)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 589

CITATION : R. v. Gibson, 2013 ONSC 589 COURT FILE NO.: 10-100000700-0000 DATE: 20130201 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – PAUL GIBSON )) )) )) )) ) ) Karen Simone , for the Crown/Applicant Linda Choi , for the Accused/Respondent HEARD: January 7-11, 2013 M.A. CODE j. REASONS FOR JUDGMENT A. INTRODUCTION [ 1 ] These are my reasons for judgment on a dangerous offender Application brought by the Crown pursuant to s. 753 of the Criminal Code .

I convicted the accused Paul Gibson (hereinafter, Gibson) of sexual assault and sexual assault causing bodily harm on February 13, 2012. My reasons for conviction can be found at R. v. Gibson , 2012 ONSC 900 . [ 2 ] It took almost eleven months from the date of conviction to the date when the dangerous offender Application proceeded, on January 7, 2013. Gibson remained in custody throughout this period at the Don Jail. This kind of extraordinary delay, between conviction and sentence, is unacceptable.

It is harmful to Gibson and it is harmful to confidence in the administration of justice as it leaves the impression with the public that the justice system is slow and inefficient. Responsibility for the delays initially rests with the Ministry of the Attorney-General, which takes too long in deciding whether to proceed, and it then rests with forensic psychiatrists, who take too long to

schedule and complete their assessments. Finally, it rests with the parties and with Legal Aid Ontario who fail to make realistic compromises and agreements about psychiatric assessments and about the scope of the hearing, which could have eliminated certain delays. The Criminal Code needs to be amended to require that these hearings be conducted in a much shorter time frame. The current delays created or permitted by ss. 752.1 and 754 are far too lengthy and result in hearings like this one. B.

THE EVIDENCE HEARD AT TRIAL THAT IS RELEVANT TO SENTENCE [ 3 ] The facts relating to the offences committed by Gibson are set out at length in my February 13, 2012 reasons and will not be repeated. In short, Gibson befriended the C. family and became a frequent companion and babysitter for two young boys in the family. The two boys, R. K. and A. C., were cousins and they were age seven and four at the relevant time. Gibson would take them on outings, often with their grandmother but sometimes alone.

He engaged in what must have been a carefully planned course of befriending the unsophisticated grandmother, in order to gain access to the two boys, and he then proceeded to groom the boys by giving them small gifts and treats and taking them swimming, bowling, to movies, and to amusement parks. At some point, he won the trust of the boys’ grandmother and their mothers, and he would be left alone with one or both of the boys. He engaged in a course of sexual assault that included fondling, fellatio, and anal intercourse.

The exact number of these incidents cannot be determined, given the very young age of the boys, but I am satisfied that there were many repetitions, especially in relation to R. K. I am also satisfied that R. K. delayed reporting the sexual abuse, in part, because Gibson had threatened him. [ 4 ] There was also some evidence heard at the trial about Gibson’s antecedents because he, his mother, and his long time employer all testified.

Once again, I will not repeat this evidence but it is apparent that Gibson is close to his mother and his employer, who he regards as a father figure, and that he has been capable of working diligently and responsibly at various points in his life. [ 5 ] The fact of his prior Youth Court record came out at trial and was then dealt with in greater detail at the dangerous offender hearing. Gibson was convicted on October 31, 1991 of carrying a concealed weapon, apparently a pellet gun. He was born on June 25, 1976, so he would have been fifteen years old at the time of this first offence.

He was placed on nine months probation. On November

25, 1993 he was convicted of four separate offences, namely, abducting a child under the age of fourteen and three counts of invitation to sexual touching involving young children. He would have been seventeen years old at the time of these convictions and he was sentenced to nine months in an open custody facility and fifteen months probation. The custodial sentence ended on August 24, 1994, when Gibson was eighteen years old, and the period of probation would have ended on November 24, 1995, when he was nineteen. [ 6 ] The predicate offences involving R. K. and A. C. took place in the summer and fall of 2009.

At that time, Gibson would have been thirty-three years old. He has been in custody since his arrest on November 28, 2009. He is now thirty-six years old. There is no record of any criminal convictions or of any criminal charges in the sixteen year period between November 1993 and November 2009. In other words, the offences in the present case are his first adult criminal convictions. C. THE EVIDENCE CALLED AT THE DANGEROUS OFFENDER HEARING [ 7 ] The Crown and the police searched diligently for any records relating to Gibson’s early correctional history, in the 1990- 1994 time period.

They succeeded in finding a fair number of these records. I admitted them in evidence on the dangerous offender Application. The various records are described generally in my October 2, 2012 ruling, concerning admissibility, which can be found at R. v. Gibson , 2012 ONSC 5527 . [ 8 ] In addition to tendering these records, the Crown had Gibson assessed by Dr. Pallandi, a forensic psychiatrist at the Centre for Addiction and Mental Health. Dr. Pallandi prepared a report and testified at the hearing.

His diagnosis was that Gibson is a pedophile and his opinion was that Gibson’s “risk for sexual recidivism falls in the high range”. The Crown also called Dr. Sowa, an experienced psychiatrist who worked with Gibson in the 1993-1994 time period, while Gibson was serving his nine month open custody sentence. There are many contemporaneous psychiatric notes from Dr. Sowa, during this period. Gibson was too young for a formal diagnosis of pedophilia, at the time when Dr. Sowa was seeing him. But today, Dr. Sowa would agree that Gibson is a pedophile. At the end of the nine month open custody sentence, in 1994, Dr.

Sowa was concerned that Gibson would re-offend. He felt that little progress had been made during the time that he worked with Gibson. [ 9 ] The Crown also called a federal parole officer, Sheldon Schwartz, who works with high risk offenders on various forms of conditional release. He testified about the degree of supervision that can be provided by federal correctional services, whether the offender is on parole, on statutory release, or under a long term offender supervision order. [ 10 ] Finally, the Crown tendered a Victim Impact Statement, prepared by N.C. on behalf of the two boys and their mothers.

It is a powerful and moving account of the long-term harm that has been done to R. K. and A. C. and to their families. It states the following: “Our lives have been changed and will never be the same no matter how much we try to heal and forget … What I can tell you … is the seriousness and traumatic impact this crime has had and is still occurring within both A. C. and R. K.’s life, S. C. and I as mothers, and within our family. Once both happy, relaxed, calm, laughing, polite, outgoing, playful children no longer exist. Both of our boys have drastically changed. A. C. and R.

K. are not the same boys they used to be. Their behaviour has changed. They are acting out in negative ways through their actions and words. They lack confidence, want to fight and argue with adults. Many times they were overheard saying, ‘They do not care anymore’, ‘They want to die’. They are rebelling, not listening, talking back. They both feel guilt, like it was their fault what happened to them. They feel shame, frustration, anger, fear, distress, confusion. A. C. and R. K. are beyond hurt … My child A. C., appetite had decreased, nightmares are endless. He also now requires overnight pull-ups.

He began bed wetting every night since the sexual abuse, he fears going to the bathroom in the night. A. C. also on many occasions has displayed very inappropriate behaviour. He has [gone] up to complete strangers and said, ‘suck my dick’, also ‘can I suck your dick’, ‘I will suck you, I know how.’ …A. C. now lacks confidence. He feels and believes everything is his fault, that nobody likes him. His self-esteem, confidence and trust has been shattered. He lets and will allow kids in and out of school to bully him, hurt and even hit him. He is confused, he really feels and thinks that is o.k. … R.

K. is also experiencing … behavioural changes. He also lacks confidence and is seriously acting out in school, in public and at home. He is older, eleven now, and is much more aggressive, dominate, over-powering, talks back, acts out, and swears. His school grades have decreased, lacks interest in activities he used to enjoy. He must always have a night light on … while sleeping whereas before he was sexually abused he did not require a night light. He hates the dark now for what may be lurking in it he says. He also suffers from nightmares, wakes up in cold sweats and memory flashbacks.

