R. v. Simpson, 2013 ONCJ 463

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Citation: R. v. Simpson , 2013 ONCJ 463 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DEVON SIMPSON Before Justice T. Lipson Reasons for Judgment released on August 22, 2013 Mr. B. Jones .............................................................................................................. for the Crown Mr. W. Jaksa ................................................................................... for the accused Devon Simpson

LIPSON J.: RULING ON DANGEROUS OFFENDER APPLICATION AND REASONS FOR SENTENCE [ 1 ] On August 16, 2011 the accused, Devon Simpson, pleaded guilty to three counts of sexual assault. He has been detained in custody since his arrest on November 13, 2010. In its written submissions, The Crown seeks an order that Mr. Simpson be designated as a Dangerous Offender and that he receive either an indeterminate sentence or, in the alternative, a determinate sentence of 10 to 12 years to be followed by a ten-year Long Term Offender supervision order.

Should the court decline to designate the accused as a Dangerous Offender, the Crown seeks an order that he be designated a Long Term Offender and receive a sentence of 10 to 12 years and a consecutive supervision order for 10 years. Circumstances of the Offences [ 2 ] The parties submitted the following agreed statement of facts concerning the offences to which Mr. Simpson pleaded guilty: N.R. – September 6, 2006 On Wednesday, September 6 th , 2006, at approximately 10:30 pm, N.R. (31), was outside of H[…] Shelter, in the city of Toronto. N.R. had been residing at the shelter for approximately three months.

The shelter is located around D[…] Avenue and D[…] Road. Devon Simpson approached N.R. They were strangers to each other. He engaged her in conversation, and asked her if she wanted to go for a walk to get some crack cocaine. N.R. and Simpson walked down a nearby alleyway. As they passed behind a parked vehicle in the alleyway, Simpson took hold of N.R.’s left arm and twisted it behind her back. N.R. was in pain. Simpson told N.R. if she yelled he would hurt her. He undid his pants and placed his penis between her breasts and ultimately ejaculated. N.R. resisted and was able to break free.

She fled and disclosed what had happened to her. Police were contacted. N.R. was transported to hospital by ambulance. A sexual assault evidence kit was completed. Her clothing was also seized. On October 9 th , 2007, DNA found on N.R.’s clothing was matched to Simpson’s. L.B. – June 2, 2008 On Monday June 2, 2008, at 9:30 p.m., L.B. (16), left her group home located at C[…] Avenue, Toronto, to go for a walk. As she walked towards George Webster Public School located at 2 Cedarcrest Blvd, she was approached by Simpson. Simpson introduced himself as “Chris” and asked her if she remembered him from school.

She said she did not. Simpson continued to walk with L.B. and offered her some drugs. She refused them. As they passed by the school yard, Simpson pulled her into it. He pulled her behind a tree, lifted up her top and placed his mouth on her right breast. He pulled her pants down, bent her over and penetrated her vagina with his penis. L.B. felt scared and froze. She told Simpson she had to go home. Simpson fled and L.B. returned to her group home. She disclosed what had happened to her. She was transported to hospital and a sexual assault evidence kit was completed.

DNA analysis later completed matched a sample taken in the sexual assault evidence kit to Simpson. K.M. – November 2, 2010 On November 2, 2010, K.M. (13), at approximately 3:15 pm was walking home from school, alone, in the city of Toronto. Simpson called out to her by name and engaged her in conversation. They walked together and he led her into Knob Hill Park located at 625 Brimley Road, Toronto. Simpson told her he was 17 years old and went to school with a mutual friend. He invited her to have sex with him. He told her she could “experience it” and then be able to tell her friends about it.

Simpson also offered her alcohol and drugs. K.M. refused all advances and offers. Simpson grabbed her by the arm and pushed her into the park. He took her into an area with trees and bushes. He pushed her to the ground and took off her pants. He stuck his penis into her anus. She screamed for him to stop. He didn’t. He also put his penis into her vagina. A stranger passed by at some point and Simpson fled. K.M. was bleeding from injuries sustained during this assault. She ran and contacted relatives to help her. She attended at hospital and a sexual assault evidence kit was completed.

