the question of whether the sexual activities were consensual or forced – I had come to the viewthat none of the mental health or other documents that might in future be prepared for this court could characterize the California events

as “offences”. I further ruled that if any documents that had already been prepared did so, I would ignore that characterization. I am pleased to report that in his Report – which had been prepared for this hearing prior to my ruling - Dr. S. Woodside very fairly writes: “Given that no finding of guilt has ever been entered with respect to those offences, I asked not to have materials directly relating to those alleged offences provided for this opinion, although Mr. Côté referenced these charges in interviews.” (p. 30) [ 35 ] As this case proceeded, I note that neither Mr.

Lewin nor Ms Goldenberg pointed to any references in any Reports prepared prior to my ruling that may have suggested that Mr. Côté was “guilty” of any “offences” in relation to the California incident. I reiterate that the only substantial difference between what Mr. Côté said and what the complainants said about what had happened was on the question of whether the sexual activities were consensual. [ 36 ] In sum, because Mr.

Côté later elected not to testify, and because the Reports that I saw and the expert evidence that I heard did not treat the California events as “offences” or “crimes”, the anticipated problems that might have arisen now appear to have dissipated. Given that Mr. Côté was entirely prepared to discuss what happened in California with the various mental health professionals who have assessed him, I am of the opinion that this “California” evidence may be considered within the context of this sentencing hearing (though of course I reiterate that none of it may be used to establish that Mr.

Côté was guilty of any “offences” or “crimes” against these complainants). [7] 2. The Psychiatric Report of Dr. J. Gojer (Exhibit B) [ 37 ] The September 6, 2010 Report of Dr. Woodside and his team at the Centre for Addiction and Mental Health was filed on consent as an Exhibit [8] in these proceedings many months before he actually testified. As frequently happens in dangerous offender proceedings, Mr. Lewin sought and obtained a second opinion from Dr. J. Gojer, another well-known forensic psychiatrist. Since that Report referenced Dr.

Woodside’s Report, on consent of both counsel it too was given to me well in advance as a courtesy so that I might read it in preparation for both cross-examination of Dr. Woodside and for the anticipated testimony of Dr. Gojer. However, unlike Dr. Woodside’s Report, Dr. Gojer’s Report was not at that time formally filed as an Exhibit – likely because neither party could anticipate that this would be a contentious issue. [ 38 ] Though it was many months before they were expected to give evidence, I read both Reports as they were received, so I was aware of what Dr. Gojer would say. However, when Mr.

Côté changed counsel from Mr. Lewin to Ms Goldenberg, she indicated that she would not be calling Dr. Gojer as an expert witness, that she no longer wished to place any reliance on what Dr. Gojer had said in his Report, and that she was content to rely upon Dr. Woodside’s Report and her cross-examination of him. [ 39 ] The first difficulty which arises from this late change of instructions is that one potentially important element of Dr. Gojer’s Report had already been put to an expert witness while Mr. Lewin was still acting for Mr. Côté i.e. when it was still anticipated that Dr. Gojer would testify.

The issue arose in this way: Dr. M. Gignac, principal author of the s.752.1 Report used in the Quebec proceedings, was called to give evidence as a witness for the Crown in the proceedings before me at a time when Mr. Lewin was still acting for Mr. Côté. Mr. Côté had told Dr. Gignac in late 2006 and early 2007 that his deviant sexual fantasies of rape had not originated until some time after, in his mind, he had been wrongly accused by the California complainants i.e. at some undefined point between April 5, 1993 and July 29, 2000, when Mr. Côté was between 31 and 39 years old. However, Ms Zaied put to Dr.

Gignac something that he could not have been aware of at the time he prepared his Report, namely that Mr. Côté had subsequently told Dr. Gojer that he had been harbouring thoughts of rape since he was about 14 years old. She did this because she wanted Dr. Gignac to modify his views to now say that, in light of what Mr. Côté had said to Dr. Gojer, Mr. Côté meets the dangerous offender criteria and that Dr. Gignac’s original recommendation for a lengthy definite sentence followed by a Long Term Supervision Order was no longer adequate. After some considerable “fencing” with Crown counsel, Dr.

Gignac somewhat reluctantly agreed that this would have changed his view. [9] [ 40 ] The problem of course is that, since Dr. Gojer’s Report was never formally entered as an Exhibit, strictly speaking, Mr. Côté’s admission about having had rape fantasies since the about the age of 14 was not properly in evidence before me. I have given much consideration to how to deal with this evidentiary problem and Dr. Gignac’s eventual concession that that likely would have made a difference in his assessment of Mr. Côté’s dangerousness.

As will be seen, in light of the conclusion I have eventually come to on the substance of this application, I am of the view that the evidentiary problem raised by Ms Goldenberg’s later decision not to rely on Dr. Gojer’s Report after a portion of it had been referred to in open court does not ultimately make a difference. Thus, I do not intend to place any reliance on the portions of Dr. Gojer’s Report that were put to Dr. Gignac during his testimony. [ 41 ] Secondly, though I had read Dr.

Gojer’s Report when it was given to me, because it was not formally filed as an Exhibit (and because he did not testify) it is my intention not to place any reliance on anything that Dr. Gojer said in his Report. As I indicated to counsel during submissions, I have directed that Dr. Gojer’s report be entered as a lettered Exhibit (Exhibit

B) for purposes of having a complete record in this proceeding. I further direct that it is not to be forwarded to penal and parole authorities, nor to be disclosed to any other person without my fiat (see R. v. L. (B.) , March 21, 2000, unreported per Glass J.). DR. S. WOODSIDE’S REPORT (Exhibit 35) AND TESTIMONY [ 42 ] Dr. Woodside is a Staff Psychiatrist and Senior Clinician, Assessment and Triage Unit, Sexual Behaviours Clinic at the Centre for Addiction and Mental Health, where he has worked since 1997. He is presently the Head of the Sexual Behaviours Clinic. Dr.

