C.A.C. No. 104252
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. J.H.B., 1995 NSCA 135
Chipman, Pugsley, Flinn, JJ.A.
BETWEEN:
J. H. B. ) Peter D. Crowther
) for the Appellant
Appellant )
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- and - )
) Denise C. Smith
) for the Respondent
HER MAJESTY THE QUEEN )
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Respondent ) Appeal Heard:
) May 23, 1995
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) Judgment Delivered:
) September 5, 1995
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
THE COURT: Appeal dismissed per reasons for judgment of Flinn, J.A.; Chipman and Pugsley, JJ.A. concurring.
FLINN, J.A.:
Background
The appellant is a 32 year old heterosexual paedophile. He pleaded guilty to the indictable offence of sexual assault (the predicate offence). The victim of the sexual assault was an 11 year old female relative of the appellant (the victim).
Prior to the imposition of sentence, the Crown made application to have the appellant declared a dangerous offender pursuant to s. 753(b) of the Criminal Code of Canada, R.S.C. 1985, Chap. C-46 (the Code). After hearing evidence with respect to the application, the trial judge filed a written decision in which he found the appellant to be a dangerous offender, and sentenced the appellant to an indeterminate period of detention in a penitentiary.
The appellant appeals both the finding that he is a dangerous offender and the sentence of indeterminate detention. The relief which he requests is that the dangerous offender finding be quashed, and that a determinate sentence be imposed for the predicate offence. Alternatively, the sentence of indeterminate detention should be quashed and, in its place, a determinate sentence for the predicate offence should be imposed. In the further alternative the appellant requests a new hearing.
Right of Appeal
It is necessary to examine the appeal provisions of the Code with respect to dangerous offender applications. The relevant provisions of s. 759 of the Code are as follows:
"759. (1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may
appeal to the court of appeal against that sentence on any ground of law or fact or mixed law and fact.
(3) On an appeal against a sentence of detention in a penitentiary for an indeterminate period, the court of appeal may
(a) quash the sentence and impose any sentence that might have been imposed in respect of the offence for which the appellant was convicted, or order a new hearing; or
(b) dismiss the appeal."
Therefore, as to the sentence of indeterminate detention, the appellant has an appeal as of right. He does not require leave.
However, on the hearing of the appeal, this Court's power is limited to quashing the sentence and imposing an appropriate sentence for the predicate offence, ordering a new hearing or dismissing the appeal.
There is no express right to appeal the finding of the trial judge that the appellant is a dangerous offender, nor does this Court have the power to quash that finding. R. v. Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.) is regularly cited to define the role of the Court of Appeal in this type of case. As LaCourciere J.A. said at p. 341:
"The Court of Appeal has express power to quash the sentence of indeterminate detention but not the finding of dangerous offender . . . . . However, in deciding whether to quash the sentence, the court must necessarily consider whether the finding of dangerous offender is justified in fact and law."
See also R. v. Lyons (1985), 15 C.C.C. (3d) 129 (N.S.C.A.) per Macdonald J.A. at p. 140.
Since the imposition of such a sentence - to a penitentiary for an indeterminate period - is so inextricably bound up with the finding of dangerous offender, this Court could not adequately review that sentence, which it must do in this appeal, without reviewing the foundation upon which it is imposed, i.e., the finding of dangerous offender. Therefore, while this Court does not have the power to quash the finding of dangerous offender, that finding is certainly subject to review on this appeal. If that review determines that the finding of dangerous offender is not justified, this Court can quash the sentence of indeterminate detention and impose a sentence for the predicate offence, or order a new hearing.
I propose then to review the evidence upon which the finding of dangerous offender was made in this case, as well as the finding itself, before reviewing the sentence of indeterminate detention.
I point out, here, that the appellant did not testify at the hearing of the application which is the subject of this appeal; and he offered no evidence in opposition to the application with the exception of the evidence of a psychiatrist, Dr. Taylar, which will be referred to later. Further, when the charges with respect to the predicate offence were laid, the appellant was living in M.. He, voluntarily, surrendered himself to the authorities in Nova Scotia and, as previously indicated, pleaded guilty to that offence.
Facts
The following is a chronological review of the evidence which was before the trial judge.
