Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR2920 Citation: R v S.P.C. , 2018 SKCA 94 Date: 2018-12-05 Between: Her Majesty the Queen Appellant And S.P.C. Respondent Before: Ottenbreit, Whitmore and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr.

Justice Whitmore The Honourable Madam Justice Schwann On Appeal From: 2017 SKQB 24 , Saskatoon Appeal Heard: September 20, 2018 Counsel: Roger De Corby for the Appellant Patrick McDougall for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] S.P.C. pleaded guilty in Court of Queen’s Bench to eight sexual and pornography related offences. The Crown successfully applied to have him designated a dangerous offender under s. 753(1) of the Criminal Code based on the convictions for these offences and previous convictions for similar offences. That designation is not in dispute.

The sentencing judge, consequent on declaring S.P.C. a dangerous offender, imposed a sentence of eight years’ imprisonment after remand credit, a ten-year Long Term Supervision Order [LTSO], as well as ancillary orders. The Crown appeals that sentence. II. Facts and Background [ 2 ] S.P.C. has a history of sexual offending that spans nearly three decades. He was first convicted of two sexual assault offences in August 1989. The victims were a 12-year-old boy and a 7 or 8-year-old girl. S.P.C. was the children’s babysitter. The sexual assaults occurred over a prolonged period of time.

He received a sentence of one-year probation for those offences. [ 3 ] In April 2002, S.P.C. was convicted of sexual interference and sexual assaults that occurred over a period of approximately four years. The victim was his step-daughter. He began abusing her when she was 10 years old while exercising access to her after his relationship with her mother had ended. He received a total sentence of five years’ imprisonment for these offences. [ 4 ] While serving this five-year sentence, S.P.C. was assessed as a medium-low risk to sexually reoffend based on an actuarial risk assessment tool.

However, the Correctional Service Canada [CSC] staff psychologist’s clinical assessment was that he was at a high risk to reoffend sexually. While incarcerated, S.P.C. participated in three sexual offender treatment programs. After the second program, his risk was assessed at low-moderate. During his third program, he was found to be in possession of several hand drawn pornographic pictures of a girl.

A CSC staff psychologist recommended that upon release S.P.C. be continually monitored in the community. [ 5 ] S.P.C. was statutorily released into the community before his five-year sentence had expired, with a condition that he not have contact with female children under the age of 18 for the rest of the sentence. He violated that condition by contacting and spending time with his estranged spouse and young daughters.

As a result, his statutory release was revoked. [ 6 ] The predicate offences for which S.P.C. was designated a dangerous offender were committed on two victims over a three- year period beginning in January 2012, when he was 44 years old. The first victim was S.P.C.’s biological daughter. She was 11 years old when he started to sexually assault her. He took photographs of his sexual abuse of the child and forced her to watch pornography. The second victim was also his biological daughter. She was 10 years old when he started to sexually assault her. He also took pictures of her while he was sexually abusing her.

S.P.C.’s computer contained pornographic images of one of the victims as well as pornography

depicting other children. [ 7 ] S.P.C. pleaded guilty to the following eight offences under the Criminal Code : two sexual assaults ( s. 271 ), two touching a minor for a sexual purpose ( s. 151 ), possessing child pornography ( s. 163.1(4) ), making child pornography ( s. 163.1(2) ), incest with a minor ( s. 155(2) ) and failing to comply with a SOIRA condition (s. 490.031). [ 8 ] Dr. Shabehram Lohrasbe conducted a psychiatric assessment of S.P.C. pursuant to s. 752.1 of the Criminal Code . The written opinion reflecting the results of his assessment was made an exhibit in the dangerous offender proceedings. Dr.

Lohrasbe also testified at those proceedings. He found that S.P.C. did not suffer from any major mental disorder of psychotic proportions and that he did not have a mood or anxiety disorder. However, he opined that S.P.C. suffered from a personality dysfunction with aspects of a narcissistic and anti-social personality, although these aspects were not pervasive across all realms of his functioning. S.P.C.’s dysfunctional personality traits manifested themselves in his intimate and family relationships. Dr.