Woodside’s curriculum vitae (Exhibit 34) describes extensive attendances and presentations at numerous seminars and lectures. More importantly, though he could not give an exact number, he has participated in some 80-85 assessments under the various iterations of s.752 of the Code since he first began to work as a forensic psychiatrist in the mid-1990s. Ms Goldenberg properly conceded Dr. Woodside’s considerable expertise. [ 43 ] Dr. Woodside testified that he had three face-to-face meetings with Mr. Côté, over a total period of 5 ¾ hours during a two week period.

He said that this was slightly less than the 6-10 hours he would normally spend interviewing the subject of an assessment. He attributed this to two factors. First, unlike many of the offenders Dr. Woodside deals with, Mr. Côté has no previous record of criminal convictions other than the four matters I have previously described in these reasons. Secondly, because Dr. Woodside could not guarantee to keep confidential what Mr. Côté said to him, Mr. Côté was adamant that he would not discuss some “details relating to his

offences [or] his sexual fantasies” (Report, p. 2). [ 44 ] Following normal practice, though Dr. Woodside wrote and signed the report (as well as testifying in court), he considered and assimilated much collateral information from a variety of professional and lay sources. I shall be detailing these later in these reasons. For the present, it needs to be noted that between Dr. Woodside’s interviews Mr. Côté was also seen for a psychological assessment conducted by forensic psychologist Dr. C. Abramowitz. While Mr. Côté voiced his concerns to Dr. Abramowitz about Dr.

Woodside’s inability to guarantee confidentiality, he expressed no such concerns to Dr. Abramowitz, and readily agreed to undergo 2 hours of interviews and 9 hours of psychological testing with her over a period of several days. Her Report (Exhibit 5) indicates that she was entirely satisfied not only that Mr. Côté understood that she too could not guarantee confidentiality, but also that he agreed to participate fully in the psychological assessment process.

Furthermore, two of the tests she administered to him are mainly or partly designed to probe whether an examinee may be attempting to feign efforts or cognitive deficits. After administering two of the measures on the Test of Memory Malingering (TOMM)), she decided that there was no need to have him complete other sub-tests of that instrument, as she was satisfied that “he was not feigning memory impairment and was exerting adequate effort to complete cognitive functioning” (p.3).

Moreover, as she administered a battery of other measures, some of which (such as the Personality Assessment Inventory (PAI)) contain built-in validity indices designed to assess factors (including malingering) that could distort results, Dr. Abramowitz found no such evidence. She concluded that “[c]urrent testing is likely to be a valid indication of Mr. Côté’s cognitive abilities”, and that ‘[his] profile on a test of personality and psychopathology…is thought to be a valid indicator of his emotional functioning” (p.6). [10] [ 45 ] When I discuss Dr.

Abramowitz’ findings later in these reasons, I shall therefore assume that her assessment findings are a valid reflection of Mr. Côté’s cognitive and emotional functioning. Mr. Côté’s Self Report [ 46 ] While Mr. Côté was entirely candid with Dr. Abramowitz, he was considerably more circumspect with Dr. Woodside. He was quite willing to self-report about many aspects of his personal history, such as his early childhood, educational, employment and relationship history. Mr.

Côté was also content to disclose some portions of his sexual history, including “acknowledge[ing] fantasies… [for] a few years… of forcing sex on women prior to his offending behaviour” (p.10); however, as I have previously indicated, because of his concerns about Dr. Woodside’s inability to guarantee confidentiality about what Mr. Côté might say to him, Mr. Côté expressly declined to answer directly many further questions put by Dr. Woodside designed to further probe his sexual fantasies. [ 47 ] Because Mr. Côté’s Canadian victims were all quite young (15, 15 and 20 years), Dr.

Woodside obviously wished to question whether Mr. Côté had any deviant interest in pubescent or prepubescent females. Mr. Côté denied any such interests. Dr. Woodside then raised the question of his sexual involvement with the teenagers in California, a subject Mr. Côté was quite eager to discuss since (I reiterate) he considers that what they did to him by laying a false complaint of sexual misbehaviour may well have been a trigger for his later offending.

Mr Côté replied that while he had never asked them their ages, he thought they were “fifteen and up”, that they “were used to alcohol and parties”, and that he could tell “they way they moved and the way they talked… they were very mature…[and] had more experience than me sexually” (p.10). Beyond this, he refused to talk more about his sexual fantasies, indicating to Dr. Woodside that while he might be prepared to be more open within the context of a therapeutic relationship, given that Dr. Woodside had clearly stipulated that anything Mr.

Côté might say could be shared with the court, he was not prepared to be more forthcoming. [ 48 ] This refusal to co-operate fully in these important aspects of the assessment process meant that Dr. Woodside needed to rely more heavily on other sources of information to prepare his Report. The first of these was inferences to be made from other things that Mr. Côté said to him during the course of their discussions. According to Mr.

Côté, his knowledge that a warrant for his arrest was outstanding for him in California meant that he could no longer safely drive to the United States, which apparently caused him to lose (partial or full) employment as a long haul driver.

Because in his mind the California complainants were prostitutes whose false complaints resulted in him effectively being barred from entering the U.S. he considered that “one time in the past, I [had been] robbed and lost everything”. [11] After “[s]ix or seven years went by…I came to the point where I was so upset, it was like a major depression.” He went on to explain that he began to blame women as the general cause of his problems: “…it was like a revolt against women…you know when you rebel against life, the people that caused you pain…at the time, I was caught up in pain” (p.10). [ 49 ] Dr.