A 25 year old female (Ms. F) testified concerning a relationship which she had with the appellant between the years 1980-1984. Shortly after the relationship between the appellant and Ms. F began it became a sexual relationship. Ms. F was 12 years of age at the time. The appellant was 19 years of age. They had sexual relationships at least every weekend and sometimes during the week. This sexual relationship became violent. They watched pornographic movies, which included anal sex. Ms. F testified that on occasions she complained about anal sex between her and the appellant because it hurt her. On one occasion he put a chisel inside her rectum in order to enlarge it, and also used a hair brush for the same purpose. She testified that she did not want to have anal sex but the appellant held her down. She broke free and ran into the bathroom. The appellant turned out the lights and was screaming at her "come out you can't go anywhere". She was fearful because she knew he kept a hand gun in a hiding spot above his bedroom door.
She further testified that "the hard core pornographic" videos which the appellant showed to her included not only oral and anal sex but also bondage. On occasions the appellant would tie her hands to the bedposts while engaging in sexual activity. While Ms. F testified that she found this uncomfortable, and she did not like it, she did not object to the appellant tying her hands to the bed posts nor did she testify as to any particular physical harm that was caused to her.
She testified that the appellant also tried to convince her to have her girlfriends, all in Grade 8 and about 13 years of age, to join the two and have sex together. The appellant also wanted to have sex with Ms. F's sister who was 15 years of age at the time.
Ms. F testified that the appellant got her into "acid" (L.S.D.) and that they always smoked drugs after which they would have sex.
She also testified that she decided to break off this relationship which the appellant did not want to do. She testified as to one incident during this breaking off period when the appellant came running up behind her, grabbed her and dragged her to the roadside. The appellant had a large hunting knife and drove it into a text book which she was carrying at the time. The appellant was very upset and she tried to keep him calm rather than to run away from the scene.
Ms F resides in T. She testified that after learning of the hearing of this application, from members of her family, she decided, on her own, to call the Crown Attorneys' Office in Nova Scotia She agreed to travel to Nova Scotia and testify. She testified that she decided:
" . . .that he can't do this to any other little girls and he hurt me so bad and messed me up so much that I just don't think it should happen to anybody else."
She testified that because of what the appellant did to her it has taken her a long time to be assertive and outgoing. She has fear of the dark and has nightmares as a result of her involvement with the appellant.
The victim of the predicate offence gave a statement to the R.C.M.P. which was videotaped and introduced into evidence at the hearing by consent. At the time of the statement the victim was 11 years of age. She was a relative of the appellant. The victim stated that in September of 1988, when she was 6 years of age, the appellant began showing pornographic movies to her while they were playing monopoly together. She said the movies were usually men and women "making out" with their clothes off. She said the women would be "licking the man's penis", and "he would get me to watch it". This activity ceased in October of 1988 after the victim told her mother about it.
In 1989 the appellant consulted Dr. Larry Buffett, a psychiatrist at the Dartmouth Mental Health Centre for professional assistance with "problems of a sexual nature" and for drug abuse. There was a further consultation in January 1990. On November 1, 1990, the appellant pleaded guilty to an offence contrary to s. 372(2) of the Code, having made three sexually explicit telephone calls to a 6 year old female in Dartmouth. Section 372(2) provides as follows:
"372(2). Every one who, with intent to alarm or annoy any person, makes any indecent telephone call to that person is guilty of an offence punishable on summary conviction."
A Statement of Facts with respect to this incident was tendered in evidence at the hearing which is the subject of this appeal. That Statement of Facts discloses, among other things, the following circumstances surrounding this charge. The appellant admitted that he got high smoking hash, and made a random telephone call. When a young girl answered he had a "lewd and disgusting conversation with her"; that he talked to her at least one more time, and that he had made similar calls, to other young girls, in the past. In these telephone conversations the appellant would tell the young female child that another female would "spread her legs open so he can lick her parts" that another girl would do the same thing and then "they each take turns licking him like a popsicle". He told her as well that he was "going to put his finger in her private parts". The appellant admitted having a problem in this regard for which he had consulted a psychiatrist. He stopped seeing the psychiatrist because of heavy drug use. He intended to start seeing the psychiatrist again and to stop using drugs. The appellant's sentence was suspended. He was placed on three years probation with requirements that he undergo treatment for his psychological condition as well as for his drug and alcohol problems.