DNA analysis later completed matched a sample taken in the sexual assault evidence kit to Simpson. [ 3 ] The court received victim impact statements from N.R., K.M. and K.M.’s mother S.M., all filed as Exhibit 2. These statements poignantly describe the significant emotional and physical suffering Mr. Simpson caused to the victims and their families. Circumstances of the Offender [ 4 ] Mr. Simpson is 34 years of age. At the time of his arrest he was living with his mother, father and brothers. He was unemployed and supported himself by Ontario Works. He is single and has no children. He has a grade 11 education.

In his report to the court, Dr. P. Klassen, a forensic psychiatrist, provides a comprehensive personal and developmental history of the accused. Mr. Simpson’s criminal record is reproduced below. It includes four prior findings of guilt for crimes of violence including one against his then 16-year-old girlfriend. He also has four convictions for failing to comply with court orders and one prior crime of communicate for the purpose of

prostitution. Three crimes of violence were committed while he was bound by a probation order. Offence Date Crime(

s) Conviction Date Sentence August 9, 2001 Threatening Bodily Harm : s. 264.1(1)(

a) May 3, 2002 Conditional Discharge + 6 months probation. June 8, 2005 Communicate F.T.P. Prostitution: s. 213(1)(

c) September 19, 2005 S.S. + 12 months probation (Ordered to complete “John School”) September 6, 2006 Sexual Assault: s. 271 (Victim: N.R.) August 16, 2011 This crime is awaiting sentence as part of this hearing. Simpson was bound by the probation order dated September 19, 2005 , when he committed this offence. August 17, 2007 Theft Under $5000: s. 334 Assault with intent to resist arrest: s. 270(1)(

b) August 28, 2007 (12 days pre-trial custody) 1 days custody + 12 months probation September 15, 2006 December 12, 2006 FTC Probation: s. 733.1(1) FTA Court: s. 145(2)(

b) February 26, 2008 (7 days pre-trial custody) S.S. + 6 months probation $400 fine

June 2, 2008 Sexual Assault: s. 271 (Victim: L.B., 16 years of age) August 16, 2011 This crime is awaiting sentence as part of this hearing. Simpson was bound by the probation order dated August 28, 2007, when he committed this offence. July 7, 2008 Assault: s. 266 (Victim: J.P.K., 16 years of age.) Cause Disturbance: s. 175(1)(

a) November 28, 2008 (2 days pre-trial custody) S.S. + 18 months probation 110 order: 5 years (The victim was his girlfriend, who was only 16 years of age. Simpson was still bound by his probation order from August 28, 2007 when these offences occurred.) July 7, 2008 “Over 80”: s. 253(1)(

b) November 28, 2008 $800 fine 1 year driving prohibition June 27, 2009 Theft Under $5000: s. 334 December 16, 2009 S.S. + 6 months probation Between April 22, 2010 and May 27, 2010 FTC Probation x 2: s. 733.1(1) September 27, 2010 (10 days PTC) + 20 days custody April 26, 2010 Assault: s. 266 FTC Probation: s. 733.1(1) November 5, 2010 (3 days PTC) S.S. + 1 year probation 110 order: 10 years DNA (secondary) November 2, 2010 Sexual Assault: s. 271 (Victim: K.M., 13 years of age) August 16, 2011 “Predicate Offence”

Psychiatric Evidence [ 5 ] Dr. Percy Wright, an experienced forensic psychologist, assessed Mr. Simpson and prepared a report dated February 14, 2012 and filed as exhibit 4. Dr. Wright testified that he assessed the accused’s cognitive functioning to assist in understanding Mr. Simpson’s risk factors and the accused’s ability to benefit from treatment. In both his report and testimony, Dr. Wright concluded that Mr. Simpson has a tendency to under-report his difficulties and deny any shortcomings. Mr. Simpson demonstrated a “rather low” motivation for treatment.