Woodside probed this further during two of his three interviews with Mr. Côté. In the first interview Dr. Woodside asked Mr. Côté to specify how what had happened with these two women had led him to later commit the Quebec, Ontario and Florida sexual assaults. He replied: “[A]t the time I was mad with life, I didn’t care about anything…I expressed myself that way [through the sexual assaults]…maybe at the time, I was in such pain, I turned to porn…to comfort myself, to fill in the emptiness”. When Dr. Woodside asked if the pornography the offender had purchased [12] related to themes of violence and rape Mr.

Côté denied this but went on to state that he focused on wrongs women had done to him in the past. He stated: “I was blinded by…everything was crowding in…I was not letting go of the pain”. Though he admitted that women had mocked him – apparently at school - while growing up, he was unable to provide specific examples, saying only that “[w]hat women say to me” caused him to be hurt by women and to cause hate (pp. 10-11). [ 50 ] During the second interview Mr. Côté was anxious to talk about “whether or not he had dealt with his issues and was ready for release”. Dr.

Woodside invited him to refocus on what incidents in his past caused his offending behaviour and what treatment he considered might be necessary before he could be released. He said that his offences were not a function of what had happened to him but grew out of his attempt to “bury it”.

When asked to clarify, he repeated: “Probably my hate for what they [women] have done to me…in my life” (pp.10-11), and cited as causal factors both what had happened to him in California as well as rejection by other women (though he could not give specific examples beyond saying he had been mocked at school). [ 51 ] In this second interview Dr. Woodside raised the important question as to whether, as part of any release plan, the offender would be prepared to take medication to reduce his sex drive. Mr.

Côté initially said that he was not prepared to consider this, as “I have a desire to have a normal life, to have children”. He felt that he did not need it as, while his previous actions had been a “function of hate”, he now knew his own thoughts and had no interest in raping women. Later in the same interview he said that he “would be willing to take medication although he did not see himself as being at risk of committing a further sexual assault”.

In the third interview some days later, he indicated that because he wanted to marry and to have a family he was not prepared to commit to receiving treatment with anti-androgen medication unless psychological sex offender therapy by itself would not manage his difficulties.

[ 52 ] It was during this third interview that Mr Côté eventually refused to answer questions or participate further. He was offered the opportunity to make a further statement without it being a response to any questioning. He told Dr. Woodside that while he accepted responsibility for all the offences he committed in Florida, Quebec and Ontario, he wanted the judge to know the following: “I want to take full responsibility of the crime I have done and I don’t want to blame anyone at any time … for my youth to this point.

In the past I got involved with wrong people and the wrong girl and eventually it turn [sic] out against me. I lost everything, I went six to seven years and I gave up. I was mad at life but all these years that went by, I push everything down and I’m asking every one of you to forgive me. I realize that it is not productive to push everything down. Now, I have made a decision. I will do everything humanly possible to change the course of my life. To live a life of forgiveness and a life of love. And I am committed to do what is humanly possible to repair and make a change and do something good with my life.

There’s one thing I cannot do … to give up … the most precious thing I have is my conscience. I want to be at peace with my conscience and God. I want to develop myself for great things in life. I’m not doing it only for the judge but because it’s for myself. I want to be at peace with my conscience.” Collateral Sources Referred to in Dr. Woodside’s Report 1. The Offender’s Parents [ 53 ] The first collateral source Dr. Woodside relied upon was a translation of a 2008 interview conducted with Mr. Côté’s parents. Combining what they told the questioner [13] with what Mr. Côté told Dr.

Woodside, the following picture of his family life emerges: Mr. Côté’s father was a teacher and his mother was a homemaker; apparently, the family was financially comfortable, and Mr. Côté reported not lacking anything – either financial or emotional - during his childhood. The offender is the sixth child in a sibline of eight. (In order to protect their privacy, he did not want his siblings to be contacted for Dr. Woodside’s Report). Mr. Côté and his parents reported that he did not suffer from any serious illnesses or separations in childhood.

He did not report any history of trauma during childhood. [ 54 ] Both Mr. Côté and his parents agreed that he was neither successful at school nor did he enjoy schooling. After being shuttled back and forth between vocational and academic classes, he finally left school after completing Grade 10 at age 19, whereupon he moved to Ontario to seek employment. It appears that he was (mostly) fully employed until his arrest in 2001. [ 55 ] Mr. Côté’s parents reported that he “had always been odd”, in that “he did not spend time with a lot of people, and did not have many friends” (Report, p.13).

They described him as “secretive”; they said that though they found him to be “honest, sensitive and straightforward…they felt they really didn’t know him” (p. 14). He “kept a lot inside himself”, particularly after he became zealous about religion (apparently in the early 1980s). Another manifestation of what his parents considered his odd behaviour was “that he wanted to wash himself after work and would take two baths in boiling water with antibacterial soap. They described him as being prudish about this and indicated he felt everything had to be washed thoroughly” (p.13).

His father reported that his son “imposed his ideas on others and that he had a very strong desire to control. He…never waited for the right time to say something. He…used to dream of having a rich wife with a beautiful car and being her driver” (p. 14). [ 56 ] Though Mr. Côté’s parents had some awareness of their son’s relationships with women, it seems that he never disclosed to his parents the fact that he was sexually abused on several occasions between the ages of 10 and 17 by an adult male neighbour in his forties. Indeed, when first questioned by Dr.

Woodside about this particular sexual activity, he said nothing. It was only after Dr. Woodside told him that he was in possession of notes of previous interviews with court-appointed psychiatrists in Florida in which Mr. Côté had told them about these activities that Mr. Côté was more forthcoming with Dr. Woodside. Mr Côté “reported engaging in masturbation and oral sex with this individual on a few occasions…and stated that this individual gave him money and let him drive his truck. He also reported that his abuser told him that he would ‘tell on him’ and that Mr. Côté would get into trouble as a result” (p.8).

