)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 6803

CITATION : R v MJ, 2013 ONSC 6803 COURT FILE NO.: 0216/09 DATE: 20131031 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – M.J. )) )) )) )) ) ) M. Cole , for the Crown D. Brodsky , for the defendant HEARD: June 11, 15, 18, 20, 21, & 29, 2012, February 4, May 23, June 12, July 8, and August 23, 2013 DANGEROUS OFFENDER APPLICATION REASONS FOR JUDGMENT GARTON J. : TABLE OF CONTENTS Para. introduction 1 changes to the dangerous and long-term offender legislation 4

the witnesses called at this hearing 5 the predicate offence 9 the breach of recognizance 25 background of the offender 28 the offender’s criminal record 46 the correctional services of canada records 117 Intake assessment 118 Psychiatric/Psychological Assessment Report 125 Self-Reporting Background Information 133 Testing & Recommendations 136 Correctional Plan 138 Updated Correctional Plan 141 Progress in Custody 143 Sex Offender Treatment Program Discharge Report 151 Further Information about Progress in Custody 179 THE ISSUE OF ABORIGINAL HERITAGE AND A GLADUE REPORT 199 THE OFFENDER’S STATED CURRENT ATTITUDE TOWARDS TREATMENT AND PROGRAMS 207 EVIDENCE OF DR.

TREENA WILKIE 209 Conduct Disorder and Antisocial Personality Disorder 211 Substance Abuse/Dependence Disorders 214 Paraphilias 217 Criminogenic Variables 230 Risk Assessment 232

i) The Psychopathy Checklist-Revised (the “PCLR”) 233 ii) The Violent Risk Appraisal Guide (the “VRAG”) 237 iii) The Sex Offender Risk Appraisal (the “SORAG”) 239 iv) The STATIC-2002 (Revised Version) 242

v) Dynamic Risk Variables 246 Dr. Wilkie’s Assessment of Dangerous Offender Status and Long-Term Offender Status Pursuant to s. 753 of the Code 251

i) Dangerous Offender Status 252 ii) Long-Term Offender Status 259

Summary of Dr.

Wilkie’s Findings re Long-Term Offender Status 281 EVIDENCE OF STEVEN POPOVSKI 290 Facilities and Services at the Keele Centre 292 Security 294 Community Surrounding the Keele Centre 297 Programs 298 Developing a Correctional Plan 301 Circles of Support and Accountability 308 Long-Term Supervision Orders: Length and Place of Residency 310 Violations and Rehabilitation 313 THE PRE-SENTENCE REPORT 318 Aboriginal Programs Available to a Long-Term Offender who Identifies as Aboriginal without any External Verification 321 THE LEGAL FRAMEWORK CONCERNING A DANGEROUS OFFENDER APPLICATION 330 The Records Relied on by the Crown 335 Proof of Prior Criminal Convictions and the Facts Underlying those Convictions 343 REQUIREMENTS FOR A DANGEROUS OFFENDER DESIGNATION 377 REQUIREMENTS FOR A LONG-TERM OFFENDER DESIGNATION 388 Is there a Reasonable Possibility of Eventual Control of the Offender’s Risk of Re-Offending in the Community? 401 DISPOSITION 441 OTHER ORDERS 444

INTRODUCTION [ 1 ] On April 21, 2010, the offender, M.J., age 48, was found guilty after trial of sexually assaulting the victim, M.M., on September 12, 2007. M.J. was arrested on September 13, 2007, and has remained in custody since that date. At the time of his arrest, he was bound by a recognizance pursuant to s. 810.2 of the Criminal Code , one of the terms of which was to keep the peace and be of good behaviour. As a result of his conviction for sexual assault, M.J. was also found guilty of breaching his recognizance. [ 2 ] The Crown now seeks to have M.J. declared a dangerous offender and to have an indeterminate term of imprisonment imposed on him, pursuant to s. 753(4)(

a) of the Code. The Crown submits that the dangerous offender criteria in ss. 753(1)(a)(

i) and (ii) and s. 753(1)(

b) have been met and that there is no reasonable possibility of eventual control of the risk that M.J. poses in the community. [ 3 ] The position of the defence is that M.J. falls within the definition of a long-term offender. Counsel for M.J. submits that the appropriate sentence would be two years imprisonment in addition to the approximately six years already served by M.J. in pre-sentence custody, to be followed by ten years of supervision in the community pursuant to s. 753.1(3) of the Code . CHANGES TO THE DANGEROUS AND LONG-TERM OFFENDER LEGISLATION [ 4 ] Amendments to

Part XXIV of the Code came into force on July 2, 2008. Prior to that date, a court had a discretion not to declare an offender dangerous even if the statutory criteria for dangerous offender status had been met: s. 753 stated that “the court may … find the offender to be a dangerous offender …” However, s. 753, as amended, states that “the court shall find the offender to be a dangerous offender …” The court’s discretion has now been shifted to the disposition stage after a finding that the offender meets the criteria set out in ss. 753 (1)(

a) or (b). Since M.J. committed the predicate offence in 2007 and, in accordance with defence counsel’s submissions in this regard, the pre-July 2, 2008 version of s. 753 applies in this case. THE WITNESSES CALLED AT THIS HEARING [ 5 ] Dr. Treena Wilkie, a forensic psychiatrist who completed an assessment of M.J. pursuant to s. 752.1(1) of the Code , and Steven Popovski, who is employed by the Correctional Service of Canada (the “CSC”) as a Parole Officer Supervisor at the Keele Community Correctional Centre (the “Keele Centre”), testified on behalf of the Crown. Mr.

Popovski provided information regarding the Keele Centre and other residences available for high risk offenders who are bound by a long-term supervision order. The Crown also relies on four affidavits that were filed on consent. Counsel for M.J. did not seek to cross-examine the affiants, who are as follows:

i) Sheldon Schwartz Mr. Schwartz is a parole officer employed by the CSC. He describes in his affidavit 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 other sentencing issues; ii) Nicki Smith Ms. Smith is employed by the Parole Board of Canada and is the Regional Manager of the Conditional Release Programs for the Ontario/Nunavut Region.

She describes in her affidavit the functions of the Parole Board, the parole application and release process and other features of parole administration where a sentence of two years or more is imposed; iii) Reyhan Yazar Mr. Yazar is employed by the CSC as a National Program Manager. He outlines in his affidavit the risk assessment, risk management, intervention strategies and other features of sentence administration when a sentence of two years or more has been imposed; and iv) Janet Gauthier Ms.

Gauthier is employed by the Ministry of Community Safety and Correctional Services of the Province of Ontario and is currently the Deputy Superintendent of Programs at Maplehurst Correctional Complex.

She describes in her affidavit the risk assessment, programming and other features of sentence administration where a sentence of less than 2 years has been imposed. [ 6 ] The Crown also relies on records from the CSC and the Children’s Aid Society (“CAS”), as well as documents relating to M.J.’s criminal record. [ 7 ] M.J. was the only witness called by the defence at this hearing. [ 8 ] As explained later in these reasons, a pre-sentence report was ordered by the court after counsels’ submissions on sentence.

The pre-sentence report focused on Aboriginal programs available to a person on a long-term supervision order who, like M.J., self- identifies as an Aboriginal person, even though there is no external verification of such ancestry. Counsel made further submissions after completion of the report. THE PREDICATE OFFENCE [ 9 ] The facts with respect to the predicate offence are outlined in detail in my reasons for judgment. [ 10 ] At the time of the sexual assault, M.J. was 42 years old.

The victim, M.M. was 17 years old and living with her father. [ 11 ] M.M. suffers from Attention Deficit Disorder (ADD) and consequently has trouble concentrating. She completed high school after attending special classes and was planning on taking courses in life skills so that she could live on her own and hopefully obtain employment.

[ 12 ] On the morning of September 12, 2007, M.M. got off the streetcar and started walking towards her school. She was in front of a library when M.J. called out, “Hey” and asked her if they could talk for a while. [ 13 ] M.M. recognized M.J. as someone whom she had first met in 2006. On that occasion, she had been standing outside the entrance of the Broadview subway station waiting for a bus when M.J. said “Hi” and they “kind of talked” like friends for a short time.

They said goodbye when her bus arrived and she went home. [ 14 ] After this first meeting, M.M. spoke to or saw M.J. on several occasions in the Broadview and Gerrard area. However, they never learned each other’s names. [ 15 ] On September 12, 2007, M.M. told M.J. that she did not have a lot of time to talk to him because she had to get to school. M.J. kept telling her to stay. They ended up speaking for about five minutes.