He also began over-eating as a way to cope with his anxiety. … Truly, everyone knows that you will never forget, you will always remember. To deny that fact would be a lie:” [ 11 ] The only defence evidence called on the dangerous offender hearing was from Bill Radigan. He is an ordained Deacon and volunteer chaplain at the Don Jail where he met Gibson some two years ago. He has visited Gibson regularly during this period. Gibson is taking a Bible study course at the jail and is trying to re-connect with the Christian faith.

They talk and pray together during their meetings and Deacon Radigan has the impression that Gibson is sincere in his interest in religion. Deacon Radigan also works with prisoners, after their release into the community at the end of their sentences, if they wish to be involved with a faith-based group. [ 12 ] I will refer to the above evidence in more detail, as necessary, when applying the law to the facts in the next

section of these reasons.

D. ANALYSIS (

i) The statutory framework [13] The statutory regime for dangerous offender and now, long term offender applications, has changed and evolved over theyears. The present scheme is complex but, as I understand it, it contains the following basic elements or requirements: • there are two separate routes to a dangerous offender designation, through either s. 753(1)(

a) or s. 753 (1)(b); • the s. 753(1)(

a) route applies to a broad range of predicate offences, defined in s. 752(a), and it requires a showing that theoffender “constitutes a threat to the life, safety or physical or mental wellbeing of other persons”. One way of establishing this “threat”,that could apply in the case at bar, is by proof of “a pattern of repetitive behaviour … showing a failure to restrain his … behaviour and alikelihood of … inflicting severe psychological damage on other persons, through failure in the future to restrain his … behaviour”. Theother two means of establishing the “threat”, also set out in s. 753(1)(a), are less applicable to the case at bar; • the s. 753(1)(

b) route is designed specifically for sex offenders because it only applies to predicate offences defined in s.752(b), which are all sexual assault offences. It requires proof that the offender, “by his … conduct in any sexual matter … has shown afailure to control his … sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in thefuture to control his … sexual impulses”. [14] Although the two statutory routes summarized above are distinct, as a practical matter they “overlap” to a considerabledegree. See: R. v.

H. (M.B.) (2004), (ON CA), 186 C.C.C. (3d) 62 at paras. 12-14 (Ont. C.A.). For example, sexualassault is a sufficient predicate offence under both routes. In addition, the “threat” under the first route is established by “a pattern ofrepetitive behaviour”. Although this statutory criterion is not specifically mentioned under the second route, it has been held that the s.753(1)(

b) test of future dangerousness generally turns on “past behaviour and patterns of conduct”. See: R. v. Currie (1997), (SCC), 115 C.C.C. (3d) 205 at paras. 25-6 and 32 (S.C.C.). Finally, the critical component under both routes is proof of afuture “likelihood” of re-offending in a certain way. The Crown relies on both of these routes in the case at bar. (ii) The present conduct requirement [15] Gibson has obviously committed the necessary predicate offence under both statutory routes as he has been convicted ofsexual assault.

Furthermore, there is a common sense inference that, when he committed the numerous sexual assaults on R.K. and A.C.,Gibson showed “a failure to restrain his … behaviour” under the s. 753(1)(

a) route, as well as “a failure to control his … sexualimpulses” under the s. 753(1)(

b) route. See: R. v. Sullivan (1987), (ON CA), 37 C.C.C. (3d) 143 at paras. 21 and 31-3 (Ont. C.A.). Ms. Choi submits that the requisite “pattern” has not been proved, because these predicate offences are Gibson’s firstadult convictions and there is a sixteen year “gap” since his 1993 Youth Court convictions. However, the present offences werestrikingly similar. Furthermore, they involved two separate victims and ongoing periods of gaining access and similar grooming,followed by an ongoing series of similar assaults on both victims.

The course of conduct revealed by these adult offences alone, leavingaside the 1993 Youth Court convictions for now, shows a present existing “pattern” of conduct in the above two statutory senses. [16] The case law supports this view. In R. v. Langevin (1984), (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.), theaccused committed acts of sexual violence against two victims, on single days, some two years apart.

It was held that the two offenceswere “remarkably similar” and that they “were properly found to establish a pattern of repetitive behavior”, pursuant to what is now s.753(1)(a), given that “this element is not based solely on the number of offences”. The absence of a prior relevant adult criminal recordis also not a bar to this initial part of the statutory test. In R. v. Grayer (2007), 2007 ONCA 13 , 215 C.C.C. (3d) 505 (Ont.C.A.), the accused had no relevant prior criminal record.

The requisite “pattern” was established solely on the basis of the four predicateoffences, involving four attacks on four separate victims in 1983, 1985, 1986, and 1998. These four offences were all prosecuted at onetrial that concluded in 2003 when the accused was forty-six years old. Similarly, in R. v. Allen (2007), 2007 ONCA 421 , 221C.C.C. (3d) 261 at para. 6 (Ont. C.A.), it was said that the forty-five year old accused had only “a minor and unrelated adult criminalrecord”, which was not set out in the judgment.

The requisite “pattern” was established solely on the basis of the predicate offences,committed in 1983 and 1999, involving a number of young boys. There was very little sexual touching in any of these predicate offencesand nothing like the highly intrusive assaults on R. K. and A.

C. in the case at bar. [17] In light of the above authorities, and given the common sense inferences that I have drawn from Gibson’s conduct in relationto the predicate offences, set out above at para. 15, I am satisfied that the statutory requirements concerning present conduct have beenproved beyond reasonable doubt. (iii) The future conduct requirement [18] The one difficult issue, in relation to the s. 753(1)(

a) and (

b) statutory tests, is whether the requisite “likelihood” of re-offending in the future has been established. Predicting future conduct is notoriously difficult and the exact meaning of the s. 753“likelihood” test is subtle. The ordinary dictionary meaning of the word “likelihood”, as well as its normal legal usage, is “probability”,that is, something more than mere “possibility”. See: The New Shorter Oxford English Dictionary, Oxford University Press 1993, Vol. 1, p. 1588; Black’s Law Dictionary, 9th Ed. 2009, at p. 1012; D.A.

Dukelow, Dictionary of Canadian Law, 3rd Ed. 2004, at p. 723; R. v.H. (J.T.) (2002), 2002 NSCA 138 , 170 C.C.C. (3d) 405 at paras. 68-75 and 101-4 (N.S.C.A.). When applying this meaning tothe “likelihood” test found in s. 753, the courts have stressed that it refers to probable “risk” or “potential for harm”, as a present fact,rather than to proof of a future event which would be an impossibility. The best discussion of this difficult subject is found in thejudgment of LaForest J., speaking for the majority in R. v.

Lyons (1987), (SCC), 37 C.C.C. (3d) 1 at paras. 92-95 and99-100 (S.C.C.), where he stated: Paragraphs (

a) and (

b) of s. 688 [now s. 753] both require proof that the offender represents a threat of some sort to society. It is nowhere

required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not thecertainty, of harm. The appellant asserts that a “likelihood” is ipso facto not susceptible of proof beyond a reasonable doubt. He cites in support thefollowing statement of Isabel Grant, in her

article “Dangerous Offenders” (1985), 9 Dal. L.J. 347, at p. 360: How does one prove beyond a reasonable doubt that at some time in some setting, an individual is likely to endanger some person. Surely if we add “beyond a reasonable doubt” to a “future likelihood” the sum total can be no greater than a balance of probabilities; astandard we would never accept in a criminal trial. However, as Holmes has reminded us, the life of the law has not been logic: it has been experience.