When Dr. Woodside questioned whether this abuse might be related to his offending behaviour, Mr Côté stated: “You have a good question…I don’t have an answer for that”. He then stated that his offending behaviour was “perhaps a combination of things…[but that] I forgive whoever [I] needed to forgive” (p.9). 2. Florida Mental Health Assessments [ 57 ] Dr. Woodside’s Report briefly summarizes psychological and psychiatric assessments conducted while Mr. Côté was awaiting trial in Florida.

Because these were primarily directed to the limited issues of fitness to stand trial and a possible trial defence of insanity, Dr. Woodside rightly noted that they can hardly be characterized as comprehensive evaluations, particularly when, as noted by the assessors themselves, they mainly focused on Mr. Côté’s self-report rather than including reviews of previous records or interviews with collaterals. Since Ms Goldenberg did not refer to these very much either in her cross-examination of Dr. Woodside or in her submissions, I do not consider that they are of much assistance in what I have to decide.

For current purposes, they appear only to be useful to the extent that they somewhat corroborate what Mr. Côté said to others. For example, in the case of the sexual abuse that Mr. Côté reported he suffered from the adult male neighbour, these assessments introduce that subject matter. 3. Ms. T. Costi’s Psychological Assessment (Exhibits 40A & B) [ 58 ] Ms Costi, a senior clinical psychologist on staff at the Pinel Institute in Montreal, assessed Mr. Côté in January 2007 as part of the s.752 assessment ordered by Justice Auger in the Quebec proceedings. She interviewed him and had him complete a battery of tests

over a 6 ¾ hour period. [ 59 ] Much of what Mr. Côté self-reported during Ms Costi’s testing parallels what he said to other professionals, so I do not think any purpose would be served in repeating it here. However, in light of some of the themes that Dr. Woodside later considered significant in his psychiatric formulation I find it somewhat noteworthy that, in discussing Mr.

Côté’s report of his work history, Ms Costi found “striking…that he always tries to blame something outside himself for the setbacks that may happen to him…He seems to exhibit some narcissistic traits” (p.4). [ 60 ] Quite obviously, Ms Costi was not impressed with Mr. Côté’s self-report about his involvement in the various sexual offences. She wrote: “He had difficulty talking about his assaults. He said he was ashamed of them. He was revolted by life and wanted to console himself and live a fantasy. That was how he explained his sexual assaults. He said that he had not been violent.

It was just to have control over the victim. He was not violent. He wanted to control her so that things did not get complicated, but it was not to cause her to suffer through violence. He did not feel that he had done harm to his victims. He wanted to feel the “feeling”. He was very centred on his needs. He was unable to feel empathy with or put himself in the place of his victims. When the first rape occurred in Quebec, he said that he was discouraged. The girl was beautiful. He wanted to experience sexual pleasure. He was incapable of putting himself in the place of his victims. He found that hard to do.

He said that at that time, he had a desire to live. He was unable to answer questions that sought to focus him on the possible effects that his acts had on the victims or what could have caused him to commit the offences. What he said was muddled and fairly meaningless. He talked about shame in particular, which was more related to his image. He said that he felt bad, but there was no affect. There was somewhere a way to control the victims and to break them in the same way that he himself felt broken.

He said that rape was not one of his values, but he was unable to verbalize the effects that rape had on the victims. He intellectualized and brought everything back to himself” (p.6). She went on: “He said that the offences had not been planned – which we can allow ourselves to doubt given the description of the offences and the fact that he denied having made violent threats. He admitted that the [complainant in the first Quebec sexual assault] might have been frightened, but she had allowed it to be done to her and he had not wanted to cause her physical harm.

He did not seem to truly realize what was violent about rape, even though he said that he had done it” (p.7). In discussing Mr. Côté’s “attitude during the evaluation”, she scathingly commented: What was remarkable was that Mr. Côté never answered questions directly. We did not succeed in making him provide clear answers even to questions requiring a yes or no answer. He seemed mistrustful. He was very hermetic. We [14] did not have a lot of content. He did not show himself to be very open. He did not seem genuine. What he said was sometimes difficult to follow and was sometime more or less coherent.

He showed no emotion. He rationalized and intellectualized a lot. What he said was fairly psychological in nature. He was very evasive during the interview; he was elusive. We tried to confront him, but again what preoccupied him was knowing whether this [assessment process] was going to harm him. His sentences were sometimes incomplete, and what he said was sometimes meaningless. Mr Côté talked a lot, but we did not obtain much concrete information” (p.8). As will be seen this same pattern of semi-coherent and unfocused verbalization was extensively noted by Dr. Woodside and Dr.

Abramowitz. [15] [ 61 ] The first instrument administered by Ms Costi was the MMPI-2, a well-known and well-validated psychological test. [16] She interpreted the test results as follows: “He answered like a person who wants to show himself in an extremely positive light, and who wants to minimize his faults and deny having psychological problems. He tried to appear adequate and in control. The probable result is that he underestimates problems. He has little awareness of his problems; he is rigid and inflexible in his approach to problems.

He projects a positive self-image in an excessive way and can show himself to be arrogant and intolerant towards other people’s faults. Mr. Côté is not very likely to look for psychological treatment himself or to fully co-operate with a treatment. He is extremely defensive. The profile shows a pronounced high level on the antisocial and paranoia scales. He answered like someone who is maladjusted and immature, who is focused on his needs, who manipulates and can rebel against authority, is hostile and aggressive, and refuses to accept responsibility for his problems.