M.J. asked her if she had broken up with her boyfriend (she had disclosed to him on a previous occasion that she had a boyfriend) and kept asking her “to go out with him.” M.M. told him that she and her boyfriend had a fight but they were still together. [ 16 ] As soon as M.M. told M.J. that she had to leave to go to school, he grabbed her and hugged her, placing his hands on the middle of her back and putting his hips past her hip. He then moved both his hands under her shirt and squeezed her left breast. He was about to touch her right breast when she managed to free her hands and push him away.

M.J. fell to the ground. When he asked her why she had pushed him, M.M. told him, “Because I wanted you to let me go”. She said “goodbye.” M.J. replied, “I hope to see you again tomorrow.” He then went into the library and M.M. went to school. [ 17 ] The assault made M.M. feel “scared” and “uncomfortable.” She told a youth worker about the incident when she got to school and the police were notified. This led to a DVD-recorded interview of M.M. at the police station that same day. [ 18 ] The following day, when M.M. got off the streetcar to go to school, M.J. approached her on his bike.

The police then intervened and arrested him on the charge of sexual assault. [ 19 ] M.M. testified that after their first meeting at the subway station in 2006, M.J. kept “popping up everywhere” in the Broadview and Gerrard area. She saw him at a coffee house, a bakery, and also coming out of the library. She thought he might be stalking her. [ 20 ] M.M. saw M.J. on about nine occasions prior to the assault.

During some of their conversations, he would tell her that she was a pretty girl, that any guy who went out with her was lucky to have her, and that her boyfriend was a “smart boy to choose a pretty girl like her.” He also told her that he was 18 years old. M.M. did not believe him. He appeared to her to be in his thirties. [ 21 ] Upon arrest, M.J. was strip searched and was found to be wearing a penis ring, which was removed from his penis and testicles. At trial, M.J. testified that he suffers from a painful medical condition that causes his testicles to “go up inside”.

As a result, a doctor, whose name he could not recall, told him to wear the device he was wearing at the time of his arrest. M.J. denied that it was a penis ring or sexual device to keep him from ejaculating too quickly. He could not recall when or where he purchased the device. He never asked the officer in charge of the case, Detective Kalatzopoulos, to return the ring to him or told him that he needed it for a painful medical condition.

In fact, he told the detective that he did not suffer from any medical conditions. [ 22 ] Detective Kalatzopoulos testified that he was concerned for M.M.’s safety after learning that her assailant had indicated he would see her the next day. As a result, he and other plainclothes officers set up surveillance of the streetcar stop at Broadview and Gerrard at 8:00 a.m. on September 13, 2007. At 8:20 a.m., M.J. arrived at the stop on his bicycle and waited and watched as streetcars came and went. At 8:49 a.m., the streetcar on which M.M. was riding pulled up to the stop. She got off and crossed the intersection.

M.J. jumped on his bicycle, caught up to her and said, “Hi there.” The police promptly arrested him after M.M. confirmed that he was the male who had assaulted her the previous day. [ 23 ] The main issue at trial was identity. M.J. testified and gave a strikingly different version of events. He denied that he was the individual who sexually assaulted M.M. but acknowledged having seen or spoken to her on a number of occasions.

In my reasons for judgment at trial, I did not find M.J. to be a credible witness and rejected much of his evidence as fabrication. [ 24 ] M.M.’s victim impact statement, which was written with the assistance of her father, indicates that she has had difficulty trusting people since the assault. She continues to have nightmares about it and avoids the area where the assault took place. She fears going out at night and has limited her circle of friends to her fellow students and the social workers in her life skills class.

THE BREACH OF RECOGNIZANCE [ 25 ] On November 14, 1997, M.J. was sentenced to eight years in prison after pleading guilty to four counts of sexual assault and one count of choking. He was detained until his warrant expiry date of November 13, 2005, at which point he was released as an untreated sex offender. On November 10, 2005, three days prior to his release, he entered into a recognizance with conditions, pursuant to s. 810.2 of the Criminal Code , for a period of one year.

The conditions were as follows: • Report once a week to the police; • Report his address, any change of address and employment status to the police; • No possession of any weapons; • No contact with any victims, anyone known to him to have a criminal record, or anyone under the age of 18 except with an adult family member; • Not attend public parks, public swimming areas, community centres, day-care centres, school ground arcades or playgrounds

where children are known to be; • Not work or volunteer where he could be put in a place of trust with children; • Not enter into a relationship with anyone with children without notifying the police, who will notify the individual of his past; • Keep the peace and be of good behaviour; and • Carry a copy of the recognizance with him at all times. [ 26 ] On November 9, 2006, the recognizance was renewed for another year.

The only change was that M.J. was required to report to police once a month instead of once a week. [ 27 ] M.J. clearly violated the condition that he “keep the peace and be of good behaviour” when he sexually assaulted M.M. on September 12, 2007. As for the condition that he have no contact with anyone under the age of 18, M.J. testified at this sentencing hearing that he was unaware that M.M. was only seventeen years old. BACKGROUND OF THE OFFENDER [ 28 ] M.J. was born on April 12, 1965.

He has an older brother, Wayne, who is currently serving a life sentence for armed robbery, and a younger sister, Joy Johnstone, with whom he has had contact on only three occasions over the past 16 years. Ms. Johnstone is married and lives with her husband and children. [ 29 ] M.J.’s parents separated when he was about 10 years old. He has had virtually no contact with his father, J.J., since that time. His father did not work steadily and was an abusive alcoholic. He currently lives in Newmarket and is suffering from dementia. M.J.’s mother, Ellen Rickets, did not work outside the home. She died in June 2012.

Ms. Johnstone advised the author of the pre-sentence report, Mark Nikolic, that M.J.’s closest family relationship was with his mother. [ 30 ] M.J. claims that he was sexually molested by a local parish priest when he was seven or eight years old. M.J. was a choir boy at the time. He stopped going to that church but never disclosed the abuse to his parents or the authorities. [ 31 ] M.J. does not recall his mother punishing or disciplining him. However, his father tended to “over discipline” him when he was intoxicated. Ms.

Johnstone recalled that their father beat their mother and all the children but the offender seemed to bear the brunt of the abuse. When Ms. Rickets finally separated from their father in 1975, she initially left the children behind. The authorities intervened and, after about a week, Ms. Rickets was located and agreed to take custody of her children. [ 32 ] The CAS became involved with the family in April 1976. The initial reason for CAS involvement was that the children were being left unattended for extended periods of time. [ 33 ] M.J. experienced a number of difficulties after his parents’ separation.

He ran away from home three times before the age of twelve. He usually stayed away for several days and would live with his aunt. He mentioned during his intake assessment interview at Millhaven in January 1998 that he used to do some “borrowing” when he was under the age of 12 but did not consider it stealing. [ 34 ] In 1978, M.J. was noted as having been cruel to a cat, biting its ears until they bled. According to the CAS records, M.J. stole a pedigree dog in October 1978 and resold it for $15.00 while he was staying with an aunt and uncle.

A CAS case management note, dated March 23, 1979, indicates that M.J.’s mother “was having many problems with M.J., who had been setting fires and was disobedient and coming home late. She was at the end of her rope”. The note goes on to indicate that on one occasion, M.J. was brought home by the police after he was found riding his bicycle at 3:00 a.m. [ 35 ] During his testimony at this hearing, M.J. denied ever setting any fires or being cruel to animals.

He testified, “I don’t understand where they are getting this information from.” [ 36 ] At some point, M.J.’s mother gave custody of him to his father because she could no longer control him. M.J. was staying out until one or two in the morning and sometimes did not come home at all. He was also truant from school, pretending to go to school but then not showing up, once for an entire week. He had set more fires. On one occasion, he burnt a candle and poured wax all over the floor.

M.J. eventually resumed living with his mother. [ 37 ] In May 1979, M.J. was referred by the CAS to Moberly House, where he attended the Moberly Alternative Care Program during the day. He was enrolled in this program for just over a year, during which time he showed improvement in his overall behaviour. [ 38 ] In terms of education, M.J. testified that he was in a Special Education program for two years during high school before being admitted into the program at Contact Alternative School, where he completed Grade 12.

During his intake assessment at Millhaven in January 1998, M.J. reported that he had a Grade 9 education. Educational testing at Millhaven placed him at a 4 th grade level in language skills and at a 5.5 grade level in math. [ 39 ] According to the pre-sentence report, M.J. moved out of his mother’s home in 1981. He lived in various rooming houses and depended on social assistance for support.