The criminal law must operate in aworld governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in afuture context is a likelihood of certain events occurring. To doubt this conclusion is, in actuality, to doubt the validity of the legislativeobjectives embodied in

Part XXI, for to require certainty in such matters would be tantamount to rendering the entire process ineffective. Moreover, I am not convinced, even as a matter of logic, that the appellant’s submission is sound. It seems to me that a “likelihood” ofspecified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means ofproving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that thisrequire the court to assert an ability to predict the future.

I do not find it illogical for a court to assert that it is satisfied beyond areasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only anapparent paradox is aptly captured by Morden J. in R. v. Knight (1975), (ON SC), 27 C.C.C. (2d) 343 (Ont.

H.C.) atp. 356: I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself anobligation to find it proven beyond a reasonable doubt that certain events will happen in the future – this, in the nature of things would beimpossible in practically every case – but I do refer to the quality and strength of the evidence of past and present facts together with theexpert opinion thereon, as an existing basis for finding present likelihood of future conduct.

Having said the foregoing, it seems to me that when the appellant asserts that proof of a likelihood beyond a reasonable doubt stillamounts merely to proof of a likelihood, it becomes apparent that what he is challenging is not the standard of proof but the fact thatcertain persons found to be “dangerous” will in fact not have been dangerous.

This is the problem of “false positives”, which I willaddress below. … Finally, the unreliability of psychiatric evidence also raises the problem of “false positives” (a statistical term representing the erroneousoverprediction of future violence) … … Floud and Young, supra, reject the notion that in enacting dangerous offender legislation Parliament unfairly sacrifices innocentpersons in favour of the public good (at pp. 48-49): This argument is misconceived. Errors of prediction do not represent determinable individuals.

It is not that we have difficulty inidentifying the subjects of predicted error with the methods available to us; it is that they are in principle indeterminable. There are nohidden individuals identifiable in principle, but not in practice, who certainly would or would not reoffend. In this sense there are noinnocent or guilty subjects of predictive judgment.

The question is not ‘how many innocent persons are to sacrifice their liberty for the extra protection that special sentences for dangerousoffenders will provide?’ but ‘what is the moral choice between the alternative risks: the risk of harm to potential victims or the risk ofunnecessarily detaining offenders judged to be dangerous?’ The essential nature of the problem of preventing wilful harm is misrepresented by talk of balancing individual and social costs. Theproblem is to make a just redistribution of risk in circumstances that do not permit of its being reduced.

There is a risk of harm toinnocent persons at the hands of an offender who is judged likely to inflict it intentionally or recklessly – in any case culpably – indefiance or disregard of the usual constraints. His being in the wrong by virtue of the risk he represents is what entitles us to considerimposing on him the risk of unnecessary measures to save the risk of harm to innocent victims. I agree with this reasoning. Accordingly the appellant’s submissions on this point fail. [Emphasis added]. Also see: R. v. M. (R.) (2005), 68 W.C.B. (2d) 78 at para. 68 (Ont.

S.C.J.), aff’d (2007) 2007 ONCA 872 , 228 C.C.C. (3d) 148(Ont. C.A.). [19] In applying the future conduct “likelihood” test to the present case, there are two preliminary issues that must be addressedrelating to the weight that should be given to certain evidence. First, Dr. Pallandi’s opinion evidence concerning Gibson’s risk ofrecidivism suffers from a number of weaknesses. Second, the historical records and related evidence concerning Gibson’s conduct in the1990-1994 time period also must be approached with caution for a number of reasons.

I will address these two issues in the next twosections of these reasons. (iv) Dr. Pallandi’s evidence [20] Dealing first with Dr. Pallandi’s evidence, I have no difficulty accepting his diagnosis that Gibson is a pedophile. Dr. Sowaconfirmed this part of the expert evidence and it was not seriously disputed by Ms. Choi. Indeed, it is a common sense inference fromGibson’s conduct, in repeatedly committing the predicate offences, that he has a sexual preference for young children.

Furthermore, it isnow an accepted fact that pedophilia is a life-long condition for which there is no cure, although the risks associated with pedophilia canbe controlled to some extent by behavioural therapy and drug therapy. Finally, it is also an accepted fact that “denial” of the predicate

offences, and of the underlying sexual preference for children, is a serious obstacle to treatment and is an additional risk factor. None ofDr. Pallandi’s evidence on these points is controversial and I accept it. See: R. v. H. (M.B.), supra; R. v. B. (D.V.) (2010), 2010 ONCA291 , 254 C.C.C. (3d) 221 (Ont. C.A.); R. v. B. (R.) (2011), 2011 ONCA 328 , 280 O.A.C. 329 (Ont. C.A.). [21] However, Dr. Pallandi’s ultimate opinion, that Gibson is a high risk to re-offend, does not rest exclusively or predominantlyon the above accepted propositions.

His report and his testimony are replete with references to unproved offences allegedly committedby Gibson. For example, he referred to Gibson having been “convicted for a group of offences against five child victims, both femalesand males” in 1993. This is an erroneous reading of the 1993 records which involved four male victims. More significantly, he relied onan allegation that Gibson had sexually assaulted a five year old girl in 1990, leading to involvement by the Children’s Aid Society, at atime when Gibson was fourteen years old. When it was pointed out to Dr.

Pallandi that these allegations led to criminal charges and to anacquittal, at the end of a trial, he still insisted in relying on this unproved offence. He testified, in this regard, that the Children’s AidSociety would not get involved unless there was “good reason”. In his report, and in his testimony, he repeatedly referred to Gibsonhaving had numerous other victims, beyond the four 1993 offences that have been proved.

He testified that he had to rely on thesenumerous unproved allegations because they were referred to in various clinical records. [22] I would have thought that the above approach to psychiatric opinion evidence, on dangerous offender applications, wouldhave ended over thirty-five years ago when Morden J., as he then was, delivered his seminal judgment in R. v. Knight (1975), (ON SC), 27 C.C.C. (2d) 343 (Ont. H.C.J.).

In that case, the Crown had provided the two psychiatrists who testified at thedangerous offender hearing with “certain documents from police files” relating to “three alleged incidents” where the accused had notbeen convicted and where the complainants had not testified. Morden J. stated the following in relation to the psychiatrists’ reliance onthese unproved allegations (supra at pp. 354-5): There can be no doubt that I can pay no regard to that material, that is, the police data, on the short ground that it is not evidence ofanything except what the psychiatrists looked at.

Further, I must hold that in so far as the psychiatrists gave any effect to it, the scopeand value of their opinions is correspondingly diminished. If I were not to attribute this debilitating result to its use, I would in effect bedelegating to the psychiatrists my responsibility for finding facts of a rather crucial nature. … I do not think that it is within the recognized scope of a psychiatrist’s professional activities, skill and training, to evaluate the type ofdata in issue here and to make a finding as to what it adds up to in the simple realm of historical fact.

Even if it were, I do not think Icould rely on any consequent opinion based on inferences drawn therefrom, without these facts being independently proven before me. [Emphasis added]. Also see: R. v. Sullivan, supra at paras. 7 and 31; R. v. B. (I. J.), 2010 ONCA 387. [23] Some ten years after Knight was decided, in R. v. Lewis (1984), (ON CA), 12 C.C.C. (3d) 353 (Ont. C.A.),the Court held that the Crown could rely on “incidents which did not result in convictions”, on a dangerous offender application, in order“to establish the pattern of behaviour referred to in s. 688” [now s. 753].