Lohrasbe found that, although S.P.C. accepted legal responsibility for the predicate offences, this was juxtaposed with self-deception about his moral and psychological responsibility for them. He placed partial blame for his offending on his victims. [ 9 ] Dr. Lohrasbe diagnosed S.P.C. as a pedophile whose sexual preference is for female children. He believed S.P.C.’s personality disorder increased the likelihood he would sexually reoffend. Dr.

Lohrasbe stated that despite the complexities of S.P.C.’s personality, a risk assessment was fairly obvious because his available history was reasonably detailed and instructive on risk-relevant issues. Dr. Lohrasbe addressed three kinds of risk: (

a) further possession and viewing of child pornography, (b) ‘hands-on’ or contact intra-familial sexual offences, and (

c) extra-familial sexual offending. [ 10 ] With respect to these three kinds of risk, Dr. Lohrasbe determined that because child pornography did not carry the connotations of harm that it should for S.P.C., he would be at a high risk to access and view child pornography. [ 11 ] With respect to intra-familial sexual offences, he noted that the combined forces of legal dissuasions and therapeutic interventions had not prevented reoffending and S.P.C. would remain a high risk for incestuous contact offences. [ 12 ] Dr.

Lohrasbe noted that with respect to extra-familial sexual offending the risk could neither be assumed to be high nor dismissed. He explained that the facilitation component of S.P.C.’s offending, which resided primarily in his personality, had in the past been mobilized only in circumstances when children had come under his control. It was then that his attitudes that promoted loss of self- control, combined with his primary motivation, resulted in offending. [ 13 ] Dr.

Lohrasbe determined that S.P.C.’s capacity to deceive himself was an important component of his capacity to deceive others and was a significant concern for risk management in the community. He noted that effectiveness of treatment was dependant on the motivation of the offender but opined that S.P.C. was not deeply emotionally or morally motivated to refrain from offending. He found it would be hazardous to assume therapy would eliminate his motivation for offending, which was entrenched in his pedophilic personality disorder, nor would it alter his capacity to offend in certain circumstances.

In short, although further treatment was not ruled out, Dr. Lohrasbe was of the view it could not be assumed that it would reduce S.P.C.’s risk. [ 14 ] Despite the foregoing, Dr. Lohrasbe stated at page 37 of his report: The foregoing would suggest a gloomy prognosis, with no clear path from ‘here’ (high risk as matters stand) to ‘there’ (risk levels that are manageable in the community). However, there is a more optimistic scenario, based on three considerations. [ 15 ] Dr. Lohrasbe then listed three factors that he believed likely to reduce S.P.C.’s risk to reoffend. The first was aging.

He stated robust statistical studies showed the likelihood as well as the frequency of offending would decline with age. He had no reason to believe S.P.C.’s offending would be an exception to this trend. [ 16 ] The second factor that Dr. Lohrasbe listed was that informal discussions among clinicians who treat and manage offenders indicated that the impact of going through the court process may be substantial and sustained on an offender, despite the fact the literature on self-control and the clinical experience with external motivators suggest such impact is short lived.

It was reasonable to assume that the sentencing process would enhance S.P.C.’s incentive to abstain from offending by strengthening his self-control. [ 17 ] The third and most important consideration was based on the particulars of S.P.C.’s offending, i.e., that he had in the past targeted only children in his care or children who were family members. Dr. Lohrasbe believed that as a result of this consideration it was likely that a concrete and coherent risk-management strategy could be readily put in place on S.P.C.’s reintegration into the community.

He noted this was not always the case with other offenders whose risk-relevant influences could be obscure and their patterns of offending unpredictable. Pointedly, Dr. Lohrasbe stated that while S.P.C. would likely be a high-risk offender for the foreseeable future, he did not believe that his risk would be unmanageable. [ 18 ] Dr.

Lohrasbe stated that the details of the risk-management strategy could only be determined when release was imminent because much depended on S.P.C.’s stability and progress during the intervening time, the intensity of parole supervision available, the professional resources available to him, housing, family supports and other factors. The overall strategy and the details thereof would flow from his known pattern of offending. [ 19 ] Dr. Lohrasbe then reviewed in some detail the basic elements of that strategy, including monitoring, supervision, treatment and victim safety planning.