He also took jobs involving manual labour, such as roofing and moving furniture. [ 40 ] In his late teens, M.J. began a relationship with a woman that resulted in the birth of a daughter, who would now be in her late twenties or early thirties. M.J. could not recall her age. He has not seen his daughter since she was three and had no idea as to her whereabouts. [ 41 ] In 1997, M.J. had a son from his relationship with V.M.H. The child was taken into the care of the CAS shortly after his birth. On November 14, 1997, M.J. pleaded guilty to sexually assaulting and choking V.M.H.

He also pleaded guilty on that date to sexually

assaulting three other women and received a total sentence of eight years plus eight months of pre-trial custody for these offences. When Mr. Nikolic asked him about his son, M.J. questioned the paternity of the boy, stating that he did not believe the child was his. [ 42 ] Following his release from custody on November 13, 2005, M.J. lived at a shelter at 973 Lansdowne Avenue. He eventually obtained an apartment at the same location. Shortly after his release, he met a woman, Margaret LaChapelle, with whom he was living at the time of the predicate offence.

Their relationship ended after his arrest on September 13, 2007, for the sexual assault on M.M. [ 43 ] In 2006, M.J. enrolled at the Liaison Culinary Arts Program. After completing the initial five-month course, he took another more advanced course that began in September 2006 and ended in January 2007. In order to obtain certification, students must complete 3000 hours of work. To that end, M.J. started working as a volunteer, cooking meals three times a week for the homeless at a church.

He was still engaged there as a volunteer when he sexually assaulted M.M. [ 44 ] M.J. testified that upon his release from custody, he intends to return to Liaison and complete all of the programs with a view to becoming a chef and possibly opening up his own restaurant. [ 45 ] Mr. Nikolic noted in his report that M.J. has spent most of his life in custody since the late 1990’s. Family connections, already weak to begin with, have long since faded. Friendships are non-existent. Consequently, if and when M.J. is released from custody, he would have to depend on support systems available through community services.

CRIMINAL RECORD [ 46 ] M.J. has a fairly extensive criminal record that includes both sexual and non-sexual offences. He agreed that every entry on his criminal record is as a result of his having pleaded guilty to the crime, which involved an admission of the underlying facts supporting the charge. However, M.J. insisted that he was only guilty of the offences that are of a non-sexual nature and maintained his innocence with respect to all his convictions for sexual offences.

The latter include an indecent assault on a ten-year-old male and six counts of sexual assault on women or young girls. [ 47 ] M.J. gave various reasons as to why he pleaded guilty to sexual offences that he now says he did not commit. He did not appeal any of these convictions and at no time sought to have his pleas of guilty set aside. [ 48 ] M.J. has always had legal representation whenever he has been charged with a criminal offence. [ 49 ] M.J. maintains that he was wrongfully convicted by this court of the sexual assault on M.M. [ 50 ] M.J.’s criminal record is as follows.

i) September 7, 1983: Theft Over $200 – conditional discharge and probation for 12 months [ 51 ] M.J. testified that this offence involved shoplifting items from a store. He could not recall what he stole. ii) January 30, 1984: Indecent assault on male – conditional discharge and probation for one year [ 52 ] The police synopsis with respect to this offence states that during the last six months of 1982, the ten-year old victim, C.K., came into contact with M.J. and the co-accused, John Hoyle, who developed a friendship with the young boy. Over this six-month period, the victim was taken to Mr.

Hoyle’s residence on numerous occasions, where various sexual acts involving all three parties took place, including masturbation and fellatio. Both M.J. and Mr. Hoyle committed buggery on the victim. After these acts, the victim was given small amounts of money. [ 53 ] On February 27, 1983, the victim’s mother received a call from a friend indicating that something had happened to her son. The mother spoke to the victim, who told her what M.J. and Mr. Hoyle had done to him.

M.J. was arrested the following day and gave an inculpatory statement. [ 54 ] According to M.J.’s version of events, the police asked him to testify against John Hoyle. When he refused, the police charged him with indecently assaulting the victim. [ 55 ] M.J. adamantly denied confessing to or committing this crime. He explained that he only pleaded guilty in order to get the matter over with and after the Crown indicated that he would be seeking a conditional discharge and probation.

M.J. asserted that the victim was mistaken when he said that M.J. indecently assaulted him. [ 56 ] M.J. did not serve any pre-sentence custody with respect to this offence. iii) October 18, 1984: Sexual assault – Suspended sentence plus probation for two years. [ 57 ] The police synopsis states that on April 3, 1984, M.J., who was 19 years old at the time, was at his mother’s residence. The victim, J.M., age 13, came over to the apartment to obtain a hat from her girlfriend, Joy, who was living at that address.

M.J. told J.M. that Joy was sleeping and then got the hat for her himself. [ 58 ] J.M. left the apartment and was walking down the stairs when she noticed that M.J. was following her. She started to walk faster in order to get away from him. However, M.J. caught up to her and, after a short conversation, picked her up, carried her down to the bottom of the stairwell and put her on the ground underneath the stairs. J.M. began to struggle with him. M.J. pulled down her jeans and ripped her panties. When she started to scream, he placed his hand over her mouth and banged her head against the concrete floor.

He placed his finger into her vagina and began to sexually assault her. He then pulled down his own pants and attempted to have intercourse with her. [ 59 ] At this point, two people who heard J.M. screaming came to her aid and stopped M.J. from proceeding further. J.M. left the

area and went home. [ 60 ] M.J. was the subject of two probation orders at the time of this offence, which took place only two months following his guilty plea to the charge of indecent assault. [ 61 ] M.J. did not disagree that these were the facts read into the record when he entered his guilty plea. However, he maintained that his sexual activities with this 13-year-old girl, which he says took place on the stairwell, were consensual. When someone came along and saw them, J.M. “freaked out” and alleged that he had sexually assaulted her. He denied banging J.M.’s head on the concrete floor.

He only pleaded guilty after the Crown agreed to a suspended sentence and because he wanted to get the matter over with. iv) October 3, 1987: Attempt theft under $1000, failing to appear, and failing to comply with conditions of a recognizance – 21 days intermittent and probation for 6 months [ 62 ] No facts are available with respect to these offences. M.J. could not recall what the offences entailed but acknowledged having committed them.

v) August 21, 1987: Theft under $1000 - $3.00 fine [ 63 ] No facts were available with respect to this offence. vi) January 26, 1994: Indignity to a dead body – 12 months imprisonment [ 64 ] The police synopsis states that on September 21, 1992, the victim, Cindy Carere, was at M.J.’s apartment in Toronto. They had been living together for a few months but had separated just prior to the night in question. Ms. Carere had returned to the apartment to retrieve some of her belongings. While there, she died. It appeared that M.J. and Ms. Carere had sex during or immediately after she passed away. [ 65 ] After Ms.

Carere died, M.J. obtained two heavy duty plastic fertilizer bags. He put the deceased into one of the bags in a fetal position and then put the other bag over the open end of the first bag. He then put the body in a garbage dumpster. The body was not discovered for five days. [ 66 ] In his victim impact statement, Mr. Carere’s father stated that M.J. “gave us hope when he knew that she was already dead”. [ 67 ] M.J. acknowledged that he pleaded guilty to this offence based on these facts. However, he testified that he and Ms. Carere, with whom he had been living for four or five months, had not separated.

She had taken drugs – he was not sure exactly what – and then died while they were having sex. He denied choking her or having sex with her after she died. He stated that he put her body in the bags and disposed of it in the dumpster out of panic. He denied leading her family to believe that she was alive when he knew that she was dead. He testified that he quit drinking and taking drugs after this incident. [ 68 ] In cross-examination, M.J. testified that Ms. Carere had taken cocaine, speed, heroin and valium that night. He denied that he had taken any drugs.

He did not call the police or 911 but just “freaked out” and panicked.

When Crown counsel asserted that “Even if she died of drugs, sir, you don’t know if she died in your apartment or in the dumpster”, M.J. responded, “No, I – I don’t know if she did or …” [ 69 ] M.J. was released on parole on May 31, 1994. vii) June 12, 1995: Sexual assault and uttering threats – charges withdrawn; M.J. entered into a peace bond. [ 70 ] No facts were available with respect to this occurrence. [ 71 ] According to M.J., the charges were withdrawn because the complainant “stood up in court and identified someone else as the perpetrator.” The Crown then asked him if he would sign a peace bond.