However, the Court added the important caveat that evidence ofthese incidents “must be introduced in accordance with the regular rules of evidence”. In that case, the complainants testified about theuncharged incidents and the accused “was given a full right of cross-examination”. Also see: R. v. Pike (2010), 2010 BCCA 401, 260 C.C.C. (3d) 68 (B.C.C.A.). The law relating to expert opinion evidence, and an expert’s reliance on unproved facts, hasnot changed since R. v. Knight, supra. Morden J. relied on cases like R. v. Wilband, (SCC), [1967] 2 C.C.C. 6 (S.C.C.)and R. v.

Turner, (BC CA), [1975] 1 All E.R. 70 (C.A.) for the proposition that the weight to be given to an expert’sopinion varies, depending on the extent to which the expert relies on unproved hearsay. In its modern jurisprudence, the Supreme Courtof Canada has continued to take this approach. See: R. v. Abbey (1982), (SCC), 68 C.C.C. (2d) 394 (S.C.C.); R. v.Lavallee (1990), (SCC), 55 C.C.C. (3d) 97 (S.C.C.); R. v. Giesbrecht (1994), (SCC), 91 C.C.C. (3d)230 (S.C.C.). [24] In light of the above authorities, Dr.

Pallandi should have been instructed to base his ultimate opinion mainly or substantiallyon facts proved on the dangerous offender hearing. The Crown has consistently conceded that past alleged offences, other than the fourin 1993 that resulted in convictions, cannot be proved against Gibson. Dr. Pallandi, nevertheless, appeared to place significant relianceon numerous unproved allegations. He is entitled to consider these matters, according to his best clinical judgment, but the more that herelies on them, when forming his ultimate opinion, less weight will necessarily be given to that opinion.

During his testimony on thehearing, efforts were made to disentangle his opinion from the unproved hearsay on which he had already relied. I was never satisfiedthat these efforts were particularly successful. [25] A further weakness in Dr. Pallandi’s report, and in his testimony, is that he appeared to give little or no weight to the sixteenyear “gap” in Gibson’s history of offending behaviour. In this regard, Dr. Pallandi testified that sex offenders are only prosecuted for afraction of their offences.

He offered the opinion that there was a “plausible explanation” for the sixteen year “gap” in Gibson’s record,namely, that he had re-offended but had “not been caught”. At times in his testimony, Dr. Pallandi referred to this “plausibleexplanation” as a mere “possibility” but he would not concede that it was speculation. He agreed that it was also “possible” that Gibsonwas deterred, by being caught and punished in 1993, or that he had learned to exercise internal self-control over his pedophilic urges,perhaps as a result of the treatment that he received from 1993 to 1994.

However, his preferred opinion was that sex offenders are craftyand secretive and are known to recidivate and not get caught. The sixteen year “gap” in Gibson’s record is an important issue in thiscase and I have little or no confidence that Dr. Pallandi has evaluated it in a fair-minded or rigourous manner. [26] Finally, Dr. Pallandi conceded, when pressed, that there were certain positive or less negative aspects in Gibson’sbackground.

In particular, Gibson has no major mental illness, he has no history of drug or alcohol abuse, he has a reasonable workhistory, he is close to his mother and to his employer, he is not a psychopath, he did participate in treatment programs in 1993-1994, hecompleted his fifteen months probation in 1994-1995 without apparently re-offending, he is reasonably intelligent, and he claimed tohave had an adult heterosexual relationship of some duration. Dr. Pallandi acknowledged these features of the case but only in abegrudging and defensive manner.

There are many negatives in Gibson’s background, and they may well outweigh the positives, but I

had the impression that Dr. Pallandi never gave fair consideration to the positive features. For example, he never noted the instanceswhen Gibson appeared to make some progress in his sessions with Dr. Sowa in 1994. He also chose not to phone Gibson’s mother,Patricia Lahey, or Gibson’s long time employer and father figure, Robert Westwood, to try to confirm some of the more positivebackground information. Gibson refused to consent to contact with “collateral sources of information” but Dr.

Pallandi did not requireGibson’s consent in order to phone either of these two sources who know him well and who testified at trial. Gibson has poor judgmentand he has no right to unilaterally deprive Dr. Pallandi, and the Court, of important background information when none of it is protectedby any known principle of confidentiality. Having decided not to phone these sources, Dr. Pallandi then proceeded to discount certainpositive features in Gibson’s background, such as his claim to a long term adult heterosexual relationship, on the basis that it wasuncorroborated.

This approach hardly seems fair. [27] For all these reasons, I was not impressed with the objectivity or reliability of certain aspects of Dr. Pallandi’s opinion. Having said that, there are many aspects to this case that do not require the assistance of psychiatric opinion. As Ewaschuk J. put it in R.v. Moore (1984), (ON SC), 10 C.C.C. (3d) 306 at 310-311 (Ont. H.C.J.), in a passage quoted with approval by theSupreme Court of Canada in R. v.

Lyons, supra: I accept the submission that the evidence of a psychiatrist, psychologist or criminologist is at times highly speculative and in certaininstances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court … must be sosatisfied and not the expert witness. Also see: R. v. M. (R.), supra. [28] I have already noted the uncontroversial features of this case that Dr.

Pallandi relied on, namely, the fact that Gibson is apedophile, the fact that pedophilia is a life-long condition with no cure, the fact that treatment options are limited, and the fact thatGibson is “in denial” which significantly impedes treatment in his case and exacerbates the risks. In addition, Dr. Pallandi was at hismost persuasive when he relied on the known facts concerning the predicate offences.

For example, his report stated the following (at p.24): His most recent offences exemplify a pattern of offending wherein he ingratiates himself, grooms the victims, and manipulates anddistorts the relationship that he has with the victims (including considering himself a father to one of the victims). For all of thesereasons, as articulated above, I believe that Mr. Gibson’s risk for sexual recidivism falls in the high range. [29] I agree with this analysis of the predicate offences. Dr.

Pallandi added another important point, when he testified thatGibson’s “grooming” of the two children was pre-meditated and was not impulsive. I agree with this observation and what it indicates tome is that, even if Gibson had learned to control his pedophilic urges and had not acted out over the sixteen previous years, he made adeliberate decision in 2009 that he was going to take the risk of returning to old ways that he had learned when he was young. In thisregard, his mother’s testimony at trial was also significant.

She became concerned, when Gibson told her how close he had become tothe C. family and that he had come to regard R. K. as his “son”. She warned him to “back off”. He obviously did not listen to hismother and persisted in his very deliberate pattern of gaining access, grooming, and offending. Dr. Pallandi testified that stressors in apedophile’s life can contribute to the timing of their re-offending.

There was evidence at trial, from Gibson’s mother, from Gibsonhimself, and in Gibson’s lengthy video-taped statement to the police, that the unexpected death of his father in early 2009 had adevastating impact on him, that he was lonely, and that the children filled an emotional void in his life. Dr.

Pallandi testified, in thisregard, that “when things go badly with a pedophile, they go badly quickly”. [30] Gibson’s very deliberate risk-taking with his pedophilic urges, when things were going badly for him in 2009, and in spite ofhis mother’s warnings, indicate to me that at certain times he cannot “control his … sexual impulses”, as that expression is used in s.753(1)(b). Needless to say, there will be more stressors in his life in the future. (

v) The historical records and the evidence concerning Gibson’s conduct in the 1990 -1994 period [31] As noted above, there are also questions about the weight that should be given to Gibson’s historic correctional records. Thefirst reason for approaching this evidence from the 1990-1994 period with caution is simply that Gibson was very young at that time. Hewas fourteen years old in 1990, when the CAS became involved with his family, and he was eighteen years old in 1994 when hecompleted the nine month open custody sentence. These are the only records that we have relating to Gibson.