The accused seemed “rather satisfied with himself the way he is, despite his legal and lifestyle setbacks.” Dr. Wright concluded from testing that the accused’s cognitive functioning was in the lower

section of the borderline range, below 97% of his same age peers. However, according to Dr. Wright, his cognitive limitations are not deemed serious enough to interfere with his ability to benefit from traditional correctional programming. Personality testing indicated that a “significant degree of denial” will need to be addressed before meaningful change through programming would be possible. [ 6 ] Dr. Phillip Klassen is an experienced forensic psychiatrist who assessed Mr. Simpson pursuant to an order given under

section 752.1 of the Criminal Code . He interviewed the accused for approximately five hours and prepared report dated May 1, 2012. Dr. Klassen requested that Mr. Simpson undergo phallometric testing. On the advice of counsel, the accused declined. Dr. Klassen also requested permission to speak to family members and Mr. Simpson’s former girlfriend but for various reasons was unsuccessful. [ 7 ] During the interview, Mr. Simpson professed remorse for his offending behaviour but then later denied all wrong-doing. He indicated that he engaged in criminal behaviour because he was not working.

He denied lying behaviour and also denied acting impulsively but said that he tends to plan his actions. [ 8 ] Dr. Klassen diagnosed Mr. Simpson as suffering from a personality disorder with antisocial traits where there is a pervasive pattern of disregard for, and violation of, the rights of others. Some of the traits associated with this disorder include failure to conform to social norms with respect to lawful behaviours, deceitfulness, impulsivity, irritability and aggressiveness and lack of remorse. Dr. Klassen also diagnosed the accused with borderline intellectual function. As well, he diagnosed Mr.

Simpson with paraphilic coercive disorder. Individuals with such a disorder “not infrequently display increasing severity of offending behaviour, and not infrequently continue to offend, until apprehended”. He concluded that his disorder is “likely the principal driver of this gentleman’s predicate offending.” [ 9 ] With respect to the important subject of risk assessment, Dr. Klassen employed three main actuarial tools: the Psychopathy Checklist (PCL-R), the Sex Offender Appraisal Guide (SORAG) and the STATIC-99R.

Actuarial methods provide probabilistic estimates of risk based on empirically established relationships between predictors and the outcome of interest. Probabilistic estimates of risk indicate the percentage of people with the same score, on a given metric or risk assessment tool, who would be expected to re-offend within a defined period of opportunity. Dr. Klassen reported the following: To score an individual using the PCL-R, a rater must be trained in the same. I am so trained. My score for this gentleman, with two items omitted and prorated, is 22 out of a possible 40 points.

A score of 22 is a moderate score. A score of 22 places this gentleman on approximately the 48th percentile, with respect to a reference sample of North American offenders. Put another way, 48% of North American offenders would be expected to have a lower score, on this instrument, than this gentleman, accordingly he’s near the mean, for this group.

A score of 22 is certainly higher than one would see in the general population, and would be expected to convey increased risk of future offending behaviour, and to convey risk of difficulties with treatment and/or supervision (consistent with his history), albeit a score of 22 is not a score that should give rise to therapeutic nihilism. In my opinion, the two best available, and most widely used, instruments purpose-built for sex offender recidivism are the STATIC-99R and the SORAG. My score for this gentleman on the STATIC-99-R is 5. Qualitatively, this is a moderately high score.

A score of 5 places this gentleman on the 88th percentile, with respect to reference or standardization sample. Similar scoring individuals recidivated 2.7 times more frequently than the “average” sexual offender. Recent data regarding recidivism indicates that similarly scoring individuals recidivated violently (sexually or non-sexually) at rates of 42% to 46%, over 10 years opportunity in the community, and recidivated sexually at rates of 23% to 35% over 10 years opportunity.