He can have a grandiose and exaggerated idea of his abilities and of his personal value, can be impulsive and suspicious, and could present paranoid traits. In his view, the world is threatening and he feels unjustly blamed. He has difficult interpersonal relationships; he feels resentment; he is incapable of compromising with others; he can be manipulative and adopt behaviours to serve his own purposes. He can fly into a rage because he has poor control over his impulses and a low tolerance of frustration. He blames other people for his

problems. When he is frustrated, he could be physically abusive or threatening towards women who are close to him. The evidence is in accordance with a personality disorder with paranoid and passive/aggressive elements. The profile indicates a poor candidate for psychotherapy because he exhibited resistance and a tendency to rationalize and blame others” (p.9). [ 62 ] Ms Costi also administered several other well-known instruments frequently employed by clinicians evaluating sexual offenders.

These were the PCL-R, the SORAG, the Static-99 and the SVR-20. [17] Because these instruments were administered more recently to Mr. Côté by Dr. Woodside, beyond commenting that they seem entirely consistent with what Dr. Woodside found, there would seem to be little point in detailing Ms Costi’s findings. [18] It will suffice to repeat her overall conclusions: “Mr. Côté exhibits passive/aggressive narcissistic traits in terms of his personality, which is not very open and does not exhibit empathy or emotion.

He does not open up and rationalizes using intellectual language….He is in need of in-depth treatment at several levels before he can be rehabilitated and reintegrated into society. The risk may be qualified as being fairly high in dynamic terms because of Mr. Côté’s lack of socialization, his problems in regard to intimate relationships, and his sexual deviance ” (p.11; emphasis added). 4. Dr. M. Gignac’s Psychiatric Report (Exhibits 27A & B) [19] [ 63 ] Ms Costi’s Report was prepared to assist Dr. M.

Gignac, a forensic psychiatrist on staff at the Pinel facility, which had been requested by the Quebec court to conduct a psychiatric assessment of Mr. Côté pursuant to s.752.1 of the Code . In addition to considering her Report, Dr. Gignac developed his own diagnosis of Mr. Côté derived from three interviews. Using the standard DSM- IVR criteria, he diagnosed Mr. Côté as suffering from a “non-specific paraphilia…with elements of sexual sadism”.

He also described him as suffering from a “[n]on specific personality disorder [with] several features from Cluster B personality disorders (antisocial, narcissistic, borderline, histrionic) as well as several traits consistent with passive-aggressive and paranoid” (p.6). [ 64 ] Dr. Gignac also arranged for a phallometric evaluation of Mr. Côté’s sexual preferences to be conducted by another Pinel staff member. Dr.

Gignac concluded that the results of phallometric testing “confirm the profile…[in that] he presented with sexual deviancy and higher penile responses to images of sexual aggression and physical violence”. Dr. Gignac considered that the phallometric evaluation showed the presence of deviant fantasies anchored in sexual aggression and humiliation of women. [ 65 ] It is convenient to pause briefly in the narrative to note that when Dr. Woodside discussed this phallometric testing done at the Pinel Institute, he provided more detail than was contained in Dr. Gignac’s rather brief Report. He wrote: “[Mr.

Côté] was described as showing his highest response to sexual assault focused on humiliation of the women stimuli and it was noted that these responses were higher than his responses to depictions of consenting sexual relationships. It was noted that his deviance index was 4.41 and that a deviance index of the profile higher or equal to one [20] suggested the presence of a deviant sexual preference”. (p.25) [ 66 ] Despite concluding that “the light shed by our evaluation as well as the clinical picture show[ing that] Mr. Côté runs a high risk of recidivism if [untreated]”, particularly given that Mr.

Côté “shows little inclination to recognize the deviant acts of his past behaviours (pp.8-9), Dr. Gignac nevertheless felt that “it is feasible for [Mr. Côté] to reintegrate into the community if…long term psychotherapeutic treatment is put into place”. Even after making allowance for “certain factors which may hinder psychotherapy such as ambivalence, suppression of any responsibility and emotional detachment regarding the seriousness of his acts and their effects on his victims”, Dr.

Gignac proposed that a Long Term Supervision Order following a lengthy custodial term would be preferable to a Dangerous Offender designation and an indeterminate sentence being imposed. He based this in large part on the fact that “no therapeutic treatment had been offered to date” and that Mr. Côté had expressed willingness to undergo psychotherapy. [ 67 ] It should be noted that Dr. Gignac’s original Report contained one potentially significant factual error, in that he had assumed that Mr. Côté had already been found guilty of the Ontario sexual assault offences of August 8, 2000.

When this was brought to his attention by Quebec Crown counsel, he issued an Addendum to his Report (Ex. 29A &

B) in which he indicated that he would have arrived at the same conclusion as in his original Report i.e. “that the risk of offending remains at a level that could be assumed within the community, if measures to deprive him of his freedom are maintained for as long as permitted by law, so that he may benefit from therapeutic treatment provided through a structured program”. [ 68 ] Dr. Gignac’s original Report and this Addendum were filed as part of the proceedings before Superior Court Justice Auger. The transcript of the sentencing proceedings (Exhibit 9, p.16) discloses that Dr.

Gignac’s Report clearly figured in the lawyers’ joint decision to recommend and Justice Auger’s March 6, 2008 decision to impose a 10-year Long Term Supervision Order to follow the 9 year custodial sentence that he imposed.

[ 69 ] Though consideration had been given by the Ontario Ministry of the Attorney General to allowing Mr. Côté to “waive in” and dispose of his Toronto charges by way of a guilty plea to be included in the Quebec proceedings, the Ontario authorities ultimately decided that they were not prepared to consent to the transfer of his charges to Quebec, and Mr. Côté was then brought to Ontario to face the charges to which he has now pleaded guilty before me. Because defence counsel now acting for Mr.