The fact that he engagedin relatively serious sexual misconduct at this age, and the fact that he was arrogant and insecure and rebellious, when dealing with thecorrectional authorities who were trying to help him, should not be given undue weight. He was a young man from a dysfunctionalfamily and he was struggling. In addition, he had been sexually abused himself, apparently by two separate perpetrators. In all thecircumstances, his difficulties are hardly surprising. [32] The second reason for caution is that some of the records are not particularly reliable. In particular, Ms.

Simone has fairlyconceded that the Crown cannot reliably establish all the facts of the 1993 offences. Gibson pleaded guilty to these offences but there isno transcript of the guilty plea, none of the victims have testified, and the only available documents are four police synopses. It is wellknown that a police synopsis is prepared at the very early stages of a criminal prosecution and that a fuller appreciation of the facts oftenemerges later. Furthermore, the facts agreed to or proved on a guilty plea often differ from the police synopsis.

For these reasons, thefacts set out in the four 1993 synopses may not be completely reliable. See: R. v. L. (J.K.) (2012), 2012 ONCA 245 , 290O.A.C. 207 at paras. 88-94 (Ont. C.A.); R. v. Ziegler, 2012 BCCA 353 at paras 61-2 and 76. [33] The facts relating to the four offences, described in the police synopses, are said to be as follows: • in 1992, at a time when Gibson would have been fifteen years old or would have just turned sixteen, he had analintercourse with a thirteen year old boy (N.S.). Gibson and N.S. had known each other for some time.

Gibson admitted the facts of thisoffence, when testifying at his bail hearing in the present case in January 2010, so this synopsis appears to be generally reliable. However, it should be noted that sexual acts between a fifteen year old boy and a thirteen year old boy does not meet the accepteddefinition of pedophilia, which requires a five year difference in age;

• in 1993, at a time when Gibson was sixteen, he and a twenty-two year old co-accused named Peter Whitmore enticed a young boy into a room where there was a mattress on the floor. The age of the young boy (A. B.) is not given in the synopsis. The adult co-accused Whitmore began to undo A. B.’s zipper but A. B. became scared and the incident ended. Gibson testified, at the bail hearing, that it was this adult co-accused who sexually abused him, at age thirteen, and then they became friends at age fifteen or sixteen.

There are also reports, in the correctional records, of Gibson having been sexually abused at age eight by an older cousin. Both of the periods of sexual abuse, by the older cousin at age eight and by Whitmore at age thirteen, are said to have extended over two year periods; • in 1993, when Gibson was sixteen years old, he and the same twenty-two year old co-accused, Whitmore, tried to persuade another young boy (G. H.) to come to a room where they would perform various sexual acts. G.

H. , who was eleven years old at the time, refused and the incident ended; • the above three offences all resulted in convictions for invitation to sexual touching, contrary to s. 152 of the Criminal Code . The fourth and last incident resulted in a conviction for abduction of a child under the age of fourteen. At a time when Gibson was sixteen years old and the same adult co-accused, Whitmore, was twenty-two years old, they enticed a young boy into a car at a swimming pool and drove him to the building where Gibson lived. The young boy (B.

K.), who was eleven years old at the time, was taken to a room with a mattress. Whitmore had oral sex with B. K. while Gibson watched. When the above synopsis was put to Gibson at the bail hearing in the present case, he admitted being in the car when Whitmore arrived with B. K., he agreed that they drove to his apartment building, and he agreed that the three of them entered the room with the mattress.

However, he insisted that he left the room before any sexual acts took place. [ 34 ] I am satisfied that the police synopses are reliable as to the dates of the offences, the ages of the various parties, and the general nature of the offences. Gibson was represented by experienced counsel at the time and he pleaded guilty to the four offences.

It is apparent, from Gibson’s own admissions and from the offences that he pleaded guilty to, that at age sixteen he was assisting a twenty- two year old, who had abused him, to commit sex acts with eleven year olds and that he had some degree of interest in participating. [ 35 ] A final reason for caution, as to the weight of the historical records, is that the excerpts relied on most heavily by the Crown, and by Dr. Pallandi, are based on Gibson’s self-reporting.

In these excerpts from the 1993-1994 therapeutic records, he reported on the number of young victims he had sexually abused and on his modus operandi . Dr. Sowa’s thorough contemporaneous psychiatric notes, from November 1993 to August 1994, are replete with references to Gibson being prone to “overstatement” and “bravado”. In particular, Dr. Sowa’s February 24, 1994 note states the following: His need to overstate and to control is constant and well established. Paul is bright and highly manipulative … pleased to be out of closet, no more secrets and now can get help.

Disclosures are bravado and boastful and explained on basis of he being a victim … himself and excused on this account. Disclosures are in context of story telling and overstated, premeditated, stalking, and by design. Degree of displacement and disowning and detachment from true ownership, disclosing but not disclosing, aggrandizement and exaggeration … [ 36 ] Dr. Sowa confirmed, in his testimony, that Gibson was grandiose and boastful. He had very good verbal skills and enjoyed telling stories about his prowess at enticing potential victims.

It was in this context that he spoke of having had thirty-one victims, without ever going into any detail as to what actually happened during these incidents. It was because Gibson was so skilled at talking and boasting, without really engaging, that Dr. Sowa concluded that little progress had been made by the end of the nine month open custody sentence. He felt that Gibson was not seriously addressing his problems. [ 37 ] Given the above context for Gibson’s disclosures to his therapists in 1993-1994, they are simply not very useful.

The true number of victims is uncertain, given Gibson’s exaggerated and boastful style. More importantly, nothing is known about these alleged further offences. Were they encounters like the one with N. S., a boy who Gibson knew well and who was thirteen when Gibson was fifteen? Were they encounters like that with A. B., where the boy’s age is unknown, where the adult co-accused Whitmore was the primary actor, and where no sexual contact ultimately occurred? Or were they far more serious incidents?

We simply do not know. [ 38 ] In spite of the above shortcomings in the historical records, and the related evidence from the 1990-1994 period, I did find some of it to be useful. In particular, I am satisfied from his testimony and from his records that Dr. Sowa was a skilled, patient, and fair-minded therapist who worked hard with Gibson and made some progress. Nevertheless, by the end of the nine month open custody sentence, Dr. Sowa had concluded that Gibson, who was now eighteen, had a sexual preference for ten year old boys that was deeply ingrained. Dr.

Sowa was sufficiently concerned about the risk of re-offending that he repeatedly raised the subject of taking Provera, an anti-testosterone drug that would reduce Gibson’s sex drive. Gibson felt that he had learned how to control his risk factors and that he did not need this medication, which is a form of chemical castration with significant side effects. [ 39 ] Dr. Sowa’s assessment was confirmed by the therapists at the J.D. Griffin Adolescent Centre, which is the other treatment program that Gibson was attending at the time.

The final report from that Centre is dated June 8, 1994, when Gibson was about to turn eighteen. The report is hearsay and certain parts of it are less reliable but I am satisfied that the conclusions and assessments of the therapists are reliable. I admitted the report in evidence in my earlier ruling and I will not repeat my reasons concerning admissibility. The weight to be given to the assessments and conclusions in the report is enhanced by their consistency with Dr. Sowa’s testimony. The J.D.

Griffin Centre report referred to Gibson having “genderless fantasies with people age 4-11” and to his “fear of further incarceration” which prevented him from fully and openly discussing his sexual offending. The report concluded with the following assessment: Paul clearly has difficulty separating his own sexual victimization from that of the children he has offended.