It should perhaps be noted that this gentleman presents with what has been described as an “index cluster”; he presents with multiple sex offenses, albeit without apprehension and adjudication between those offenses. The STATIC-99R and the SORAG treat an index cluster differently; for the purposes of the scoring the STATIC-99R, this gentleman is considered to have no prior sexual convictions. This is not the case with the SORAG. My score for this gentleman on the SORAG is 26. A score of 26 places this gentleman on the 93rd percentile, with respect to the reference or standardization sample.

Similar scoring individuals in the reference or standardization sample violently or sexually at a rate of 89%, over 10 years opportunity in the community. Qualitatively, this might be described as a moderately high to high score. The reader will note a number of issues, taking into account the PCL-R, the SORAG, and the STATIC-99R. First, the reader will note that this gentleman’s STATIC-99R and SORAG score, in terms of percentile , are higher than his PCL-R score, perhaps consistent with the notion that personality factors are not the principal driver of this gentleman’s offending behaviour.

Secondly, the reader will note considerable concordance between this gentleman’s STATIC-99R, and SORAG, percentile scores; roughly speaking, he falls on approximately the 90th percentile, in terms of probability of recidivism, on these instruments. Third, the reader will note that there’s a disconnect between the probabilistic estimates of risk offered by the STATIC99-R, and the SORAG. There are a number of reasons that can account for this. First, these instruments use differing

definitions of re-offense; the STATIC99-R uses conviction as the dependent variable, whereas the SORAG uses charges or convictions. I’m informed by the authors

of the SORAG (personal communication) that generally speaking if one used convictions only, their probabilistic estimates of re-offensewould be approximately 10% lower. Further, and as indicated above, the STATIC-99R treats an index cluster as a single, index, offense,and works on the basis that the individual has had no prior sexual offenses; if this was not the case, this gentleman’s score on theSTATIC99-R would be 7, and his probability of violent recidivism would fall in the range of 50% to 65%. Further, base rates of sexualand violent recidivism have fallen, decade over decade, for the past several decades.

While the reasons for this are not entirely clear, thisdoes have an impact on probability of re-offense; the authors of the SORAG have cautioned that their probabilistic estimates of re-offense, derived from samples returned to the community a number of decades ago, likely (currently) represent overestimates of risk. It’sindicated that new probabilistic estimates of re-offense for the SORAG, are likely to be forthcoming shortly.

Unfortunately, and with respect to the issue of “probability” of re-offense, this leaves us in somewhat of a difficult situation, I am not in aposition to state unequivocally whether this gentleman does or does not present with a likelihood of re-offense. Taken together, it is my opinion that this gentleman is likely at moderate to moderately high risk of violent or sexual re-offense. Clinical judgment should be introduced into the probabilistic portion of the risk assessment process only when deemed absolutelynecessary, lest one risk degrading the accuracy of one’s risk assessment.

I see no indications for the introduction of clinical judgment, inthis case. In addition to probability, risk assessment also entails addressing issues of imminence, frequency, and severity. In these domains, we areleft with clinical judgment alone. Imminence could be considered to be live insofar as gentleman engaged in sexual misbehaviourapproximately every 18 to 24 months, once he started. Frequency is likely live, given that an individual with a paraphilic coercivedisorder will tend to continue to offend, once they begin, until apprehended or re-apprehended.

Severity is clearly a live issue, given thisgentleman’s predicate offenses. [10] Most importantly, Dr. Klassen wrote and testified that he didn’t believe he was in a position to state that Mr. Simpsonpresents with a likelihood of sexual or violent re-offence – the probabilistic estimates of re-offence “likely hover around the 50% mark”. [11] Dr. Klassen was of the opinion that Mr. Simpson will require significant sex-offender treatment programming found only atCorrectional Services of Canada. Dr. Klassen believes that despite his borderline functioning, Mr.

Simpson has sufficient cognitivecapacity to learn and to potentially benefit from sex offender treatment. The accused may also be a candidate for pharmacological sex-drive reduction. [12] The court also considered the affidavit of Steve Popovski who is a Parole Officer Supervisor with Correctional Services ofCanada (CSC). This affidavit and accompanying materials were admitted into evidence on consent.