He agreed to sign the bond in order to get the matter over with. He denied sexually assaulting or threatening the complainant. viii) October 7, 1996: Sexual Assault – 1 day in addition to 7 months pre-trial custody, plus probation for two years [ 72 ] The police synopsis indicates that this offence took place on February 1, 1996, when M.J., age 30, attended at the home of P.B., age 18. P.B. had never met M.J. prior to this date but had spoken with him on the telephone, as his roommate was a friend of hers. [ 73 ] On the day in question, M.J., P.B. and P.B.’s roommate had coffee and talked.

P.B. agreed to walk M.J. partway back to his home. [ 74 ] While walking through a park, M.J. kissed P.B. on the cheek and mouth. He put his hand inside her top and fondled her breasts. She told him that she had to get back to her child. He then put his arms around her waist from behind and directed her to a secluded area behind several garages. At one point, P.B. pushed him backward in an attempt to stop him from leading her to this area. However, he pushed her and continued towards the rear of the garages, where he put his hand down her pants in the crotch area. He then forced her to perform oral sex on him.

She told him that she did not want to do it, but he continued to force her head down. [ 75 ] M.J. then pulled down her pants and had vaginal intercourse with her from behind, without her consent. She was unsure if he ejaculated. She was too scared to call for help. [ 76 ] When he was finished, P.B. pulled up her pants, went home, and had a shower. Her roommate realized that she was upset and spoke to her in the bathroom. P.B. told her that she had just been raped by M.J.. [ 77 ] The police were subsequently called and the victim attended at a hospital for examination and completion of a sexual assault

kit. She did not sustain any physical injuries from the assault. She was later interview by the police. A transcript of that interview provides further details of the offence. [ 78 ] According to the transcript, P.B. had called M.J.’s residence to speak to his roommate. M.J. answered the telephone and they had a conversation, during which M.J. began to ask her increasingly personal questions, such as what she looked like, whether she had a boyfriend, and how she liked to have sex. [ 79 ] The following day, M.J. called P.B. and asked if he could attend her residence. She agreed.

He came to her home that afternoon, and spoke with her roommate while P.B. put her child down for a nap. When P.B. came downstairs, she, her roommate and M.J. spoke about childhood acquaintances. [ 80 ] P.B. then left the residence for approximately 30 minutes, during which time M.J. reportedly “made passes” at her roommate. When P.B. returned, M.J. asked her to walk him halfway back to his home. [ 81 ] P.B. told the police that when they reached a park, M.J. kissed her on the cheek, on the lips and then “went up (her) top”. She said “no”, and told him that she had to get back to her daughter.

He said, “It’s okay, trust me”. [ 82 ] M.J. then took her behind a shed, and forced her to “go down on him”. He then “went down (her) pants and put (her) hand down his pants”. He then had intercourse with her from behind. She was unsure whether he ejaculated. [ 83 ] After the incident was over, M.J. asked her whether she “enjoyed it”, and whether she had ever had sex outside between two garages. He tried to kiss her, but she pushed him away. [ 84 ] P.B. went home and told her roommate what had happened. They then called M.J., who “confessed” to the incident over the telephone.

M.J. asked P.B. “if (she) enjoyed it, if it turned (her) on, and if (she) got off on it”. [ 85 ] M.J. returned to P.B.’s home that night. She told him that she had felt uncomfortable and that what he had done was wrong. [ 86 ] M.J. acknowledged at this hearing that the Crown read in the above facts when he pleaded guilty. However, he insisted that his sexual activities with P.B. were consensual. According to M.J., they met for the first time on the day prior to this incident. The next day, they were holding hands, kissing and hugging while P.B.’s roommate was in the bathroom.

When he was leaving, he asked P.B. to walk him halfway home. When they got to the park, they resumed kissing and hugging and had consensual sexual intercourse. She then left. He did not accompany her home. He denied that he ever confessed to her or her roommate and had no idea why P.B. “changed her mind and said it wasn’t consensual.” [ 87 ] According to M.J., on either the date of the preliminary hearing, trial, or as part of his guilty plea – he was not exactly sure of the type of proceeding – P.B. took the stand and testified that the sexual activities were, in fact, consensual.

The Crown then offered him a “deal” of one day plus time served in pre-sentence custody if he pleaded guilty.

He took the deal “to get it over with.” [ 88 ] M.J.’s explanation as to why he pleaded guilty to this offence was problematic: according to M.J., the sentencing judge accepted his guilty plea to sexual assault notwithstanding P.B.’s evidence that there was no assault and that she consented to the sexual activity. ix) November 14, 1997: Sexual assault (four counts) and Choking – 8 years in addition to 8 months of pretrial custody, and a firearms prohibition order for life [ 89 ] On November 14, 1997, M.J. pleaded guilty to four counts of sexual assault and one count of choking.

One of the sexual assaults took place prior to the sexual assault on P.B. The other three occurred after his conviction for that assault. A transcript of the sentencing hearing before Ferguson J. has been filed as an exhibit. The facts of the offences admitted by M.J. at that time are as follows: Sexual Assault on S.J., age 14 [ 90 ] At the time of this sexual assault, M.J., age 31, was a friend of S.J.’s father. At some point during July of 1996, M.J. called S.J., who was 14 years old, and offered her a job in the landscaping business. She indicated that she was interested.

He told her to meet him at the Riverdale Zoo. [ 91 ] After meeting at the Zoo, M.J. suggested that they take a walk in order to discuss the job. He then led her to a secluded area, where he began to fondle her. He put his hands inside her top and felt her breasts. He also put his hand inside her tights and felt her vagina. S.J. was crying throughout this incident. At one point, M.J. made her touch his penis through his trousers. He eventually stopped and told her not to tell her father. He then walked away.

S.J. did not tell anyone about this incident until 1997, after other victims had come forward. [ 92 ] M.J. testified that he never sexually assaulted S.J. According to M.J., he ended up spending a weekend at S.J.’s home because he was working with her father on a roofing project. Around 2:00 or 3:00 a.m., while he was asleep in bed, S.J. came into his room, woke him up and performed oral sex on him. He did not stop her. She then left the room. At no point did he ever take her to a secluded area and fondle her or make her touch his penis through his trousers.

M.J. testified that he was very surprised when he was charged some time later with sexually assaulting S.J. [ 93 ] In cross-examination, M.J. was questioned about statements he made concerning this offence when he was enrolled in a sex offender treatment program at the Ontario Regional Treatment Centre (RTC) in Kingston during his incarceration. The psychologist, Dr. Ida Dickie, states in her discharge report, dated April 17, 2001, as follows: M.J. adamantly states that this victim is lying. He stated that the ‘real story’ is that his victim’s mother was angry with him because he

kept taking her husband out drinking, who would then become physically violent upon returning home. As a way to get back at M.J., she had her 14-year-old daughter charge him with sexual assault. [ 94 ] M.J. had no recollection of having provided this version of events regarding the sexual assault on S.J. [ 95 ] In her victim impact statement, S.J. states that she has been diagnosed with post-traumatic stress disorder. She is in therapy and takes medication for this condition. S.J. indicates that she has difficulty trusting men, which has caused great stress in her current relationship.

She sometimes wakes up in cold sweats, screaming “don’t touch me.” She is always looking over her shoulder, afraid that she might see M.J., even though she knows that this is an irrational fear as he is in custody. Sexual Assault on M.R., age 19 [ 96 ] M.R., who was 19 years old at the time of the sexual assault, is a mentally challenged individual. On February 2, 1997, she was at a variety store located at Dundas Street and Leslie, where she met M.J. for the first time.

M.J. was with his two nieces, ages four and five. [ 97 ] M.J. persuaded M.R. to accompany him to a nearby apartment building, where he dropped off his nieces. Although M.R. stated that she wished to leave at that point, M.J. convinced her to accompany him into a laneway. Once there, he attempted, unsuccessfully, to have sexual intercourse with her. He then took her to a garden shed located behind the building and again attempted sexual intercourse.

When a passer-by appeared, M.J. fled the scene. [ 98 ] According to M.J.’s testimony at this hearing, M.R. began talking to his two young nieces while he was in the variety store and ended up accompanying them to the apartment. He testified, “And then she wanted to leave and I let her go. There was no sexual assault. That was the one where the DNA did not match mine.” According to M.J., this charge was withdrawn because he was excluded as the donor. However, the transcript of the proceedings before Ferguson J. clearly indicates that the charge was not withdrawn.