Côté has expressly abandoned the “s.7” motion challenging the fairness of that refusal, I no longer need to consider whether the Ontario Crown should now be estopped from proceeding further. I mention this only to complete the record of proceedings. DR. ABRAMOWITZ’ PSYCHOLOGICAL ASSESSMENT [ 70 ] I have previously indicated that it was Dr. Abramowitz’ conclusion that the results of the various instruments she administered to assess Mr. Côté’s reading and verbal comprehension are “likely to be a valid indication of his cognitive abilities”.

She considered that his “current intellectual functioning, as measured by a measure of non-verbal problem solving, was in the average range…consistent or slightly higher than his educational and occupational attainment…[He] demonstrated low average to average performance on tests of focused attention, visual-spatial functioning, cognitive interference and executive functioning. He performed in the borderline to mildly impaired range on a test of divided attention…[which] appeared to be primarily a result of generalized slow psychomotor performance” (p.6). She thus concluded that “Mr.

Côté’s current functioning is not suggestive of any significant difficulties that would bear on [21] his commission of sexual offences” (p.7). [ 71 ] Dr. Abramowitz similarly considered that Mr. Côté’s profile on one test of personality and psychopathology “[are] thought to be a valid indicator of his emotional functioning”. However, she was careful to note that: “[a]lthough his response style is considered valid on this measure, he tended to exhibit satisfaction with himself as he is, and did not endorse any marked distress or need for change.

This may impact his motivation toward and perseverance with potential treatment efforts” (p.7). [ 72 ] I have carefully compared what Dr. Abramowitz noted about Mr. Côté’s overall presentation with what had been said some years previous by Ms Costi. Though Dr. Abramowitz’ Report does not expressly reference Ms Costi’s Report, I find a considerable measure of consistency in the reports of the two psychologists, which, together with what I shall now discuss about Dr. Woodside’s formulation, unfortunately paints a rather bleak picture about Mr.

Côté’s overall “treatability” either while incarcerated or in the community under supervision. DR. WOODSIDE’S PSYCHIATRIC OPINION AND RECOMMENDATIONS [ 73 ] Dr. Woodside’s assessment of Mr. Côté’s “Overall Mental Status” was that though “he gave the appearance of cooperation…[he] did not directly answer questions asked of him, often answering with platitudes and self- serving statements.

He was also very difficult to redirect, continuously returning to themes of his needing forgiveness and wanting to live a normal life in future…Thought form was coherent but overinclusive and perseverative, along themes as noted above…He was alert but appeared to have very limited insight. His judgment was felt to be poor” (pp. 32-33). Dr. Woodside amplified this in his testimony. In attempting to “pin down” Mr.

Côté about particulars of how his perceived mistreatment by the California complainants had somehow led him several years later to commit a string of extremely violent sexual offences against total strangers, Dr. Woodside noted that Mr. Côté “tended to speak in a very impressionistic way and in generalities rather than providing more detailed or clear answers to questions posed to him and he really directed and controlled the interview process. It was difficult to focus him” (Transcript, June 20, 2012, p. 64, lines 25-29).

[ 74 ] Dr. Woodside developed these themes of limited insight and poor judgment at later points in his Report. He first noted the portion of Dr. Abramowitz’ Report I have just quoted, namely that “psychological testing has revealed [Mr. Côté] is largely satisfied with himself, which pose[s] a barrier to successful treatment” (p.44). Secondly, in his

Summary, Dr. Woodside writes: “Overall, I believe Mr. Côté’s risk to re-offend (primarily sexually) could potentially be managed successfully in the community with a combination of psychological treatment, treatment with sex-drive reducing medication and very intensive supervision over a prolonged period of time. What is not clear is whether Mr. Côté will participate in treatment in a meaningful fashion or whether he is capable of benefiting from the same.

His personality is such that one can anticipate very significant difficulty attempting to engage him in psychological treatment and he has already expressed considerable ambivalence regarding treatment with sex-drive reducing medication ” (p. 45; emphasis added). [ 75 ] Though he had considerably more information available to him than Dr. Gignac did, it is noteworthy that Dr. Woodside’s psychiatric diagnosis does not significantly differ from that contained in Dr. Gignac’s 2007 Report. Dr. Woodside applied the DSM- IV(

R) criteria to make a “provisional” diagnosis of Mr. Côté as “suffering from a personality disorder, not otherwise specified with primarily narcissistic traits, along with some passive-aggressive traits. I believe he also clearly suffers from a paraphilia not otherwise specified, specifically a non-consenting, coercive sexual interest (sometimes referred to as a “rape preference”). [22] It is also possible that he suffers from sexual sadism. Finally, it is possible that he also suffers from an inappropriate age preference, pedohebephilia” (p. 33).

In his testimony he said that there were only marginal and relatively unimportant differences between his diagnostic formulation and that of Dr. Gignac. [ 76 ] On the question of Mr. Côté’s personality disorder, Dr. Woodside pointed to consistent evidence of Mr. Côté’s sense of grandiosity and sense of entitlement - as well as his lack of empathy - as providing “substantial evidence” for the existence of such a disorder (p.34). Dr. Woodside amplified this in his testimony. Based on both his own contacts with Mr. Côté and from reviewing the records Dr.

Woodside considered that there was considerable evidence of Mr. Côté manifesting both narcissistic and passive-aggressive personality traits: “[T]hat involves people who show a kind of negative attitude and passive resistance to requests that are made of them. They often feel that they are being treated unfairly or misunderstood, feel that great injustice has been meted out towards them. They complain without really taking responsibility for their own actions as it may relate to difficulties that they’re experiencing…I thought there was fairly good evidence for that for Mr.

Côté” (Transcript, June 20, 2012 p.29, lines 15-22). [ 77 ] Examining the record of what Mr. Côté was prepared to tell Dr. Woodside and other mental health assessors, the facts of the offences of which Mr. Côté has been found guilty (particularly the number of victims and the fact that these were all strangers), and the result of phallometric testing, [23] Dr. Woodside had “little hesitation” in making the diagnosis of “Paraphilia Not Otherwise Specified – Non-Consenting, Coercive Sexual Preference” (p. 35). [ 78 ] Turning more specifically to the question of risk assessment, Dr.