The affidavit provided the court witha comprehensive description of the responsibilities of institutional and community parole officers, the parole-decision making process,recommendations made to the Parole Board of Canada, residency condition issues for Long-Term Supervision offenders and othersentencing issues. The affidavit was submitted for informational purposes and is not related specifically to this matter. Positions of the Parties [13] Crown counsel indicated he was bound by Ministry policy to seek a dangerous offender designation for Mr. Simpson.However, Mr.

Jones, on behalf of the Crown, candidly acknowledged that given Dr. Klassen’s opinion, the evidence clearly tended tofavour a long-term offender designation. He submitted that in addition to such a designation, Mr. Simpson should be given a sentence inthe ten- to twelve-year range less credit for pre-sentence custody. Mr. Simpson has served the equivalent of a just over four years whenpre-sentence custody is calculated on a 1:5 to 1 basis. Counsel for the accused agreed that it would be appropriate for the court todesignate Mr. Simpson as a long-term offender. Mr. Jaksa sought a nine-year determinate sentence.

Crown and defence agree that Mr.Simpson be subject to a long-term supervision order for ten years, a

section 109 weapons prohibition for life, a

section 161 order and aDNA order. Applicable Law [14] The law in this area is succinctly summarized by Di Giusseppe J. in the recent case of R. v. Moonias, 2013 ONCJ 126, [2013] O.J. No 1160 at paras 33-39 as follows: The Dangerous Offender and Long Term Offender provisions of the Criminal Code are set out in

Part XXIV sections 752 to 759.Section 753(1)(

a) deals with Dangerous Offender Applications and states as follows: On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be adangerous offender if it is satisfied (

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

a) of thedefinition of that expression in

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

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

restraint. A serious personal injury offence is defined in s. 752 of the Criminal Code as an indictable offence involving the use of violence againsta person and for which the offender may be sentenced to imprisonment for ten years or more. Aggravated assault is a serious personalinjury offence.

Section 753.1 of the Criminal Code deals with Long Term Offender Applications. It states as follows:

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find anoffender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has beenconvicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community.

When the offender meets the requirements of s. 753(1) of the Criminal Code and is declared a Dangerous Offender, the court mustimpose either an indeterminate sentence, a determinate sentence for the offence for which the offender has been convicted and order himto be subject to long term supervision for a period that does not exceed 10 years, or impose a sentence for the offence for which theoffender has been convicted. (s. 753(4) of the Criminal Code) In determining the appropriate sentence for a Dangerous Offender, the court must consider s. 753(4.1) of the Criminal Code whichprovides as follows: 753(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4) (

b) or (c)will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

If the offender is not found to be a Dangerous Offender, the court may treat the application as a Long-Term Offender Application, andeither declare the offender to be a Long-Term Offender or conduct another hearing, or impose a sentence for the offence for which theoffender has been convicted. (s.753(5) of the Criminal Code) If the offender is found to be a Long Term Offender, the court shall imposea sentence for the offence for which the offender has been convicted and order the offender be subject to long term supervision for aperiod that does not exceed 10 years. (s 753.1(3) Criminal Code) Proceedings under the Dangerous Offender sections of the Criminal Code are part of the sentencing process.

Accordingly, in addition tothe provisions of s. 752 to 759.1, the court must consider the fundamental purposes and principles of sentencing set out in sections 718 to718.2 of the Criminal Code, including considering less restrictive sanctions if it would attain the same sentencing objective as a morerestrictive sanction. The court must also pay particular attention to the circumstances of Aboriginal offenders. Particularly important inthe context of a Dangerous Offender Application are the principles of proportionality and restraint. (s.718.1 and s.718.2(

a) and (

e) of theCriminal Code) (see R. v. Johnson, 2003 SCC 46 , [2003] 2 S.C.R. 357, at para 28). [15] After discussing how the principles in Gladue applied to Mr. Moonias, the court went on to make these important generalobservations: I must bear in mind, however, that the paramount purpose of the Dangerous Offender legislation is to protect the public. It is apreventative detention scheme designed to address those offenders with a propensity for serious crimes of violence.