A further Statement of Facts concerning a subsequent offence with respect to indecent telephone calls was also tendered in evidence. That Statement of Facts discloses, among other things, the following: On November 7th, 1990, within a week of the appellant having been placed on probation, the R.C.M.P. arranged to place a recording device on the appellant's telephone. The appellant was a suspect in an investigation which the Lower Sackville Detachment of the R.C.M.P. had been conducting since October, 1990. The R.C.M.P. were receiving complaints of obscene and harassing telephone calls being placed to young girls between the ages of 4 and 12 years. The caller would talk about babysitting the complainant's friends or about giving the girls baths or licking their "birdies". Between November 7th and November 26th, 1990, while the appellant was on probation for his previous offence, he made a total of 1962 telephone calls to female children between the ages of 4 and 12, most of which had this sexually explicit content. These calls had generated great concern in the community.
On December 10, 1990, the appellant pleaded guilty to these further charges under s. 372(2) of the Code with respect to four specific indecent telephone calls. He also pleaded guilty to being in breach of his probation and being in possession of a restricted firearm.
On January 20th, 1991, the appellant was sentenced to one year imprisonment to be followed by three years probation with conditions that he report to a probation officer, partake in substance abuse and psychiatric counselling, and abstain absolutely from alcohol and drugs. In passing sentence the trial judge noted the "utterly abhorrent nature" of the telephone calls. He noted that a year earlier the appellant had been put on probation for the same kind of offence. He noted, according to the psychiatric report which had been filed, that the appellant was "by no means in control of himself," and that he was "not a short term prospect for change." In addition he found it "hardly insignificant" that someone involved in activities such as these indecent telephone calls to young girls, would also be in possession of a dangerous weapon. The firearm was later forfeited following a hearing.
On November 27th, 1991, following early parole from prison, and while in counselling, the appellant made a videotape of himself. This videotape was seized by the R.C.M.P. pursuant to a search warrant with respect to the appellant's premises. The videotape was tendered in evidence by Constable Cutler of the R.C.M.P. The videotape showed the appellant masturbating to the point of ejaculation. Just prior to ejaculation the appellant is shown, in the video, picking up a photograph of the victim and ejaculating on the photograph. The appellant later showed this videotape to the victim, according to the victim's statement.
In June 1992 the appellant had further contact with the victim, who was 10 years of age at this time. The victim indicated in her statement that the appellant showed her pornographic videos and described sexual acts to her. He also masturbated in her presence to the point of ejaculation. The victim described how the appellant told her what the man and woman were doing in the video was called "69". She described "69" as meaning that the man would be licking between the woman's legs while at the same time the woman would be licking the man's penis. She also stated that the appellant would get out his penis and start rubbing it. She said something white would come out of it. She did not know what the white stuff was called.
The victim stated that one month later, in July 1992, the appellant was playing a card game with her. He made a bet with her that if she won the card game he would give her his art table. If, on the other hand, he won the game, she would still get the art table but that he would get to "lick between my legs". The appellant won the card game. The appellant then took the victim out into the woods, on the pretext of getting a tree branch for his pet lizard, took her pants off and performed cunnilingus on her. Following this, he masturbated in the victim's presence and ejaculated on her face. In the victim's words "he squirted white stuff on my face". The appellant told the victim that this is "our little secret - your mother won't understand". He made the victim feel his penis.
The victim also stated that during the summer of 1992 the appellant said to her "if I could bring my friends over to the house so that he could lick between their legs he would give me a cartridge for my nintendo video game".
The victim described an incident, in December, 1992, in the appellant's bedroom. The appellant took the victim's pants off and performed cunnilingus on her. This incident was interrupted by the appellant's brother who came to the appellant's room to retrieve an article. After the appellant's brother left the room the cunnilingus continued. Following the cunnilingus the appellant masturbated in the victim's presence and ejaculated on her back. Again the appellant made the victim feel his penis.
The victim's statement continues that in June 1993 the appellant asked her to go into the woods with him. She refused. She said she was trying to avoid him. On June 14th, 1993, the victim was babysitting a nephew when the appellant arrived at the home on the pretext of having to retrieve an article. The appellant told the victim that she "owed him five minutes" and pushed her into the bathroom. The victim started screaming. The appellant left the house. Following this incident the victim told her mother about what had been going on between her and the appellant. The R.C.M.P. were called, and on the next day, June 15th, 1993, the victim gave her videotaped statement.
On June 15th, 1993, a search warrant was executed at the appellant's home in Beaverbank, Nova Scotia. From the appellant's bedroom the police seized pornographic videos and magazines, the videotape which the appellant made of himself masturbating, assorted drug paraphernalia and personal diaries of the appellant.
The two R.C.M.P. officers who were involved in the execution of the search warrant, Constable James McGibbon and Constable Laura Cutler, testified with respect to the materials seized in the search warrant; and, through them, all of the pornographic material and the appellant's personal diaries were tendered as exhibits.