Woodside reported his scoring of several well-known actuarial instruments. On the Psychopathy Checklist – Revised (PCL-R), Dr. Woodside scored Mr. Côté 20 out of a possible 40 points. [24] While “[t]his score would be considered significantly elevated compared to scores found in the general population [it was] somewhat below average for a prison inmate population”. [25] Thus, Dr. Woodside fairly noted that “[i]n and of itself, [this result] would not be significantly predictive of future general and violent recidivism” (p.38). [ 79 ] Ms Goldenberg brought out in cross-examination that Dr.

Woodside did not diagnose Mr. Côté as suffering from an antisocial personality disorder, as his score on the PCL-R did not reach that level. [26] However, he was clear that he found “anti-social traits certainly present for him” (Transcript, June 21, 2012, p.53, lines 18-19). [ 80 ] In his Report Dr. Woodside described that the PCL-R is divided into two subscales. The first attempts to measure “exploitive values and attitudes” while the “Factor Two” subscale “address[es] indicia of behavioural dyscontrol” (p. 37), broadly defined as factors relating to “social deviance” or “criminality”.

Ms Goldenberg brought out in cross-examination that Dr. Woodside had scored Mr. Côté between the 15 th and 20 th percentile, which meant that “his score was lower than about 80 per cent of the people in jail on the Factor Two items” (Transcript, June 21, 2012, p. 61, lines 11-14).

[ 81 ] PCL-R scores comprise a significant component of two of the other frequently used (and well-validated) risk assessment instruments, the Violence Risk Appraisal Guide (VRAG) and the Sex Offender Risk Appraisal Guide (SORAG). Dr. Woodside administered both of these instruments to Mr. Côté, and personally scored them. On the VRAG Mr. Côté attained a score of +2, placing him in the 56 th percentile among male offenders in the development sample. After making allowances for estimated measures of error in the development of a “true” score, Dr.

Woodside concluded that “the expected probability of violent recidivism is expected to range between 31% and 58% within 10 years of opportunity” (p.38). On the SORAG “Mr. Côté obtained a score of +18…[which] placed [him] at the 79 th percentile in the development sample”. After similarly making allowances for estimated measures of error associated with this instrument, “the expected probability of violent recidivism is expected to range between 59% and 80% within 10 years of opportunity” (pp.38-39). In cross-examination Ms Goldenberg brought out that Dr.

Woodside was prepared to concede that “the SORAG is not a particularly potent predictor of sexual recidivism” (Transcript, June 21, 2012, p. 62, line 17); he explained that this was why he preferred to use the Static-99 instrument. [ 82 ] It is noteworthy that the scores found by Dr. Woodside on these instruments do not significantly differ from what Ms Costi had found some years earlier. [ 83 ] Dr. Woodside additionally administered two versions of the Static-99 screening tool, designed to identify individuals at risk for future sexual offending.

These instruments presently have more limited reliability and validity, because they “take into account only a limited number of factors known to be related to sexual recidivism, and only those that can typically be scored on the basis of historical information alone (i.e. without an interview being necessary)” (p. 39). He found Mr. Côté’s score to be “6 out of a possible 12…[which is] higher than 88% of individuals in the development sample…[Such a score] is associated with the highest risk category…individuals falling in this risk category offended at a rate almost three times that of the average sex offender”.

On the Static-99R, a revised instrument that takes greater account of age in estimating risk for sexual re-offending – in the sense that an offender’s risk generally continues to fall with advancing age, Mr. Côté scored +5, placing him in the second-highest category, the “moderate-high risk category” (p. 39). [27] [ 84 ] Under cross-examination Dr.

Woodside was entirely prepared to concede the limitations of actuarial instruments as predictors, in that they can only describe where an individual fits on a scale, as opposed to what a particular individual may (or will) actually do (Transcript, June 21, 2012, p. 74, line 1 – p.78, line 5). However, balancing the outcomes of actuarial measures with his clinical assessment, Dr. Woodside concluded that: “Mr. Côté sufficiently closely resembles the individuals used in the original samples in devising all of these instruments that there is no reason the instruments should not be applicable to him.

As well, there is nothing in this individual’s clinical presentation or history to suggest that these risk estimates are over-estimates. Mr. Côté clearly embodies some of the clinical variables related to violent recidivism, including more significantly, the presence of a sexually deviant preference and a personality disorder. Many of these variables should likely be considered static variables, which will not be specifically responsive to intervention. I would view Mr. Côté as being at moderate to high risk for violent sexual recidivism from a purely clinical perspective, as well.

Consideration of dynamic factors which relate to fluctuating or situational factors (such as response to treatment and supervision , treatment of alcohol and substance dependence difficulties, etc.) does not suggest a lower overall risk in this individual , although it does highlight areas where one might hope to intervene and better manage Mr. Côté’s risk” (pp.39-40; emphases added). [ 85 ] Balancing Mr.

Côté’s history (as reported by himself and others), the facts of the offences committed, the results of psychological and phallometric testing, the results derived from the administration of actuarial instruments, all combined with his clinical impressions, Dr. Woodside concluded that from a psychiatric perspective Mr. Côté fits within several of the threshold

definitions of Dangerous Offender status as described in s.753 of the Code (pp.40-41). Applying the legal tests to the psychological and psychiatric evidence I entirely agree with Dr. Woodside’s conclusion. [ 86 ] Because Ms Goldenberg conceded – I think quite rightly - that Mr. Côté falls within several of the dangerous offender definition sections of the Code , I do not intend to spend any more time on this threshold issue in these reasons, and now turn to the more substantive question of whether the risk Mr. Côté presents can eventually be managed in the community.