M.J. denied attempting to have sexual intercourse with M.R. in the laneway or the garden shed. Choking and Sexual Assault on V.M.H., age 19 [ 99 ] The victim, V.M.H., age 19, had been M.J.’s common law spouse and, at the time of the choking incident on March 5, 1997, was carrying his child. Prior to this incident, V.M.H. had broken up with M.J. and had left the city for a time. When she returned, she intended to stay at a shelter. [ 100 ] When V.M.H. happened to run into M.J. on March 5, 1997, he offered to help her move her belongings to the shelter.

As they were walking near the City Adult Learning Centre on the Danforth, M.J. suddenly reached out, grabbed V.M.H. with both hands and started to choke her around the neck. V.M.H. fell to the ground and lost sensation in the lower part of her body. Just before she passed out, she heard M.J. state, “Why don’t you die? You’re stubborn.” A few minutes later, she regained consciousness and reported what had transpired to police. [ 101 ] V.M.H. told the police that in February 1997, when they were still a couple, M.J. had taken her to his uncle’s residence at 1480 Dundas Street.

While at the apartment, V.M.H. had a bath and was wrapped in a towel. M.J. demanded sex from her. When she refused, he threw her on the bed and began to choke her by wrapping his hands around her neck. He commenced sexual intercourse with her but then withdrew, demanded oral sex, and then forced her to comply with his demand. [ 102 ] According to M.J., the February 1997 incident took place not at his uncle’s residence but at his mother’s apartment. He and V.M.H. got into an argument and he hit her. They then had consensual sex. In answer to the leading question “Was this make-up sex?” M.J. stated, “I think so.

I am not sure.” When asked whether he hit V.M.H. with an open or closed fist, he stated, “A slap. I don’t punch women. I just slapped her.” He could not recall what caused him to become so angry that he resorted to physical violence. [ 103 ] In cross-examination, when asked, “Have you slapped other women?” M.J. replied, “That’s – I think that’s about it, the only person. Two or three times, that’s all I hit her.

It was a slap.” He explained that he only slapped V.M.H. once during the February 1997 incident but that he had also slapped her on another occasion. [ 104 ] M.J. testified that V.M.H. had had a few drinks that night at a tavern. In terms of his own attendances in taverns, M.J. stated that he goes to taverns but he only drinks pop or milk. [ 105 ] M.J. denied that he knew V.M.H. was pregnant with his child in March 1997. He only learned of the pregnancy after he was convicted of choking her and was serving the eight-year sentence.

He recalled that a CAS employee visited him at the prison, where he signed various documents concerning the child. [ 106 ] M.J. denied that he and V.M.H. had separated at the time of the March 1997 incident. It was only after he was arrested that she moved to a shelter. [ 107 ] M.J. testified that on March 5, 1997, he and V.M.H. had been at his grandmother’s house and had been arguing all day “about stupid things.” They ended up walking towards the Adult Learning Centre, as V.M.H. wanted to register at the school. They continued arguing and fighting.

M.J. slapped V.M.H. once and then “jumped on the TTC.” He denied choking her. He only pleaded guilty to choking her in order to avoid a dangerous offender application being brought by the Crown. He denied ever sexually assaulting V.M.H. He also testified that he did not remember telling V.M.H. “Why don’t you die. You’re stubborn.” [ 108 ] In her victim impact statement, dated April 4, 2011, V.M.H. indicates that after the choking incident in March 1997, she was left with marks on her throat.

She was taken to hospital but released the same day. [ 109 ] In terms of the long-term effects that these offences have had on her, V.M.H. states in her victim impact statement that she has difficulty thinking clearly. It has been hard for her to be in a relationship as she does not trust people. She is fearful and nervous,

especially around loud noises. She expressed fear that someday M.J. will find her and “finish what he tried to do” on March 5, 1997. Sexual Assault on B.M., age 15 [ 110 ] On March 28, 1997, at approximately 9:00 p.m., the 15-year-old victim, B.M., was at the Maple Leaf Tavern located at 955 Gerrard Street to talk to one of the waiters. While she was there, M.J. approached and engaged her in a conversation. When the conversation became sexual, B.M. decided to leave. She crossed the street to Gerrard Square and went into a McDonald’s Restaurant.

M.J. followed her inside, grabbed her by the back of the head and dragged her to the rear of a nearby supermarket. [ 111 ] Once there, M.J. pulled down B.M.’s pants and underwear and forced her to the ground. B.M. resisted, but he banged her head on the ground and told her that she had no choice but to comply. M.J. then had sexual intercourse with her while squeezing her throat and calling her a slut. He also told her that he had AIDS and that she would get it too. [ 112 ] After the assault, M.J. told B.M. not to tell anyone or he would kill her. He then forced his penis into her mouth but B.M. bit it.

At that point, she was able to get away. [ 113 ] M.J.’s version of events was as follows. He had been playing pool with his cousin in the tavern for about half an hour when B.M. approached him. They had not previously met. She had been drinking. M.J. was unaware that she was drinking underage. When she ran out of money to buy more drinks, she “propositioned [him] to pay her for sex, which happened.” He gave her $50.00 in cash and they stepped out of the bar. B.M. performed oral sex on him and they also had consensual sexual intercourse. He denied banging her head on the ground. There was no violence.

Afterwards, he returned to the bar and continued to play pool. B.M. was “running around the bar drinking” and “going from table to table.” [ 114 ] M.J. testified that he was surprised when he was charged with sexually assaulting and threatening B.M. He denied that he had AIDS or telling B.M. that he had AIDS. He only pleaded guilty to sexually assaulting B.M. in order to avoid a dangerous offender application. Offences withdrawn by the Crown on November 14, 1997 [ 115 ] In addition to the above offences, M.J. was also charged with sexually assaulting three other women.

Those charges were withdrawn by the Crown and M.J. entered into peace bonds with respect to each of the three complainants. Accused’s request to take counselling during proceedings on November 14, 1997 [ 116 ] At the sentencing hearing, M.J. told Ferguson J. that he wanted to take counselling. Justice Ferguson recommended that he seek and receive comprehensive treatment with respect to anger control and aggressive sexual conduct.

THE CORRECTIONAL SERVICES OF CANADA RECORDS [ 117 ] The following information is taken from the records of the CSC, which were created while M.J. was serving his eight-year sentence in the penitentiary.

Intake Assessment [ 118 ] The Records indicate that during his intake assessment on January 27, 1998, M.J. stated that he was not guilty of any sexual offences and that the victims were either lying, fabricating stories, coming on to him or the offences were out and out “bullshit.” In cross-examination at this hearing, M.J. acknowledged making this statement but denied using the word, “bullshit.” He agreed that, in his view, the victims were the sole ones to blame for his wrongful convictions. [ 119 ] According to the intake assessment, M.J. described the 1992 death of his former common-law spouse, Ms.

Carere, as a “freaky” experience. He stated that on the day in question, they had injected themselves with cocaine and then made love. He denied that Ms. Carere had ended the relationship and was at his apartment just to pick up some of her belongings. According to M.J., Ms. Carere died during their sexual activity. He had heard that “her heart exploded or something like that.” He panicked and put her body in a couple of bags. He then put her in a dumpster. [ 120 ] M.J. admitted to abusing cocaine and living in the fast lane in the past.

A number of his friends and associates were criminals although he stated that he currently had a few friends who were pro-social. [ 121 ] M.J. stated that he began using drugs and alcohol in his early teens but had not had a drink for two-and-a-half or three years. In his late teens or early twenties, he became a heavy user of cocaine.

In the early 1990’s, he took an eight-week substance abuse program at the Addiction Research Foundation and has not used any drugs since completing that program. [M.J. reiterated during his testimony at this hearing that he had successfully completed this program and that he does not take drugs.] He stated that drugs and alcohol were not involved in his current offences.

He reported no history of suicide attempts and stated that he wanted to live until he was ninety. [ 122 ] M.J. stated that he completed an Anger and Stress Management Program at the Clarke Institute of Psychiatry in 1996 but that he continued to have angry outbursts. He was willing to take another anger management program.

However, he denied being physically abusive towards any of his partners and stated that he only becomes physical with a partner when he is defending himself. [ 123 ] During the intake assessment, M.J. indicated that he did not view himself as having any sexual problems and that he had never taken any programs for sexual offenders. However, he stated that he would participate in treatment if asked. [ 124 ] M.J. expressed a dim view of all parties involved in the criminal justice system.