While it is certainlyappropriate to consider issues of rehabilitation and the treatability of an offender given his particular behaviours, that inquiry must beconducted within the context of the broader overarching purpose of the legislation; to protect the public. Still, due consideration must begiven to all the sentencing objectives set out in the Criminal Code, paying particular attention to the circumstances of Aboriginaloffenders. The burden of proof rests with the Crown to establish beyond a reasonable doubt the elements contained in s. 753(1)(

a) of the CriminalCode, namely that 1. the offender has been convicted of a serious personal injury offence, and 2. he constitutes a threat to the life, safety or physical or mental well-being of others because of a pattern of repetitive behaviour that willlikely cause death, injury or serious psychological damage, or a pattern of persistent aggressive behaviour showing substantialindifference to the reasonably foreseeable consequences of such behaviour. The patterns of behaviour described in s. 753(1)(

a) of the Criminal Code are determined not only by the number of offences, thepredicate offence being one within the pattern, but also the similarity in the offender's behaviour on these occasions. (see R. v. Langevin(1984), (ON CA), 11 C.C.C. (3D) 336 (Ont. C.A.)). There may be differences, but core similarities must exist in orderfor the pattern to be established. Analysis [16] There is no dispute that the primary purpose of the Dangerous Offender and Long Term Offender regimes is the protection ofthe public.

When either designation is granted, it has traditionally amounted to a judgment that, in the circumstances before the court, therelative importance of rehabilitation, deterrence and retribution as sentencing objectives is attenuated and that of preventative detentionscorrespondingly increased: see R. v. Johnson (2003), 2003 SCC 46 , 177 C.C.C. (3d) 97 (S.C.C.), at paras. 19 and 29; R. v.Lyons, (SCC), [1987] 2 S.C.R. 309 at para. 27. The Dangerous Offender provisions “… carefully define a very small

group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative detention.”They are “….designed to segregate a small group of highly dangerous criminals posing threats to the physical or mental well-being oftheir victims”: R. v. Lyons, at paras 44 and 62. The offender’s predicate offence must be a “serious personal injury offence” as defined insection 752 of the Criminal Code.

There is no dispute that the predicate offence, the sexual assault on K.M. on November 2, 2010, fitsthe definition of “serious personal injury offence”. [17] In order for the court to designate Mr. Simpson a Dangerous Offender, the Crown must prove beyond a reasonable doubt thathe is a threat to the life, safety, physical or mental well-being of other persons. This threat must be based on evidence that he has engagedin a pattern of repetitive behaviour by the offender, of which the offence for which has been convicted form a part, showing a failure torestrain his behaviour.

No doubt, the accused’s three sexual assault convictions establish the pattern required in s. 753(1)(a)(i). [18] The Crown must also prove beyond a reasonable doubt that there is a likelihood that the offender will fail to restrain hisbehaviour in the future. There is of course evidence that Mr. Simpson has violently and repeatedly offended from 2005 to 2010 duringwhich time he has accumulated six convictions for assault or sexual assault, including the offences before the court. He has a history ofbreaching court orders and a dismal track record for completing rehabilitative programs. Dr. Klassen diagnosed Mr.

Simpson as having aparaphilic coercive disorder. Yet, as the Crown candidly and fairly concedes, the expert psychiatric evidence falls short of establishingbeyond a reasonable doubt that there is a likelihood of further offending. After thoroughly reviewing the accused’s history, interviewingMr. Simpson and utilizing appropriate actuarial assessment tools, Dr. Klassen was unable to conclude that the accused “presents with alikelihood of sexual or violent re-offense”. He opined that “probabilistic estimates of re-offense likely hover around the 50% mark.” [19] Given Dr. Klassen’s considered assessment of Mr.