THE EVIDENCE CONCERNING WHETHER “THERE IS A REASONABLE POSSIBILITY OF EVENTUAL CONTROL OF THE RISK IN THE COMMUNITY” [ 87 ] An “LTSO finding” – as it is often called in shorthand parlance – is comprised of two components: a period of at least two years in custody, followed by a period of up to 10 years under community supervision. Dr. Woodside could obviously not have known what length of custodial sentence might be ordered to be served prior to the commencement of the community supervision order. Nor would Dr. Woodside likely have much idea what future treatment modalities might be made available to Mr.

Côté while incarcerated – not the least given the substantial cutbacks that have recently been announced for federal correctional funding. Similarly, while Dr. Woodside could – and did - make some predictions about Mr. Côté’s general motivation to take advantage of treatments that might be offered, he could not know much about what might happen to Mr. Côté during future incarceration. About all he could reasonably recommend on this issue was that: “Mr.

Côté should access and complete a wide variety of programs during a period of incarceration, including, but not limited to, cognitive skills, anger management, individual counselling and sex offender treatment” (p.46, Recommendation 1). [ 88 ] Given these uncertainties, it is therefore not surprising that this portion of Dr. Woodside’s Report primarily addresses the question of monitoring and treating Mr. Côté in the community (or in preparing him for release into the community during the last portion of any period of incarceration). In this regard Dr.

Woodside did make both general and specific comments and recommendations in three areas that I have found helpful in deciding the core question of whether a lengthy custodial sentence followed by an LTSO Order would be a more appropriate disposition than a dangerous offender designation accompanied by an order for indeterminate detention. 1. Age [ 89 ] Dr.

Woodside did note in his Report that: “[a]ccording to the research literature, there does appear to be a general decrease in violent offending among all individuals after the age of 40 to 45” (p.42). [ 90 ] In order to better contextualize this comment, following the completion of Dr. Woodside’s testimony, I wrote to federal sentence administration officials (on notice to counsel) to request that they conduct detailed sentence calculations based on the alternative positions of counsel. Mr. Côté is presently 50 years of age (DOB June 4, 1962).

These officials advise (Exhibit 42) that if I adopt the position of the Crown and impose a custodial sentence of 12 years consecutive to the sentence he is now serving, Mr. Côté’s Statutory Release Date on this combined sentence (calculated pursuant to s. 127(3) of the Corrections and Conditional Release Act ) will be March 6, 2022, at which point he will be 59 years old. [28] If I adopt the position advocated by the defence of 4 years consecutive, Mr.

Côté’s Statutory Release Date will be November 4, 2016, at which point he will be 54 years of age. [ 91 ] The sentence administration officials provided further information about the implications of having either of these custodial sentences followed by a 10 year LTSO order. They advise that the relevant dates would result in supervision until March 4, 2039 if I am to adopt the Crown’s submission. At that point Mr. Côté would be 76 years old. If I am to adopt defence counsel’s submission Mr.

Côté would be subject to an LTSO Order until March 4, 2031, at which point he would be 69 years old. [ 92 ] Of course, if I designate Mr. Côté to be a dangerous offender and decide not to exercise my discretion to impose a definite sentence, he becomes subject to the control of the Parole Board of Canada for the rest of his life. The Board may decide never to parole him, or, if he is paroled he is subject to being ordered back into custody at any point, as his indeterminate sentence never expires. [29] [ 93 ] The question of what has been termed “burn-out theory” was further discussed during Dr.

Woodside’s testimony, specifically as a follow up to that portion of his Report dealing with the general concept that there is less likelihood of violent offending as offenders age. Dr. Woodside conceded that some of his professional colleagues consider that “by age 60 risk of sexual offending is, in essence, zero” (Transcript, June 21, 2012 p. 40, lines 20-21). Dr. Woodside strongly disagreed with this view – “it mocks actual experience”.

In his opinion, though the general trend might be that sexual offending across the entire population decreases substantially by age 60, “[t]he difficulty is we don’t have any good guidelines about which individuals [this does not apply to]” (Transcript, June 21, 2012, p. 41, lines 4-5). He provided anecdotal evidence from his own practice that he has had several patients who either committed their first sexual offence after age 60 or who re-offended sexually after that age.

[ 94 ] During his testimony, the converse proposition was briefly discussed when Dr. Woodside was asked whether Mr. Côté’s apparently late onset of sexual offending – at age 39 – made any difference in formulating the risk that the offender presents. In examination in chief he agreed that “that’s late in life to begin raping mature women, or relatively mature women”.

Under cross- examination he said that among the approximately 80 offenders he has assessed as part of dangerous offender proceedings, he felt that very few “had no prior history of violent offending prior to their index offence” (Transcript, June 21, 2012, p. 79, line 28 – p.80, line 2). However, Dr. Woodside characterized this late commencement of criminal sexual activity as a “relatively neutral” factor overall (Transcript, June 21, 2012, p.42, line 22 – p. 43, line 19). [ 95 ] Under cross-examination Dr.

Woodside conceded that “there is a steeper decline…in issues of adult rape…compared with pedophilic offenders” (Transcript, June 21, 2012, p. 72, line 29 – p. 73, line 5). [ 96 ] Dr. Woodside made some recommendations directed at maintaining community safety that are directly related to Mr. Côté’s age. The most important of these is that “any system of monitoring and conditions that are put in place for Mr. Côté remain in place for the rest of his life, or at a minimum, until he reaches his late sixties or early seventies” (p.45). More specifically, Dr. Woodside recommended that “Mr.

Côté should undergo sexual offender treatment programming…ideally…on a lifetime basis” (p.46, Recommendations

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