Our clinical understanding is that these behaviours are all ways in which Paul maintains his cognitive distortions, so as to justify his offending behaviour and avoid confronting/facing the reality of the pain he has inflicted upon his victims … Paul is still in huge denial about his offending behaviour as follows: • his lack of detail around the actual incidents; • his minimization regarding the trauma experienced by his victims;

• his continual reference to his own victimization as a way of avoiding discussion around his offending behaviour; • his insistence that he formed genuine relationships with his victims, therefore eliminating the possibility that heused any coercion or force. …Although Paul has attended sessions quite regularly and does “talk” a great deal during interviews and at group meetings, henonetheless remains a high risk to re-offend. This is the case, as he consistently chooses not to talk about his offences with any detail,thus keeping them a secret to those around him.

This means treatment cannot progress since there is little to talk about. Paul also insiststhat most of his abusive relationships were not coercive but were, in fact, quite “healthy”. This highlights his denial of confronting the real damage he has inflicted on his victims despite his claims that he knows he has donethem harm. This is also manifested in Paul’s continued effort to see himself as a victim, as he talks about this when any attempt is madeto discuss the impact his offences have had on others. [40] Of course, the concerns expressed by Dr. Sowa and the J.D.

Griffin Centre therapists in 1994 have now come true. Not onlydid Gibson re-offend in 2009 with two very young boys but he, once again, engaged in “cognitive distortions” about forming “ genuinerelationships” with these two boys, especially R. K. who he repeatedly referred to as “my son”. Finally, he has continued his pattern of“huge denial” which means that “treatment cannot progress”, as the authors of the June 1994 report put it.

I now turn to this difficultissue. (vi) The relevance of Gibson’s “denial” of the predicate offences [41] Gibson takes the position that he has been wrongly convicted of the predicate offences and that he wishes to appeal. He hastaken this position with me, in the court room, and he has repeated it with Dr. Pallandi, during the assessment. Needless to say, Gibson’sright of appeal is a critically important aspect of the justice system and it cannot be used against him.

If interlocutory appeals wereallowed, prior to sentencing, he might have changed his position. [42] Normally, an ongoing assertion of innocence would have no impact on sentencing. It is often referred to as a neutral factor,simply indicating the absence of mitigation and entitlement to leniency that would come from taking responsibility, indicating genuineremorse, and seeking to reform and change the underlying circumstances that caused the offending behaviour. It is normally an error totreat “denial” as an aggravating factor. See: R. v. Valentini et al (1999), (ON CA), 132 C.C.C. (3d) 262 at 295-8(Ont.

C.A.); R. v. Nash (2009), 2009 NBCA 7 , 240 C.C.C. (3d) 421 at 437-442 (N.B.C.A.). [43] However, there is one important exception to the above rule. In R. v. Levert (2001), (ON CA), 159 C.C.C.(3d) 71 at paras. 39-40 (Ont. C.A.), Rosenberg J.A. (Catzman and Moldaver JJ.A. concurring) held that it was an error in principle, inthat particular case, to treat the accused’s “lack of remorse” and ongoing assertion of “his innocence” as an aggravating factor indicating“a risk of re-offending”.

Rosenberg J.A. explained why it was an error in that case: Courts must be circumspect in using a perceived lack of remorse as evidence of future dangerousness.

There was nothing in this case toshow that the appellant, because he lacked remorse, would commit further offences … Rosenberg J.A. then added an important footnote, qualifying the above principle: That is not to say that failure to accept responsibility may not be a factor where treatment may be necessary to control futuredangerousness. [Emphasis added]. [44] The important point to be drawn from Levert, in my opinion, is that the accused in that case was not suffering from somecondition that required treatment in order to reduce the risk of re-offending.

Levert stands for the proposition that “denial” can berelevant to sentencing when it impedes treatment and, thereby, increases the risk of recidivism, or “dangerousness” as Rosenberg J.A.called it. In this sense, it is not Gibson’s ongoing assertion of his innocence that is aggravating. Rather, it is the negative prospects fortreating his pedophilia that is aggravating because it increases the risk of re-offending. [45] The dangerous offender jurisprudence is consistent with the above proposition drawn from Levert, which was not a dangerousoffender case.

The Courts have repeatedly referred to “denial”, especially by sex offenders but also by violent aggressive psychopaths,as a significant factor when assessing the “likelihood” test in s. 753 concerning future re-offending. Unwillingness to take treatment andprospects for successful treatment have always been important factors in these kinds of cases, when assessing future dangerousness. See,e.g.: R. v. Allen, supra at paras. 25-28; R. v. Little (2007), 2007 ONCA 548 , 225 C.C.C. (3d) 20 at paras. 40-43 (Ont. C.A.); R.v. McCallum (2005), (ON CA), 201 C.C.C. (3d) 541 at para. 47 (Ont. C.A.); R. v.

B. (R.) (2011), 2011 ONCA 328, 280 O.A.C. 329 at paras. 13-14 (Ont. C.A.); R. v. Ramgadoo, 2012 ONCA 921 at paras. 54-59. [46] The direct factual link between treatability and “denial” was drawn in R. v. B. (D.B.), supra at paras. 23-27, where MoldaverJ.A. gave the judgment of the Court and stated: Dr. Gojer and Dr. Eccles noticed two other disturbing features about the appellant that raised concerns about his treatability. First, both doctors were troubled by the appellant’s tendency to downgrade his interest in children and to deny any misconduct towardsthem.

At times, the appellant would take the position that his criminal convictions were unwarranted and that he had never sexuallyassaulted anyone. … The second disturbing feature noted by Dr. Gojer and Dr. Eccles was the appellant’s ambivalence towards obtaining treatment. Despite assurances from the appellant that he was motivated to obtain help, both doctors remained skeptical, particularly in light of theappellant’s tendency to deny his pedophilia and his prior wrongdoings. … If there was any hope at all, the appellant would have to remain motivated to obtain treatment for his entire life – and for this to occur,

he would have to accept the fact that he is a pedophile and that he poses a serious threat to children without treatment. In this respect,denial presented a serious obstacle – why take medication for a problem that does not exist? [Emphasis added]. Moldaver J.A. went on to deal with an updated assessment from Dr. Gojer, tendered as fresh evidence on appeal, and stated the following(supra at paras. 93-4): The appellant continues to be in a state of denial.

He has now conjured up an innocent explanation for the predicate offence … Dr, Gojeralso reports that the appellant’s “express commitment to treatment, including pharmacological approaches, is encouraging”. Againstthis, however, he acknowledged … that the appellant’s tendency to deny his wrongdoings and to downplay his sexual interest in childrenconstitutes “an aggravating risk factor” in terms of his treatability. [Emphasis added]. Also see: R. v. Delaa (2010), 2010 ABCA 332 , 490 A.R. 261 (Alta. C.A.); R. v. Grayer, supra at paras. 15-18, 24, 42 and 64-7;R. v.

Higginbottom (2001), (ON CA), 156 C.C.C. (3d) 178 at paras. 24-26 (Ont. C.A.); R. v. H. (M.B.), supra at paras.35-6 and 39-41. [47] It can be seen that treatability of Gibson’s pedophilia, his attitude towards treatment, and his acknowledgement of theunderlying condition that leads to his offending behaviour, are all important factors relating to the “likelihood” of future recidivism. Theevidence in this case is clear in relation to these issues. Gibson denied the predicate offences, asserting during the assessment by Dr.Pallandi that “he engaged in no wrongdoing whatsoever”.

He acknowledged being “very sexually active” when he was young but he didnot think at the time that he was “involved in anything illegal” and he was “unsure” whether he caused any harm to the victims as he didnot use threats, coercion or violence. He refused to participate in phallometric testing by Dr. Pallandi, to assist in determining his sexualpreferences, and he asserted that he was heterosexual with a preference for adult females. In terms of treatment, Dr.

Pallandi stated thefollowing: … he rated his interest in female and male children, teenaged females and males, all as “zero” and his interest in adult females as “10”[on a scale of 0-10]. He again denied any interest or sexual attraction to children …Given that Mr. Gibson maintained his innocence andhis interest in pursuing an appeal, he did not envision sex offender treatment programming or follow-up to be necessary.