Simpson’s risk, I am not satisfied that the Crown has established alikelihood of re-offence within the meaning of the Dangerous Offender provisions. [20] Crown and defence jointly submit that the evidence in this case does establish beyond a reasonable doubt that the accusedshould be found to be a Long Term Offender pursuant to

section 753.1(1) of the Criminal Code. I agree. The evidence does establish tothe requisite degree that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for whichhe was been convicted; (

b) that there is a substantial risk that he will reoffend; and (

c) there is a reasonable possibility of eventual controlof the risk in the community. With respect to the criterion of “eventual control of the risk in the community”, I rely on the followingpassage from Dr. Klassen’s report at page 33 that he also reiterated in testimony at the hearing: “With respect to a Long-Term Offender finding, it is my opinion that this gentleman presents with substantial risk of re-offense.

Thisgentleman’s response to treatment is, at this juncture, difficult to predict; he’s not previously engaged well in treatment or communitysupervision, but lived a very unstructured lifestyle, and was not subject to intensive treatment, in an institution. It’s not clear to me whatlength of fixed sentence this gentleman might receive.

Notwithstanding treatment response and other variables, individuals who engagein serious sexually assaultive behaviours against strangers, in the community, tend to fall to low rates of recidivism by around age 50;age-related decline in propensity for offending suggests, while admittedly based on group data, that this gentleman has a limited timehorizon vis-a-vis serious offending behaviour.

If a sentence could be crafted that, taking into account both a possible fixed sentence, anda Long-Term Supervision Order, would take him to, or close to, age 50, and given that this gentleman would likely spend a significantperiod of time in a community correctional facility on return to the community, and given that this gentleman has not thus far had theopportunity for significant treatment or lifestyle intervention/rehabilitation, then there is psychiatric support for “reasonable possibility ofeventual control of the risk in the community.” [21] I accept the uncontradicted expert opinion of Dr.

Klassen that the Long-Term Offender criteria are met in this case. His opinionis amply supported by the totality of the evidence, including the very disturbing circumstances of the offences, the accused’s criminalhistory, Mr. Simpson’s diagnosis and actuarial test results in relation to risk of the accused re-offending. I am satisfied beyond areasonable doubt that Mr. Simpson should be found to be a Long-Term Offender. Mr.

Simpson is therefore designated a Long-TermOffender. [22] With respect to a determinate sentence in this case, the range suggested by counsel for the Crown and defence is 9-12 yearsless credit for pre-sentence custody. I have reviewed the case law provided by counsel and am satisfied that the proposed range isappropriate. I say that having regard to the foundational principle in the sentencing regime of proportionality: a sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1. The offences here are extremelygrave and Mr.

Simpson’s degree of responsibility is high. As well, an important component of the principle of proportionality which Imust also consider is the principle of totality found in s. 718.2(

c) of the Code: where consecutive sentences are imposed, the combinedsentence should not be unduly long or harsh. The sentence must reflect the objectives of sentencing found in s. 718 but recognize thatwhere the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functionalvalue of these sentencing principles meets the point of diminishing returns: see R. v. C. (J.A.) (1995), (ON CA), 26O.R. (3d) 462 (C.A.); R. v. Johnson, [2012] O.N.C.A. 339. [23] The most important mitigating factor in this case is the accused’s guilty pleas.

He has acknowledged his guilt and has saved thevictims from having to testify in court proceedings. Mr. Simpson now claims some interest in treatment and rehabilitation. He has spent asubstantial period of time in pre-sentence custody. [24] There are a number of aggravating factors including the past criminal record of Mr. Simpson, which includes offences ofviolence. The psychiatric evidence establishes that, at least in part because of cognitive limitations, the accused has very limited insightinto his offending. These were extremely serious stranger sexual assaults. Two of them involved intercourse.

In the commission of thetwo most recent (2008 and 2010) offences, the accused victimized teenage girls, used deceit to attempt to ingratiate himself to thevictims, offered the victims alcohol or drugs, both sexual assaults took place near a school, both involved violent rapes in public areas (apark and a schoolyard), and both involved forced penetration. These offences have had a devastating and lasting impact upon the victims.The sexual assault in 2006 against N.R. involved a “stranger assault”, an offer of drugs to lure the victim into a public place and a violentattack. Mr.