He noted that assuming such a risk-management strategy could be put in place within the community, a lengthy follow-up was essential. He stated the longer the follow-up, the greater the possibility to effectively manage the risk in the community. [ 20 ] Dr. Lohrasbe concluded:

SUMMARY

Based on a direct examination of [S.P.C.] and a review of all available documentation, in my opinion [S.P.C.] is, in the foreseeable future: 1. At high risk for child pornography – related offenses. 2. At high risk for contact offenses with children who come within his ambit of grooming, power, and control. 3. At low risk for contact offenses beyond those who he can groom and over whom he has power and control. 4. While treatment program should be offered to him during any further period of incarceration, it cannot be assumed that treatment will be effective in lowering his risk. 5.

Aging is very likely to lower his risk. 6. The impact of current sentencing proceedings is also likely to reduce his risk. 7. Due to the nature of his offenses, risk management strategies can readily be put into place, assuming appropriate resources are available in the community where he will reside upon release. 8. If he is open, disclosive, and cooperative with those who carry the responsibility of supervising him in the community, it is feasible that the risk he poses can be managed in the community. 9.

Conversely, if there are any indications of deception or noncooperation, they should be regarded as clear indications that he may be progressing towards reoffending. 10. The longest possible period of supervision in the community would assist in managing his risk. Risk assessments alter with time and circumstances. Accordingly, repeated risk assessments in the coming years will assist in fine-tuning the most appropriate risk management strategies. III. Decision of the sentencing Judge [ 21 ] The sentencing judge reviewed ss. 753(4) and 753(4.1) of the Criminal Code .

He reviewed the positions of the Crown and S.P.C. regarding sentence. He stated: [118] I am mindful in considering the very significant evidence of Dr. Lohrasbe that there are strong concerns as to the potential for future success of S.P.C. in the community following the imposition of a determinate sentence accompanied by a long-term supervision order. Indeed, in reading Dr. Lohrasbe’s report, the bulk of the report could not reasonably be described as optimistic (in describing [S.P.C.’s] future).

However, his report, which I have earlier set forth in detail, towards its conclusion, discloses a more optimistic tenor on the critical issue of the reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public against the commission by S.P.C. of a serious personal injury offence. A significant commentary was provided by Dr. Lohrasbe in his oral evidence when cross-examined by Mr. McDougall. Mr. McDougall suggested to Dr. Lohrasbe, that with the right supports, S.P.C. could be managed in the community. Dr.

Lohrasbe, in providing a deliberate and measured response, agreed with that suggestion. [ 22 ] The sentencing judge then noted Dr. Lohrasbe agreed that S.P.C. understood his problem and this was a first step in dealing with it. He also noted that there were two lengthy periods when S.P.C. did not offend and this spoke to an ability to self-regulate. The sentencing judge noted that S.P.C. did not have a long criminal record. [ 23 ] He acknowledged that S.P.C. presented a high risk to reoffend against young girls. He noted there were no offences against adult victims.

He stated: [125] I am of the view that S.P.C. requires intensive programming to be provided to him during an appropriate period of incarceration, but I am also of the view that with such programming and with appropriate supports being put into place, that S.P.C. may satisfactorily live in and be a part of the community.

In other words, I am of the view that there is a reasonable expectation that a lesser measure than an indeterminate sentence will adequately protect the public (that public being young girls), against the commission by S.P.C. of a serious personal injury offence. [ 24 ] The sentencing judge acknowledged that the Crown submitted an indeterminate sentence was necessary and that it argued it was not feasible to put in place conditions and a structure whereby S.P.C. had no relationship with young girls and was sufficiently monitored.

However, he stated that he did not share that view: [127] I simply do not share this view and in my view, while S.P.C. presents a high risk to reoffend under an unstructured release into the community, that is not what I would at all anticipate would be the format of his release into the community under a long-term supervision order. [128] Correctional authorities are well aware of the nature of S.P.C.’s offending and the potential danger which he poses to a vulnerable group of society, and would undoubtedly direct his programming towards attempting to alleviate or minimize that risk prior to release into the community and being subject to a long-term supervision order. [ 25 ] He then concluded: [130] For the foregoing reasons, I am satisfied that there is a reasonable expectation that a lesser measure than an indefinite sentence would adequately protect the public against the commission by S.P.C. of a further serious personal injury offence.