He asserted that he would change the criminal justice system so that innocent people like himself would not be “made” to “make deals” with the Crown out of fear of being declared a

dangerous offender. Psychiatric/Psychological Assessment Report [ 125 ] As part of the intake process, M.J. was assessed by the psychologist, P. Bruce Malcolm, who was the coordinator of the sex offender treatment program at Millhaven, and Deb Kershaw, who is a sex offender assessment specialist.

Their report, dated February 2, 1998, includes a review of the facts underlying M.J.’s convictions for sexual offences and his statements regarding his criminal history. [ 126 ] M.J. asserted to the authors of the report that he only pleaded guilty to the four sexual assaults before Ferguson J. because the Crown was threatening to pursue a Dangerous Offender designation. By entering guilty pleas, he also avoided having to discuss the other victims (in court). [ 127 ] M.J. denied that he choked or physically assaulted his former girlfriend, V.M.H. He explained that V.M.H. was threatening him with a metal bar.

In order to “defend” himself he pushed her against a wall, using her throat as the pushing point, and took the bar away from her. He denied knowing that she was three months pregnant at the time. He mentioned that he could not sexually assault his former girlfriend by virtue of the fact that she was his girlfriend. He suggested that she always consented to his sexual requests or demands. [ 128 ] In cross-examination at this hearing, M.J. did not deny making the statement that he could not sexually assault his girlfriend by virtue of the fact that she was his girlfriend.

However, he stated that he did not recall making such a statement. When asked whether he believed that such a statement was true, M.J. replied, “I don’t know.” [ 129 ] According to the Assessment Report, M.J. became confused in discussing the other victims, as well as the complainants with respect to sexual offences for which he had been arrested and charged but not convicted. For example, the Assessment Report outlines the allegations with respect to two sexual assaults in July 1996. The victim in one of these assaults was the 14-year-old, S.J.

The complainant in the other case was also 14 years old and, like S.J., allegedly agreed to meet M.J. at the Riverdale Zoo to discuss a landscaping job with him. It was alleged that M.J. told her that she could be a model and lifted up her top to see if she was “skinny” enough. He then attempted to kiss her. When she began to leave, he grabbed her and pulled her into him. He thrust his hips and genital area into her hips. The complainant left but did not report the assault, which only came to light during the subsequent investigation of M.J..

M.J. told the authors of the Report that he believed that he had pleaded guilty to this sexual assault when, in fact, he had not. M.J. clearly recalled the complainant but claimed that another male had “cupped her.” [ 130 ] As for the sexual assault on S.J., M.J. told the authors of the report that the victim “came onto [him]. He stated that he spurned her sexual advances and “pushed her away”, using her breasts as a push (away) point. In cross-examination at this hearing, M.J. stated that he did not recall telling Mr. Malcolm that he pushed Ms.

Jenkins away using her breasts as a push away point. [ 131 ] According to the Assessment Report, M.J. stated that he did not rape M.R. and that his uncle was the perpetrator of this crime. At this hearing, M.J. denied making this statement. [ 132 ] The Assessment Report indicates that M.J. denied knowing B.M., whom he pleaded guilty to sexually assaulting in March 1997. He stated that this was a case of mistaken identity. At this hearing, M.J. testified that he did not remember saying this. Self-Reporting Background Information [ 133 ] M.J. told Mr.

Malcolm that he was sexually abused at the age of eight or nine by an adult male when he was a choir boy. His first consensual sexual experience was at the age of thirteen with a girlfriend who was the same age. He stated that he had had five or six different sexual partners in his life and had been involved in two common-law relationships. The first union produced one child, with whom M.J. has no contact. The second relationship was with Ms. Carere and began when he was about twenty-three years old. [ 134 ] His most recent relationship was with V.M.H., and lasted about three months.

According to M.J., V.M.H. started using illegal narcotics, which caused many arguments between them. He asserted that he ended the relationship and “threw her out.” [ 135 ] M.J. described himself to Mr. Malcolm as “warm, friendly, talkative and okay.” Testing & Recommendations [ 136 ] M.J.’s score on the PCL-R indicated that he presented as a high risk for violent recidivism. He was also assessed on the Violence Risk Appraisal Guide (VRAG) and produced a score that suggested a 76% probability of violent or sexual recidivism after seven years. [ 137 ] Mr.

Malcolm concluded that overall, M.J. presented a high risk for re-offending. He recommended treatment in a High Intensity Sex Offender Program but also stated that “given his present state of denial, he is not a good candidate for treatment at this time”. It was further recommended that M.J. be placed at Joyceville Institution. Correctional Plan [ 138 ] The initial Correctional Plan recommended that M.J. take the following programs: Cognitive skills; Anger management; and High intensity sexual treatment program.

[ 139 ] The sexual treatment program at the RTC at Kingston Penitentiary is a six-month intensive program that includes individual and group therapy. Topics include victim awareness and understanding, social skills, sex education, relapse prevention and individual therapy. Although M.J. indicated that he would take the program, the prognosis for his success was poor given that he denied all of his sexual criminal history. [ 140 ] The Correctional Plan also recommended that M.J. upgrade his education to Grade 12 in order to complete a job search program.

Updated Correctional Plan [ 141 ] M.J. arrived at Joyceville Institution on February 12, 1998, and, within five hours, was assaulted by other inmates as a result of the nature of his crimes. He was placed in segregation for his own protection. He expressed an interest in “addressing his criminogenic needs” but, according to an updated Correctional Plan dated February 27, 1998, he continued to deny responsibility for his offences. He was referred for the above-named programs.

He refused to sign his Correctional Plan as he “did not agree with the info.” [ 142 ] M.J. was transferred to Warkworth Institution on June 16, 1998. An updated Correctional Plan, dated July 14, 1998, confirmed the initial plan and recommended programming. It also stated that M.J. would not be considered for a transfer to reduced security or any form of conditional release unless his risk had been reduced by engaging in the recommended programs.

Progress in Custody [ 143 ] An evaluation sheet, dated October 1, 1998, indicates that M.J. was working in an office cleaning position and had completed his duties in an efficient manner and with apparent care. However, a November 5, 1998 evaluation sheet stated that he was not following the

schedule and needed closer monitoring. His evaluation sheet for December 14, 1998, stated that his work was not up to the required standard. He was not recommended for a pay increase. [ 144 ] In December 1998, M.J. completed a Grade 9 credit in custodial services. Activity Records for April, May and June of 1999 show that he was missing classes on a consistent basis and, in October 1999, he was suspended for his refusal to attend class.

However, it was later learned that his absences were due to health problems as he was diagnosed on October 5, 1999 with Hepatitis C. [ 145 ] By March 2000, M.J. had completed some Grade 10 credits and a sheet metal course. He was enrolled in a computer course, which he completed in September 2000. He was also working in the kitchen. [ 146 ] A Progress Report, dated September 14, 1999, noted that although M.J. had previously denied knowing that his common-law partner, V.M.H., was pregnant at the time of the choking offence, he now admitted that he was aware of the pregnancy.

M.J. had earlier taken the position that he did not know the victim of the March 1997 sexual assault, B.M., and that it was a case of mistaken identity.

However, during the September 14, 1999 case conference, he acknowledged having met B.M. through mutual friends but maintained that he did not sexually assault her. [ 147 ] A Correctional Plan update, dated September 20, 1999, indicated that M.J. was involved in four incidents involving threats to other inmates and a verbal altercation with another inmate. [ 148 ] In the Casework Record Logs from March through to July 2000, it was noted that M.J. was “somewhat motivated to deal with his treatment needs”.

His behaviour and attitude in the institution and unit were very good and he had not incurred any institutional charges. [ 149 ] On May 3, 2000, M.J. signed a consent form to participate in a six-month high intensity sexual treatment program. [ 150 ] A Progress Report, dated November 29, 2000, noted that M.J. had completed Grade 11 courses, including the sheet metal course. He continued to work as a cleaner. However, he had been suspended from working in the kitchen because of his work habits and constant aggressive behaviour towards other inmates.

Sex Offender Treatment Program Discharge Report [ 151 ] According to M.J., he was only in the six-month sex offender treatment program at the RTC for two weeks before he was “kicked out.” However, the psychologist, Dr. Ida Dickie, indicates in her April 17, 2001 Discharge Report that M.J. was in the program for three-and-a-half months.