Simpson has not been amenable to treatment or programming in the past and was found guilty of numerous breaches of courtorders. Mr. Simpson has been diagnosed as having a paraphilic coercive disorder and the psychiatric evidence is that he is a likelymoderate to moderately high risk of violent sexual re-offence.

[ 25 ] Taking into account the mitigating and aggravating factors as well as the principal sentencing objectives of deterrence, denunciation and protection of the public, I am satisfied that the sentence should be in the upper end of the proposed range. [ 26 ] Mr. Simpson is sentenced to a global sentence of 11 years. He is sentenced to two years for the sexual assault on N.R. He is sentenced to 4 ½ years consecutive for the sexual assault of L.B. and 4 ½ years consecutive for the sexual assault on K.M. Counsel agree that Mr.

Simpson should receive 1:5 to 1 credit for his pre-sentence custody which amounts to four years and two months. The custodial sentence to be served is six years and ten months.

The sentences will be structured as follows: Sexual Assault on N.R. – Ten months Sexual Assault on L.B. – Three years consecutive Sexual Assault on K.M. – Three years consecutive Total custodial sentence after credit for pre-sentence custody is six years and 10 months. [ 27 ] The court also makes a Long-Term Supervision Order for 10 years to run consecutively to the completion of the determinate sentence on the following terms proposed by Crown and defence counsel: (

a) On release, travel directly to the offender’s place of residence, as set out in the release certificate respecting the offender, and report to the offender’s parole supervisor immediately and thereafter as instructed by the parole supervisor; (

b) Remain at all times in Canada within the territorial boundaries fixed by the parole supervisor; (

c) Obey the law and keep the peace; (

d) Inform the parole supervisor immediately on arrest or on being questioned by the police; (

e) At all times carry the release certificate and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor; (

f) Report to the police if and when instructed by the parole supervisor; (

g) Advise the parole supervisor of the offender’s address of residence on release and thereafter report immediately: (

i) any change in the offender’s address of residence; (ii) any change in the offender’s normal occupation, including employment, vocational or educational training and volunteer work; (iii) any change in the domestic or financial situation of the offender and, on request of the parole supervisor, any change that the offender has knowledge of in the family situation of the offender, and (iv) any change that may reasonably be expected to affect the offender’s ability to comply with the conditions of parole or statutory release; (

h) Not own, possess or have the control of any weapon, as defined in

section 2 of the Criminal Code , except as authorized by the parole supervisor, and not to apply for nor obtain any firearms acquisition certificate or firearms licence; and (

i) Have no contact, directly or indirectly, with K.M., L.B., N.R., or any member of their immediate family; (

j) Have no contact, communication or association with anyone under the age of 18 years unless supervised by an adult third party approved by the CSC; (

k) Not to be within 500 metres of anywhere you know K.M., L.B. or N.R. to live, work, go to school or happen to be; (

l) Not to attend the H[…] Shelter at D[…] Avenue and D[…] Road in the City of Toronto; (

m) Not to attend the George Webster Public School at C[…] Avenue in the City of Toronto; (

n) Not attend at the Knob Hill Park at 625 Brimley Road in the City of Toronto; (

o) Not to possess, purchase or consume alcohol or non-medically prescribed drugs as defined under the CDSA ; (

p) Take any necessary counselling or programming as directed by CSC and sign nay necessary consents or releases to monitor your compliance with said counselling or programming. There will be a DNA order pursuant to s. 487.051 of the Criminal Code . There will be a weapons prohibition order pursuant to s. 109 for life. There will be a s. 161 (1)(

a) order prohibiting the accused from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably expected to be present, or a daycare centre, school ground, playground or community centre. Finally there will be a SOIRA order pursuant to s. 490.012 for life. Released: August 22, 2013 Justice T. Lipson