He indicatedthat he would be supported by his family and he would return to work. … In essence, insight into his current circumstances and the long-term nature of his problems is poor …Further, he was not able toengage in any meaningful dialogue about the possibility of employing this treatment [sex drive reducing medication] to mitigate risk. Further, sex drive reducing medication has known side-effects and risks associated with it and would require Mr. Gibson to consent tosuch treatment and the requisite monitoring which would be essential to confirm his compliance. ...

Although it would typically be my recommendation that an offender such as Mr. Gibson should avail himself of Sex OffenderTreatment programming of a psychological nature, given his historical stance and his stance during the herein assessment, it would bedifficult to make this recommendation with any sound rational basis. [Emphasis added]. [48] None of this evidence about treatability is challenged.

In short, the record is clear that Gibson’s pedophilia is not presentlytreatable in any reliable way because he denies any sexual interest in children and, therefore, does not see the need for treatment. (vii) Conclusion concerning the “likelihood” of future re-offending [49] Taking all the above analysis and findings into consideration, I am satisfied that the Crown has proved the future conductelement of s. 753(1)(

a) and (

b) beyond reasonable doubt, that is, the “likelihood of … inflicting severe psychological damage … throughfailure in the future to restrain his … behaviour” and the “likelihood of causing injury, pain or other evil … through failure in the futureto control his … sexual impulses”. In particular, I rely on the following proved facts: • the assessments by Dr. Sowa and the J.D.

Griffin Centre therapists in 1994, concerning Gibson’s entrenched sexualpreferences at age eighteen, his ability to minimize, rationalize and engage in cognitive distortions about his offending behaviour, hispoor prospects for treatment, and his high risk to re-offend; • the confirmation of these assessments in 2009, when he deliberately acted out in the same manner and committed thepredicate offences; • the rational planning and premeditation involved in Gibson’s gaining access to and grooming of the two young victims,deliberately creating opportunities for himself to re-offend; • the cognitive distortions that he again utilized, while committing these offences and when rationalizing them afterwards; • his inability to restrain his behaviour, even when warned by his mother, who is the one person in the world who is closestto him and who he undoubtedly cares for; • the ongoing repetition of the predicate offences, in relation to two separate victims, indicating that these were not isolatedor situational offences; • the diagnosis of pedophilia, the fact that it is a life-long condition with no cure, and the limited treatments available toameliorate its risks; • the complete refusal by Gibson to acknowledge his sexual preference for children, and to engage in treatment, and theresulting exacerbation of his risk of re-offending. [50] In all these circumstances, I am satisfied that present existence of the likely or probable risk of re-offending, in the s. 753sense and as explained in Lyons and Knight, has been proved beyond reasonable doubt.

Gibson, therefore, meets the test for a dangerous

offender designation. The requisite “threat to the life, safety or physical or mental well being of other persons” has been proved,pursuant to s. 753(1)(a), and the essential elements of the s. 753(1)(

b) test have also been proved. [51] The old statutory provisions used to allow a discretion, not to declare an accused to be a dangerous offender, even when thevarious elements of the test in what is now s. 753 had been proved. See: R. v. Johnson (2003), 2003 SCC 46 , 177 C.C.C. (3d)97 (S.C.C.). That discretion was taken away by recent amendments to the Criminal Code, enacted in S.C. 2008, c. 6.

Thoseamendments came into force on July 2, 2008 and they constituted the existing law at the time when Gibson committed the predicateoffences in 2009. [52] The statutory provisions are now framed in mandatory terms and require that “the court shall find the offender to be adangerous offender if it is satisfied …” of the various requirements set out in the s. 753 test. Accordingly, Gibson must be found to be adangerous offender. [53] However, the 2008 amendments also reinstated the old discretion not to sentence a dangerous offender to an indeterminateterm of imprisonment.

That discretion, which was enacted in the 1977 legislation, was held to be significant at the time of theconstitutional challenge to Canada’s dangerous offender legislation in 1987 in R. v. Lyons, supra at 18, 29, 36 and 45. The discretionwas taken away in the 1997 amendments, at the same time as the long term offender designation was first enacted. The 1997 provision,in s. 753(4), stated: If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminateperiod. See: R. v.

H. (M.B.), supra at para. 15. [54] The present remedial provisions, post-2008, apply to Gibson and they provide as follows in s. 753(4) and (4.1):

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

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

b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment ofimprisonment for a term of two years – and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(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. [55] The net effect of these evolving amendments to the statutory scheme, over the past fifteen years, is as follows: it is nowmandatory to make the “dangerous offender” designation, once the s. 753 statutory elements have been proved; however, it is notmandatory to impose an indeterminate sentence. It can be seen that there is remedial discretion in s. 753(4), as to the appropriatesentence, but that discretion is constrained by s. 753(4.1).

I now turn to that issue. (viii) The appropriate remedy in this case [56] The key consideration under the above remedial provisions, in determining whether a lesser sentence than indeterminatedetention should be imposed, is whether that lesser sentence “will adequately protect the public”. There is some degree of over-lapbetween this requirement and the test for a long term offender supervision order under s. 753.1(1)(c), namely, whether “there is areasonable possibility of eventual control of the risk in the community”.

It has been held that these kinds of remedial sentencingprovisions do not impose a burden of proof on either party. Rather, they relate to whether the court should exercise a discretion toimpose a lesser sentence on the basis of being “satisfied” of the standard set out in ss. 753.1(1)(

c) or, in this case, s. 753(4.1). If the courtis “uncertain whether that requirement is satisfied … the sentencing judge should refuse to exercise the discretion”. See: R. v. D. (F.E.)(2007), 2007 ONCA 246 , 222 C.C.C. (3d) 373 at paras. 44-55 (Ont. C.A.); R. v. Simon (2008), 2008 ONCA 578 , 269O.A.C. 259 (Ont. C.A.); R. v. Wormell (2005), 2005 BCCA 328 , 198 C.C.C. (3d) 252 (B.C.C.A.); R. v.

Sullivan, supra at paras.42-7. [57] For a lesser sentence to “adequately protect the public”, within the meaning of s. 753(4.1), there would have to be a“reasonable expectation” that Gibson’s risk of re-offending could be controlled by some means other than indefinite detention. Thenormal means of achieving such control are treatment, community supervision, or the deterrent effect of a fit determinate sentence. [58] The latter option is not realistic in this case. Gibson is a pedophile, which is a life-long condition, and he is resistingtreatment.

The various psychiatric notes and assessments from the 1994 period show that Gibson feared prosecution and incarceration. Dr. Sowa tried to use this fear as a means of teaching Gibson behavioural controls that would help him to avoid situations where hewould be likely to re-offend. While this deterrence-based strategy may have worked for a while, the behavioural therapy was notcontinued and by 2009 the strategy had failed completely as Gibson repeatedly re-offended. Furthermore, Gibson has served over threeyears of harsh pre-trial custody at the Don Jail.

He would be entitled to significant credit, probably on a two for one basis, as he wascharged in late 2009 before the recent legislative changes relating to credit for pre-trial custody came into force in early 2010. See: R. v.Clarke, 2013 ONCA 7; R. v. Wust (2000), 2000 SCC 18 , 143 C.C.C. (3d) 129 (S.C.C.). Imposing a fit determinate sentence, inthese circumstances, would mean releasing Gibson into the community as an untreated pedophile at some point in his early to mid-forties.

This option would put the public at significant risk and cannot begin to meet the test in s. 753(4.1) of “adequately protecting thepublic”.