[ 26 ] The sentencing judge imposed a total sentence of 11 years and 3 months imprisonment. After credit for time on remand, that term was eight years. He then imposed an LTSO of ten years. IV. Issues [ 27 ] The issues raised by the Crown can be restated as follows: (

a) Did the sentencing judge misinterpret ss. 753(4) and 753(4.1) of the Criminal Code and apply the wrong legal test when imposing a determinate sentence? (

b) Did the sentencing judge err by misapprehending the evidence relating to whether there was a “reasonable expectation” a lesser sentence would adequately protect the public? V. Analysis A.

Did the sentencing judge misinterpret ss. 753(4) and 753(4.1) of the Criminal Code and apply the wrong legal test when imposing a determinate sentence? [ 28 ] The Crown argues the sentencing judge was required by s. 753(4.1) to determine if there was a “reasonable expectation” that a lesser sentence would adequately protect the public but instead determined whether there was a reasonable expectation S.P.C.’s risk might be managed in the community under some form of conditional release at an unknown point in time. [ 29 ] I begin with the germane provisions of the Criminal Code .

The possible types of sentences to be imposed after an accused is found to be a dangerous offender are set forth in s. 753(4): 753

(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 of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted [ 30 ] The test to be applied by the sentencing judge to determine if a lesser sentence than an indeterminate sentence is appropriate is set forth in s. 753(4.1): 753

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced 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. [ 31 ] In R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ], Côté J., for the majority, explained how that test is to be applied: [58] Since the 2008 amendments, indeterminate detention is no longer automatic for a dangerous offender. Rather, this sentence is only one option among others available under s. 753(4).

In lieu of an indeterminate detention, a judge may impose a sentence that is more proportionate to the predicate offence for which the offender is being sentenced, whether it is imprisonment for a minimum of two years followed by long-term supervision — which amounts to a long-term offender sentence — or a sentence under the regular sentencing regime. The sentencing alternatives listed in s. 753(4) therefore encompass the entire spectrum of sentences contemplated by the Criminal Code . … [60] ...

In order to properly exercise his or her discretion under s. 753(4), the sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme. [61] ... The 2008 amendments replaced mandatory indeterminate detention with a codification of the principle that a sentencing judge must impose a sentence that is tailored to the specific offender and consistent with the principles of sentencing. When considered in its historical context, the current s. 753(4.1) confers a discretion to apply general sentencing principles more explicitly than the former scheme did.

It does so for the benefit of the offender, who cannot complain of a discretion that can only operate to his or her benefit: see Lyons , at pp. 348-49. … [65] Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the evidence adduced during the sentencing hearing.

This Court in Johnson stated that the “sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: para. 44. Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection in dealing with offenders

presenting a very high likelihood of harmful recidivism. … [68] Under s. 753(4.1), the sentencing judge is under the obligation to conduct a “thorough inquiry” into the possibility of control in the community: Johnson , at para. 50. The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender: The judge should ... take into account all the evidence available before making a determination, which will inevitably require a thorough investigation.

Once such an investigation has been conducted, it will be up to the judge to determine the sentence; there is no obligation on any of the parties to prove on any standard the adequate sentence one way or another. (Neuberger, at p. 4-4.1; see also p. 10-10.) [69] In other words, s. 753(4.1) provides guidance on how a sentencing judge can properly exercise his or her discretion in accordance with the applicable objectives and principles of sentencing.

As explained above, it is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing their discretion. Once the sentencing judge has exhausted the least coercive sentencing options to address the question of risk based on the evidence, indeterminate detention in a penitentiary is the last option. [ 32 ] With the foregoing in mind, I turn to the Crown’s argument.

There are numerous specific examples in the sentencing judge’s reasons that demonstrate he was alive to the test to be applied pursuant to ss. 753(4) and 753(4.1) and was alive to the proper application of that test. [ 33 ] Presaging some of the dicta in Boutilier , which had at the date of his decision not yet been issued, the sentencing judge stated: [115] While the stage of the sentencing process which admits of the exercise of judicial discretion has been altered from the designation stage to the stage of imposition of actual sentence, a reading of s. 753(4) provides the spectrum of possible or discretionary sentences, depending upon the unique circumstances of the offender being sentenced. [ 34 ] There is no indication the sentencing judge misstated or misapprehended the test to be applied.