He began the program on November 30, 2000, but was discharged on March 19, 2001, as a result of his “substantial level of denial, which interfered with completing important aspects of the treatment program such as empathy and offence cycle components.” It was noted that a referral could again be considered closer to the end of his sentence, after he had addressed “some of his denial and minimization through individual counselling.” [ 152 ] In the Discharge Report, Dr. Dickie states: At this point in time, M.J. remains entrenched in denial in regards to the details of the current offences.

M.J. indicated that the only reason he pled guilty to the current offences was because the Crown was threatening to bring forward a dangerous offender application.

When he was questioned about this reasoning, he indicated that although he is not guilty he did not want to take the chance as they were “dumping all the unsolved sexual assault cases in Toronto, 67 charges in all, on him”. [ 153 ] M.J. was noted as adamantly denying his sexual assault history. [ 154 ] The Discharge Report indicates that M.J., in discussing the indecent assault on the 10-year-old boy in 1984, stated that he did not abuse the victim but simply watched his friend abuse him. The reason he was convicted was because he would not give the name of his friend to the police.

When questioned further, he stated that “children can make their own decisions if they want to have sex with an adult”. M.J. therefore did not see anything wrong with playing video games while his friend sexually molested the boy in his presence.

[ 155 ] The Discharge Report indicates that in discussing the 1984 sexual assault on the 13-year-old girl who came looking for her hat, M.J. stated that they engaged in consensual sex outside the elevator of his mother’s residence. [ 156 ] With respect to the 1994 conviction for indignity to a dead body, M.J. denied that his relationship with Ms. Carere had ended. They had injected themselves with cocaine and, while “making love”, she died. [ 157 ] Under the heading “Family and Personal Background” it was noted that M.J. did not adequately complete the autobiography assignment as per treatment requirements.

However, he did state that he was sexually abused by male and female staff while under the auspices of the CAS. M.J. believed that this could be the cause of any sexually inappropriate behaviour on his part. However, he also denied having a sexual behaviour problem. [ 158 ] M.J. is quoted in the Discharge Report as stating that he “can’t stand women” and that he believes this attitude may be as a result of the sexual abuse he experienced while with the CAS. When asked why he sexually assaulted mostly women when both male and female individuals had molested him, he replied, “I don’t know”.

This disclosure regarding prior sexual abuse differed from his intake assessment, where he stated that he had been abused by an adult male when he was eight or nine years of age. [ 159 ] In cross-examination at this hearing, M.J. stated that he could not recall telling Dr. Dickie that he “can’t stand women” but did not deny making this statement. [ 160 ] Under occupational history, it was noted that M.J. did not have a stable employment history and had relied on social assistance for most of his life. [ 161 ] Under the heading “Relationship History and Sexual Development”, Dr.

Dickie noted that M.J. recently disclosed that he has been exclusively homosexual all his life. When it was pointed out to him that he had been involved in two heterosexual common law relationships that produced two children, M.J. denied that they were really relationships. He stated that his female partners would use a “strap on” when they engaged in sex and as such they mirrored homosexual sex. Dr. Dickie noted that this did not explain how his girlfriends became pregnant.

M.J. had difficulty explaining his point of view when questioned about the inconsistencies in his position about his sexual orientation. [ 162 ] In cross-examination at this hearing, M.J. denied ever stating that he was homosexual or making any reference to “strap on” devices. He insisted that he was “straight.” [ 163 ] Phallometric testing was completed in preparation for M.J.’s commencement of the sex offender treatment program at the RTC.

M.J.’s responses on the Quincy Child Sexual Violence Profile were highest to scenes of “passive and coercive sexual activity with prepubescent males and females”, which is considered a deviant profile. [ 164 ] Psychological testing was also completed prior to M.J.’s entry into the sex offender treatment program. M.J. did not appear to have a current alcohol or drug problem. On the High Risk Situation Test, he did not identify any situations that would put him at risk for committing another offence. His response pattern was consistent with his current level of denial.

M.J. did not endorse attitudes associated with sexual offences on the Cognitive Distortion (Rape) Scale or the Cognitive Distortion (Child Molester) Scale. The results on the Multiphasic Sex Inventory (MSI) suggested that M.J. presented himself as essentially asexual and that he was “possibly lying about his sexual interests.” M.J. did not endorse many cognitive distortions associated with sexual offending. The MSI indicated that he was not overly motivated to participate in treatment. [ 165 ] In

summary, the assessor concluded that the psychometric evaluation “clearly demonstrates that M.J. has an understanding of what is considered appropriate and inappropriate sexual behaviour.

In this light, his extensive sexual assault history can only be interpreted in terms of his callous disregard for others’ feelings.” [ 166 ] The pre-treatment risk assessment tools included the PCL-R, which assesses how close an individual is to the prototypical psychopath, the Sex Offender Risk Appraisal (SORAG), the Static 99 and the Sexual Violence Risk Assessment Guidelines (SRV 20). [ 167 ] The PCL-R score placed M.J. in the high-risk category to re-offend. His total score was at the 82 nd percentile.

In other words, his score was higher than approximately 82 percent of individuals in the prison population sample. [ 168 ] M.J.’s SORAG score also placed him in a high risk category.

Other offenders with similar scores recidivated at a rate of 75 percent over seven years and 89 percent over ten years. [ 169 ] On the Static-99, which aims to predict risk of sexual recidivism in particular, M.J. obtained a high risk rating with a 39 percent probability for sexual recidivism over five years and a 44 percent probability for violent recidivism over 5 years. [ 170 ] M.J.’s score on the SRV-20 was also indicative of high risk. [ 171 ] The actuarial, as well as clinical guidelines, estimated M.J.’s risk for re-offence at the high-moderate range for general recidivism and in the high range for violent and sexual recidivism.

Had M.J. completed the sex offender treatment program, it may have helped to reduce his risk for sexual and violent recidivism. [ 172 ] While in the program, M.J. failed to complete the autobiographical assignment, stating that he could not recall any details of his life prior to age 27. [ 173 ] When asked by Dr. Dickie as to why he was participating in treatment, M.J. stated that he did not have a problem with sexually assaultive behaviour and that he was taking the program in order to reduce his security level. M.J. testified that he did not recall making this statement. [ 174 ] According to Dr.

Dickie’s Discharge Report, the only behaviour for which M.J. accepted responsibility was with respect to his

common law spouse, V.M.H. He stated that while they were engaged in consensual intercourse, V.M.H., at the last minute, changed her mind and did not want him to ejaculate inside her. M.J. ignored her wishes and did ejaculate inside her. He stated that “there should be a law that men can use to charge women when they do this type of thing, as it is very cruel.” During his testimony at this hearing, M.J. could not recall making such a comment.

He denied having admitted to sexually assaulting V.M.H. [ 175 ] M.J.’s disclosures during group therapy sessions consisted mainly of his denials of having committed the offences. His written work suggested “no real effort.” He was “clearly not invested in treatment at the initial stage.” He minimally participated in the Cognitive Therapy module, and did not identify any thoughts, feeling or events related to his offending pattern. [ 176 ] In her

summary, Dr. Dickie stated that M.J. was discharged from the program because he was not amenable to treatment. His level of denial precluded him from benefiting from group therapy. She was of the view that M.J. would be better suited to individual counselling aimed at reducing his level of denial and increasing his acceptance of responsibility for his sexually assaultive behaviour. M.J.’s performance in the treatment modules he did complete was less than satisfactory. [ 177 ] Dr.

Dickie concluded that “at this point in time, M.J. is an untreated sexual offender and should be considered a high risk to re- offend sexually or violently upon release.” M.J. testified at this hearing that although he disagreed with this conclusion, it has not caused him to distrust doctors in terms of their ability to treat him for any sexual deviancy he might have. [ 178 ] M.J. testified that after he was discharged from the Sex Offender Treatment Program, he was returned to Warkworth Institution.

He continued to indicate to his parole officer that he was prepared to take any and all treatment programs but refused to acknowledge that he had committed any sexual offences. He also refused to sign his correctional plan because to do so would be an admission that he had committed those offences.

Further information about progress in custody [ 179 ] In a Security Level Referral Decision, dated April 20, 2001, it was noted that when asked why he was discharged from the high intensity sexual offender program, M.J. stated that “they wanted me to admit to doing things I did not do (his offences) so they sent me back”. M.J. still refused to admit to his offences and stated that he pleaded guilty to the charges to “avoid being declared a dangerous offender”.