[59] Community supervision, under a long term offender designation, is also not a reasonable means of controlling the risk of re-offending in this case. Again, the main problem with this option is Gibson’s life-long untreated condition as a pedophile. He wouldrequire indefinite supervision and this is simply not available under a long term offender designation which would expire at some pointin Gibson’s early to mid-fifties. See: R. v. Herbert (2006), (ON CA), 207 O.A.C. 337 at para. 10 (Ont. C.A.).

Furthermore, the kind of intensive supervision that Gibson would require is similar to that rejected by the Court in R. v. Little, supra atparas. 59-62, where Cronk J.A. stated the following, speaking on behalf of the Court: In my view, both s. 753(1)(

c) of the Code and Johnson envisage that where the determination that an offender’s risk may be safelycontrolled in the community rests, as it did here, on adequate community supervision, rather than treatment, the availability of theresources necessary to implement such supervision effectively cannot be uncertain. To hold otherwise would be speculative, therebypreventing any reliable assurance that unreasonable risks to public safety can be avoided.

In this case, as I have detailed at para. 54 of these reasons, the record before the trial judge demonstrated that several of the keysupervision conditions recommended by her are incapable of performance, as a result of the current law or the resourcing conditionsapplicable to long-term offenders. In these circumstances, in my view, the trial judge’s conclusion that there is a reasonable possibilityof eventual control of Little’s risk in the community, after he attains the age of forty-five, cannot stand. I would make two further observations.

First, as I have said, the supervision controls recommended by the trial judge were described byDr. Klassen as “unusual”, “stringent”, “severe” and “strict and tight”. I agree. The recommended conditions called for almost twenty-four hour monitoring of Little in the community by officials expert in his type of disorders, coupled with Little’s residency in acontrolled environment, for ten years.

Even if the resources necessary to create such a lengthy offender-specific form of communitysupervision existed, a conclusion that I have already indicated is not supported by the evidence in this case, the overall form ofsupervision proposed comes close to replicating in the community the form of monitoring and supervision that the state provides incustodial settings.

While I recognize that under s. 134.1(2) of the Corrections and Conditional Release Act, conditions of supervision may include thosethat are “reasonable and necessary in order to protect society”, I do not believe that the statute or the long-term offender regime isintended to virtually replicate jail-like conditions in the community for offenders released from custody.

Where restrictive conditions ofthis type, like those proposed by the trial judge in this case, are necessary to control the risk of reoffending by an offender, and to therebyprotect the public , the dangerous offender provisions of the Code are engaged. In other words, protection of the public is paramount. Also see: R. v.

Trevor (2010), 2010 BCCA 331 , 257 C.C.C. (3d) 72 at paras. 34-40 (B.C.C.A). [60] For all these reasons, community supervision is not a realistic means, in this case, of meeting the s. 753(4.1) test concerningprotection of the public. [61] That leaves treatment of Gibson’s pedophilia as the last option. The modern case law in Ontario has placed considerableemphasis on treatment, in dangerous and long term offender cases involving pedophiles, if an indeterminate sentence is to be avoided. InR. v.

Higginbottom, supra at para. 26, Charron J.A., as she then was, gave the judgment of the Court in a case involving an untreatedpedophile. She stated the following: In my view the trial judge erred in exercising his discretion to impose a determinate sentence in the absence of any evidence specific toMr. Higginbottom that he could be rehabilitated within a fixed period of time. In fact, the evidence relating to the treatment possibilitiesoverwhelmingly pointed to the opposite conclusion. Just as this court concluded in R. v. Poutsoungas (1989), (ONCA), 49 C.C.C. (3d) 388 (Ont.

C.A.), it is my view that the trial judge’s error in law in the exercise of his discretion, on the facts of thiscase, has resulted in a failure to give effect to the basic purpose of the dangerous offender provisions in the Criminal Code, theprotection of the public. [Emphasis added]. The challenge in treating Higginbottom was “the tenacity of his denial that he has a problem.” A more encouraging case was R. v. H.(M.B.), supra at paras. 35-41, where the accused was also a pedophile.

He had no prior criminal record, he pleaded guilty to thenumerous predicate offences, and he commenced a course of treatment during the assessment period with Dr. Bradford, anacknowledged expert in the field. The treatment involved drugs, to reduce the accused’s sex drive, and behavioural therapy. Theaccused testified before the trial judge, acknowledged his pedophilia, and explained why and how he had come to accept the need for Dr.Bradford’s treatment regime. On this record, the trial judge accepted both Dr.

Bradford’s opinion, that the accused’s pedophilia could besuccessfully treated, and the accused’s sworn commitment to the proposed treatment regime. On appeal, given these findings by the trialjudge, Doherty J.A. gave the judgment of the Court and held that a long term offender designation was the appropriate sentence. [62] In terms of the standard that proposed treatment regimes must meet, in order to reasonably protect the public, Cronk J.A.stated the following in R. v.

Little, supra at para. 42: I do not read Johnson as displacing the principle that, to achieve the goal of protection of the public under the dangerous offender andlong-term offender provisions in the Code, evidence of treatability that (

i) is more than mere speculative hope, and (ii) indicates that thespecific offender in question can be treated within an ascertainable time frame, is required. The requisite judicial inquiry on a dangerousoffender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offenderprovisions of the Code are “sufficient to reduce [the offender’s] threat to an acceptable level”. [Emphasis of Cronk J.A.].

Thedetermination of whether an offender’s risk can be reduced to an “acceptable” level requires consideration of all factors, includingtreatability, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that anoffender will be “cured” through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof thatthe nature and severity of an offender’s identified risk can be sufficiently contained in the community, a non-custodial setting, so as toprotect the public. Also see: R. v. McCallum, supra at para. 47; R. v.

Simon, supra at paras. 94-5. [63] Unfortunately, Gibson cannot begin to meet these standards. Like the Higginbottom case, he firmly denies that he has any

problem with pedophilia and so he cannot begin to take the kind of steps seen in a case like M.B.H. There is no treatment plan, either in place or proposed, and so Gibson is asking that he be released as an untreated pedophile who has now re-offended. As Moldaver J.A. put it, speaking for the Court in R. v. B. (D.V.) , supra at paras. 80-1 , another case involving a pedophile who was “in denial” and who, therefore, had no realistic treatment prospects: The focus of such an application is on future dangerousness and the protection of society. The appellant is a pedophile.

While that is unfortunate, the reality remains that untreated, he presents a serious threat to the safety of children in our society. And, as my colleague Cronk J.A. pointed out in Little at para. 70 : “ in a contest between an individual’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.” Unfortunately for the appellant, he comes out on the losing end of that contest. Children cannot protect themselves. They are generally vulnerable and helpless. When it comes to their safety, we must be vigilant.

In the case of pedophiles for whom there is no reasonable possibility of eventual control of the risk they pose in the community, there is only one option – they must be segregated from society. [ 64 ] For all the above reasons, the s. 753(4.1) test cannot be met in this case. A determinate sentence or a long term offender designation have no reasonable prospect of adequately protecting the public. As a result, the mandatory sentence pursuant to s. 753(4) and (4.1) is an indeterminate period of incarceration in a penitentiary. E.

CONCLUSION [ 65 ] In conclusion, the Crown’s Application is allowed, Gibson is declared to be a dangerous offender pursuant to s. 753(1) (

a) and (

b) of the Criminal Code , and an indeterminate sentence of imprisonment is imposed pursuant to ss. 753(4) and (4.1) . M.A. Code J. Released: February 1, 2013 CITATION : R. v. Gibson, 2013 ONSC 589 COURT FILE NO.: 10-100000700-0000 DATE: 20130201 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – PAUL GIBSON REASONS FOR JUDGMENT M.A. Code J. Released: February 1, 2013