He clearly identified the Crown’s position that the test was whether there was “a reasonable expectation that a lesser measure … will adequately protect the public”. In referring to Dr. Lohrasbe’s report, the sentencing judge again referred to the test noting that it disclosed a more optimistic tenor on the critical issue of the “reasonable expectation that a lesser measure … will adequately protect the public”.

Paragraphs 125 and 130 of the sentencing judge’s reasons also reference the correct test. [ 35 ] The Crown argues that the sentencing judge, even if he was alive to the proper test to be applied, nevertheless made errors in applying it. The Crown submits he focused solely on the potential for S.P.C. to be “managed” in the community as long as he was provided with the appropriate and necessary structure and support. The Crown points to the comments of the sentencing judge: [124] I take a portion of Dr.

Lohrasbe’s opinion to be that S.P.C. could be managed within the community once he has learned to manage his urges and comes to the reality that he must seek out community support if he is to be allowed to live in the community. [ 36 ] However, this reference to the management of S.P.C.’s urges and the management of his release in the community does not, in my view, reflect an error in the application of the test. I will explain. [ 37 ] I begin by noting that the Crown’s argument about the sentencing judge’s reference to the “management” of S.P.C. has several facets. I will address each in turn.

The first is that the sentencing judge, in applying the statutory test, ignored Dr. Lohrasbe’s opinion that S.P.C. may never, even with treatment, be able to satisfactorily manage his pedophilic urges. In fact, the sentencing judge was well aware of the questionable efficacy of further treatment as shown by his quote of that part of Dr.

Lohrasbe’s report stating that it would be a hazardous assumption that further treatment would reduce S.P.C.’s motivation to offend and his risk. [ 38 ] The second facet of this argument is that S.P.C.’s condition is intractable, and therefore the public, as a matter of law, would never be adequately protected by anything less than an indeterminate sentence. The Crown cites cases such as R v B.(D.V.), 2010 ONCA 291 , 254 CCC (3d) 221, R v Madden , 2014 ONCA 135 , and R v Bird , 2015 SKCA 134 , 467 Sask R 277, in support of this argument.

After a review of these cases, I am satisfied none of them state intractability necessitates an indeterminate sentence. Moreover, all of these decisions must now be read in light of Boutilier , which confirms that although intractability must be considered at the designation stage, a finding of intractability at that stage does not compel an indeterminate sentence.

On this issue, the Court in Boutilier explained: [30] The Ontario Court of Appeal in Szostak , at paras. 53-55, concluded that intractability is no longer an element of dangerousness because it is incompatible with the exercise of discretion to impose a determinate sentence at the penalty stage. The Court of Appeal considered that an offender whose conduct is intractable should rarely, if ever, be eligible to receive a lesser sentence. [31] I respectfully disagree with this conclusion. As I will discuss below, the purposes of prospective evidence at the designation and sentencing stages are different.

The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat.

Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence. [ 39 ] In short, even if S.P.C.’s pedophilia can be said to be intractable, and therefore unmanageable in that sense, this conclusion did not relieve the sentencing judge of determining if there was a reasonable expectation that a lesser sentence would adequately protect the public as required by the Criminal Code . [ 40 ] The Crown’s next argument is that the sentencing judge was wrong to focus on the “management” of the risk posed by S.P.C.

The Crown appears to suggest that doing so is incompatible with a determination of whether the public will be adequately protected. [ 41 ] Management of the risk posed by the individual is central to the application of the test set out above and to the determination of the appropriate sentence. Of necessity, this is partly an exercise of looking into the future and examining the prospective evidence as described in Boutilier (at para 31 ). [ 42 ] Justice Côté in Boutilier referred to the role of the sentencing judge as “managing” the risk or threat posed by the accused (at paras 44–45).

While the decision of the sentencing judge in the matter under appeal was issued prior to Boutilier , the language of “management” employed by him is reminiscent of Côté J.’s language. [ 43 ] Other courts have also determined that management of the risk or threat is a relevant consideration in achieving a fit sentence.

For example, Watt J.A. in R v Spilman , 2018 ONCA 551 , 362 CCC (3d) 415, focuses on “management”: [30] Section 753(4.1) provides guidance on how hearing judges can properly exercise their discretion, in accordance with the applicable objectives and principles of sentencing, to impose the appropriate sentence to manage the established threat that the offender poses to society.