M.J. was in complete denial and stated that he would stay incarcerated until his warrant expiry date before he would admit to anything. [ 180 ] M.J. indicated a willingness to participate in all other treatment programs but his motivation was questioned as a result of his refusal to participate in the one program deemed essential to successful reintegration. [ 181 ] M.J. completed a cognitive skills program that ran from August 16 to October 24, 2001. His performance report indicates that he demonstrated a moderate improvement in his ability to recognize, identify and solve problems.

He also completed a nine-week anger management program that ran from January 7 to March 15, 2002. His performance report indicates that overall, he showed improvement in some areas of the program. [During his testimony at this hearing, M.J. could not recall whether or not he took an anger management course while serving his sentence.] [ 182 ] According to the Correctional Plan Progress Report dated April 4, 2002, M.J. expressed surprise when informed that his file suggested that he does not take responsibility for any of his sexual offences.

However, when his criminal history was reviewed with him, he only admitted to sexually and physically assaulting his ex-common law spouse in 1996. He still denied most of his sexual offences and thereby showed little insight into his criminal behaviour. [ 183 ] M.J. suggested to the author of the Progress Report that Dr. Dickie was not a registered psychologist and that he had the paperwork to prove it. He contended that as a result of her lack of credentials, he was denied professional help when he was at the RTC for the sex offender treatment program.

He also claimed that he did not deny his offences during the program. [ 184 ] During this hearing, M.J. denied alleging that Dr. Dickie was not a registered psychologist but added that he had heard she was a student. He denied stating that he had the paperwork that proved she was not registered and asserted that the author of the Progress Report was mistaken in this regard. [ 185 ] In a Detention pre-screening recommendation, dated April 23, 2002, it was noted that M.J. still maintained that he only pleaded guilty to avoid a dangerous offender application.

After a thorough review of M.J.’s criminal background and his refusal to accept any responsibility for his sexual offences, it was recommended that M.J. be detained until his warrant expiry date. It was the opinion of his case management team that “there would not be adequate supervision or enough controls in the community for (his) risk to be considered manageable.” [ 186 ] In an Assessment for Decision, dated August 10, 2004, it was noted that M.J. was still denying the sexual component of his offences and had not accepted responsibility for his actions.

He had no commitment to any type of relapse prevention plan and was content to remain incarcerated until his warrant expiry date. [ 187 ] According to the Correctional Plan Progress Assessment dated August 10, 2004, M.J. remained “offence free” in the institution and was respectful in his dealings with staff members. He was working as a cleaner.

He voiced an intention not to complete the remaining programs identified in his Correctional Plan. [ 188 ] In a National Parole Board decision dated November 5, 2004, M.J.’s detention until his warrant expiry date was confirmed. [ 189 ] In the Assessment for Decision, dated July 21, 2005, M.J. was still refusing to participate in a sex offender treatment program and had not presented any release plans.

Continuation of the detention order was recommended. [ 190 ] On October 13, 2005, the National Parole Board again confirmed M.J.’s detention until his warrant expiry date as there was no new information provided to the Board that would have altered the assessment of M.J.’s risk.

[ 191 ] M.J. testified that prior to taking the witness stand at this hearing, he had never seen any of the Corrections Canada Records (although those records were disclosed to the defence well before this hearing) and that he was therefore not in a position to agree or disagree with the contents of the records. However, it was noted, for example, that at the bottom of Dr. Dickie’s Discharge report, she states: M.J. was discharged from the program and transferred to [Warkworth Institution] before the completion of the report. He was given an opportunity to review the report and offer feedback.

M.J. declined to provide feedback. [ 192 ] M.J. maintained that he never actually saw the Discharge Report and that “they” just “read some of it. They didn’t read it all” to him. He then testified that he thought the entire report was read to him. He initially stated that he was not given an opportunity to agree or disagree with contents of the report. He then testified that he was asked to provide feedback but did not give any because he “just figured I was kicked out.

You can’t say nothing about it.” [ 193 ] M.J. denied ever seeing the Intake Assessment Report, although a note at the end of the report states that a copy was provided to him. [ 194 ] M.J. testified that he never saw the Psychological/Psychiatric Assessment Report prepared by Mr. Malcolm and Ms. Kershaw. [ 195 ] He agreed that he had an opportunity to review the February 24, 1998 Correctional Plan, which he refused to sign.

A note at the end of that document states that M.J. “disagreed with info.” [ 196 ] M.J. testified that he did not know anything about the August 8, 1998 Correctional Plan, which he did not sign. However, once again, a note at the end of the plan indicates that a copy was provided to him. [ 197 ] M.J. denied that he had an opportunity to read through his Correctional Plans because inmates are not allowed to keep documents in their cells. He would have had to make a special request to see these and other documents.

He never made such a request. [ 198 ] M.J. acknowledged having seen the documents in the Correctional Records that bear his signature. However, he testified that the fact that he signed those documents did not mean that he necessarily agreed with their contents. He denied ever seeing a letter from the Parole Board, dated November 5, 2004, which is addressed to him at Warkworth Institution, informing him that he had been denied parole and the reasons for that denial. He also denied receiving a similar letter from the Parole Board dated October 13, 2005.

According to M.J., he was simply told that he would not be getting parole. He stated that this did not surprise him since he had not completed the sex offender treatment program. THE ISSUE OF ABORIGINAL HERITAGE AND A GLADUE REPORT [ 199 ] During the course of his pre-sentence custody, M.J. has participated in the Native Spiritual Program through the John Howard Society.

Prior to his incarceration, he accessed the services of Miziwe Biik Aboriginal Employment and Training and several other Aboriginal agencies. [ 200 ] In response to my inquiry as to whether M.J. wished to have evidence gathered as to his Aboriginal circumstances, Mr. Brodsky, on behalf of M.J., specifically waived the preparation of a Gladue report. This waiver was reaffirmed during counsel’s submissions. [ 201 ] Following submissions, the case was adjourned for my sentencing decision.

However, on May 16, 2013, I received a letter from M.J., who, among other things, revoked his waiver with respect to the Gladue report. M.J. stated in his letter that he “wanted the Courts to know that I identify as being a First Nations individual and therefore should qualify for Gladue sentencing …” [ 202 ] After receiving M.J.’s letter, I notified both Crown and defence counsel and arrangements were made to have M.J. brought to court on May 23, 2013.

On that date, I ordered a Gladue report, which was to be prepared by Aboriginal Legal Services of Toronto. [ 203 ] On June 7, 2013, I received a letter from Jonathon Rudin, the Program Director at Aboriginal Legal Services, indicating that a Gladue report could not be prepared for two reasons; firstly, M.J.’s Aboriginal ancestry could not be confirmed, despite an extremely thorough archival search going back 100 years; secondly, the purpose of a Gladue Report is to discuss the way in which an individual has been influenced and affected by their Aboriginal ancestry, whether by systemic factors or historical reasons.

In this case, M.J. was an adult before he learned that he might have an Aboriginal ancestry on his mother’s side. M.J. told the caseworker at Aboriginal Legal Services that in the 1990’s, “My Uncle Gord (referring to his mother’s brother), he told me, it’s from North Bay, Ontario. He told me some lake up there. I forgot all about it. When I go up there, I’m going to check it out.” His mother made no mention of having an Aboriginal ancestry until she was “up in age.” M.J. had no specific information about an Aboriginal background on his father’s side, other than his belief that they “are Native from Kingston.

I don’t know much about it.” [ 204 ] In light of Mr. Rudin’s letter, counsel for M.J. agreed that the preparation of a Gladue report could not be pursued. However, after hearing submissions from both Crown and defence counsel, I ordered a pre-sentence report, with specific instructions to the probation officer, Mr. Nikolic, who was preparing the report, to review the Aboriginal programs available to a person on a long-term supervision order who self-identifies as an Aboriginal person, even though there is no external verification of such ancestry.

M.J. was remanded to July 8, 2013, for further submissions pertaining to the pre-sentence report. When Mr. Nikolic indicated that he required further time to prepare his report, the matter was adjourned to August 23, 2013, for final submissions. [ 205 ] M.J. advised Mr. Nikolic that it was around the time that he left home that he became interested in exploring Native culture, due to an idea planted by family members claiming Native heritage. M.J.’s sister, Ms. Johnstone, told Mr. Nikolic that there may be some Native blood in their background but she had doubts in this regard.

She viewed their father’s claim that he was of Native descent with some skepticism. Ms. Johnstone believes that any Aboriginal connection, if it exists, wou

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