The provision requires the judge to examine the evidence adduced at the hearing to determine whether there is a reasonable expectation that a lesser measure — a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order — will adequately protect the public against the risk that the offender will commit murder or a serious personal injury offence.

The hearing judge must first exhaust the less coercive sentencing options to address this risk of recidivism before imposing a sentence of indeterminate detention in a penitentiary: Boutilier , at para. 69 . [ 44 ] It was therefore essential for the sentencing judge to consider what mechanisms could be used to manage the risks posed by S.P.C.

Examination of whether the offender’s risk could be managed by some internal or external controls informs whether the risk is such that there is a reasonable expectation the public will be adequately protected by the lesser sentence. [ 45 ] Reference to management of the risk, and an analysis of how the risk might be managed, is not indicative of an error by the sentencing judge in the application of the statutory criteria or a misapplication of the test set out in s. 753(4.1). This argument fails. B.

Did the sentencing judge err by misapprehending the evidence relating to whether there was a “reasonable expectation” a lesser sentence would adequately protect the public? [ 46 ] The Crown’s submissions regarding this issue have several branches but in

summary the Crown argues there was no evidence capable of supporting the imposition of anything less than an indeterminate sentence. [ 47 ] The Crown again argues, as it did on the previous issue, that S.P.C. is a highly sexualized individual who is unable to self- regulate his urges to have sex with children and who has a significant personality disorder. Therefore he needs lifelong supervision, which would only be provided by an indeterminate sentence. The Crown argues there was no evidence to contradict this. [ 48 ] There are two problems with this argument.

First, this argument erroneously focuses on intractability rather than risk and protection of the public. As explained above, evidence of intractability does not, of necessity, mandate an indeterminate sentence ( Boutilier at paras 30–31 ). [ 49 ] The second problem is that the Crown cherry picks the evidence from Dr. Lohrasbe’s report and testimony regarding incurable pedophilia and ignores his conclusions regarding the management of the risk of S.P.C.’s pedophilia and protection of the public. There was substantial evidence before the sentencing judge on the last two matters. [ 50 ] Dr.

Lohrasbe was quite specific. It was reasonable S.P.C.’s risk, despite his intractability, might be managed so the public was adequately protected. Put another way, he said S.P.C. might never be cured of his deviancy but there was a reasonable expectation it might be controlled or managed in the community. [ 51 ] After identifying the many factors pointing to S.P.C.’s high risk to re-offend in the foreseeable future, Dr.

Lohrasbe identified three factors that, despite what might be considered a gloomy prognosis, would reduce the risk to the public and provide a foundation for an expectation the public would nevertheless be adequately protected. [ 52 ] The first was that the likelihood and frequency of sexual offending had statistically been shown to decline with age. Put another way, age would assist S.P.C. with his internal controls. Dr. Lohrasbe believed this factor would apply to S.P.C. The second was the salutary effect of the court process on S.P.C.’s awareness that his offences are serious. Dr.

Lohrasbe stated that it was reasonable to assume they would enhance his incentive to abstain from offending by strengthening his self-control. The last and most important factor was that S.P.C.’s pattern of offending, i.e., against family members unlike other offenders who pose a risk to the broader community, allowed for a concrete and coherent risk-management strategy that could readily be put in place at the time of his reintegration into the community. This was a reference to external controls. [ 53 ] Dr.

Lohrasbe concluded that, although S.P.C. would remain a high risk offender in the foreseeable future, this did not mean his risk would be unmanageable in the community. He set out, and discussed briefly, the essential elements of a strategy to manage that risk. He set out the rough contours of the kind of supervision structure that would benefit S.P.C. [ 54 ] The Crown, however, argues that this evidence did not allow the sentencing judge to conclude there was a “reasonable expectation”.

The Crown cites R v Sanderson , 2018 MBCA 63 [ Sanderson ], where the Court, on the basis of similar evidence, came to a conclusion that a lesser sentence would not protect the public. However, in Sanderson the medical witness spoke of reasonable possibility only and in cross-examination could only say there was a “potential” for there to be a reasonable expectation if a number of factors were present.

[ 55 ] In this case, the sentencing judge, who observed Dr.

Lohrasbe, indicated that he gave a deliberate and measured response when cross-examined about whether S.P.C. could be managed in the community with the right supports: Q And it would be possible then to create a process where if somebody like [S.P.C.] were incarcerated again, went through the high- intensity program, went through the low-intensity program -- or medium-intensity program, went through the maintenance program, but had Circles of Support, however put together, whether it be faith-based or however that might be done -- that somebody in his situation could be managed in the community?

A Yes. [ 56 ] This testimony, together with Dr. Lohrasbe’s written and testimonial opinion about the management of S.P.C.’s risk, was highly relevant to the sentencing judge’s analysis of whether there was a reasonable expectation the public would be adequately protected. [ 57 ] The Crown does not seriously dispute that CSC, being aware of the nature of S.P.C.’s offending and the danger he posed to young girls, is capable of providing the appropriate types of structure, support and supervision he requires while he is under sentence in the community.

The Crown acknowledges the sentencing judge had evidence of that before him. [ 58 ] The Crown, however, submits there was no evidence of the structure, support and supervision the CSC would provide to S.P.C. after the expiry of his sentence. This argument is a variation of the Crown’s intractability submission, i.e., that S.P.C.’s deviancy is intractable and will still exist when he ceases to be supervised. It again ignores the issue of risk. Dr. Lohrasbe opined it was reasonable to expect that as S.P.C. aged, the likelihood and frequency of offending would be reduced.

It was obviously not lost on the sentencing judge that by the time his sentence was completed, S.P.C. would be nearly 70 years old. On the basis of this evidence, the sentencing judge was entitled to focus on the services and supervision available to S.P.C. during the LTSO. [ 59 ] In short, there was evidence the risk posed by S.P.C. to the community would, as a result of aging and with the right structure and monitoring, be reduced to the point where it was manageable.

This was evidence on which the sentencing judge could reasonably conclude that there was a reasonable expectation the public would be adequately protected by a lesser sentence. [ 60 ] The Crown next argues that the sentencing judge erred by focusing on irrelevant matters. The Crown cites three of them. The first was comparing and contrasting the facts in S.P.C.’s case with facts of other cases. The sentencing judge made a passing reference to the fact that S.P.C.’s criminal record was less than some others that faced designation as a dangerous offender and an indeterminate sentence.

As well, he referred to specific cases at the designation stage of the proceedings. However, he is entitled to make these comments as part of his analysis of the risk posed by S.P.C. and protection of the public. I do not take any of these references to mean that the sentencing judge ignored his duty to address the case on the basis of the unique circumstances of S.P.C. as submitted by the Crown. [ 61 ] The second was the sentencing judge’s reference to Dr. Lohrasbe agreeing that S.P.C. “understood his problem” and that was a first step in dealing with it. Likewise, there is no error in this.

It is disingenuous to suggest that an offender’s recognition that he has a problem is irrelevant to the analysis. There is no indication the sentencing judge presumed that such an understanding implied S.P.C. would be cured of his pedophilia. Moreover, even if S.P.C.’s insight into his problems was limited, that, in itself, does not mandate an indeterminate sentence ( R v Malakpour , 2018 BCCA 254 at paras 102–107 , 110–112). [ 62 ] The third alleged error was the sentencing judge’s reference to further sexual offender treatment and his use of this to support the imposition of a lesser sentence.

There is no merit in this argument. Programming is always a relevant consideration to the issue of risk reduction. [ 63 ] The sentencing judge had before him Dr. Lohrasbe’s opinion that programming would not, in S.P.C.’s case, reduce his motivation to reoffend, although that did not mean programming should not be offered to him. However, as noted above, the issue is not necessarily intractability but rather protection of the public. Dr.

Lohrasbe testified that programming would assist S.P.C. with a greater intellectual understanding of the damage he had done and the aversive effects of incarceration may heighten his awareness of what he has to lose. The sentencing judge quite appropriately found that S.P.C. would benefit from programming while incarcerated and, with the right supports in the community thereafter, there was a reasonable expectation the public, in this case young girls, would be adequately protected. I see no error in this. VI. Conclusion [ 64 ] The appeal of the Crown is dismissed. “Ottenbreit J.A.” Ottenbreit J.A.

I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Schwann J.A.” Schwann J.A.