The personal diaries of the appellant comprise approximately 500 pages of handwritten notes and drawings prepared by the appellant between the years 1981 and 1991. The diaries are replete with references to sexual conquests, sexual conduct and sexual fantasies; firearms and weapons, and drug use. The appellant in one of his notes dated September 26th, 1986, described those notes as:
"..... just the innermost demented scribblings of a would-be maniac, homicidal, suicidal or psychotic, I'm not sure but I'm definitely not normal."
There are two references, in these notes, to paedophilia both of which were written in 1990. On February 2nd, 1990, the appellant wrote in his diary:
".....I'm seeing a psychiatrist right now but he doesn't intend to deal with me unless I'm going to be clean. It's going to be challenging but I know I can do it. I must because as I know dope smoking is not my biggest problem. Self-hatred is my greatest problem. Self-hatred induced by feeling impotent against the affliction I suffer from. It's called paedophilia. It means I'm sexually attracted to little girls. It's not as easy to accept, let alone admit to another living soul, but I've done that now. I've taken the first step. I've confronted it now."
The appellant wrote further in his diary on October 10th, 1990:
"It's been a while. Ah, well it may be a lot longer soon. I don't know. I'm so scared, scared to accept the responsibility for something I did but something I cannot really control. I'm a monster, no fangs, no excessive hair, just a real bad desire to deflower little, little girls."
The trial judge also heard testimony from Constable Gordon Prichard of the R.C.M.P. who had investigated an earlier series of complaints with respect to indecent telephone calls in 1988.
Psychiatric Evidence
On the hearing of a dangerous offender application, it is mandatory, under s. 755 of the Code, that the court hear evidence given by at least two psychiatrists, one nominated by the Crown and one nominated by the offender. In addition, all other evidence which the court considers relevant is admissible including the evidence of any psychologist or criminologist.
Dr. Robert Konopasky and Dr. Syed Akhtar, both psychiatrists, and Mr. Steven Cann, a Clinical Psychologist, testified on behalf of the Crown at the hearing of the application. Dr. Charles E. Taylar, a psychiatrist, testified on behalf of the appellant.
The following is a summary of their testimony.
Doctor Konopasky was qualified an expert in the area of assessment, treatment and prognosis of sexual deviance and individuals with personality disorders. He holds a Ph. D. in Clinical Social Personality Psychology. He founded and operates the Centre of Psychological Services Limited in Halifax, and has recently developed the Nova Scotia Sexual Behaviour Clinic where specialized services are offered in the assessment and treatment of sexual offenders or people with sexual difficulty.
Doctor Konopasky prepared three separate reports with respect to the appellant on January 22nd, 1991, August 6th, 1991 and September 6th, 1991. He first saw the accused in January of 1991 at the Halifax County Correctional Centre in relation to charges of having made obscene telephone calls. He subsequently prepared two further reports for Parole Services. While Dr. Konopasky had not personally interviewed the appellant since 1991, he reviewed his 1991 reports, read the appellant's diaries, was present in court and heard the testimony of Ms. F, viewed the videotaped statement of the victim, and read reports and transcripts provided to him pertaining to previous court proceedings.
Doctor Konopasky diagnosed the appellant as suffering from a narcissistic personality disorder with some display of anti social personality characteristics. He described someone who is narcissistic as having a lack of empathy for other people, a grandiose sense of self importance, a lack of responsibility taken for oneself or others and the use of other people for one's own pleasure with little regard paid to the pain or discomfort caused them. He testified that the appellant has, and does show, paedophilia, that he has shown this for a very long period of time, and that the pattern is pronounced. This was a deep concern to Dr. Konopasky because it was clear to him that as a matter of fact the appellant has not been able to control his sexual urges in the past, and Dr. Konopasky saw no evidence to indicate that the appellant will be able to control those particular sexual urges in the future.
Doctor Konopasky was also concerned about the appellant's drug abuse. The appellant's diaries made it clear, as did his psychological testing, that the appellant has abused alcohol and drugs for a very long period of time.
He described the appellant's problem as a combination of three characteristics; a well rehearsed pattern of sexual activity with children, the abuse of alcohol and drugs which makes it more difficult to curb his behaviour, and an inclination towards self indulgence. That combination, according to Dr. Konopasky, makes it very unlikely that a change could be effected in the appellant, in a community based program.
Doctor Konopasky saw no reason to be optimistic at all with respect to the possibility of the appellant being treated for his condition. He testified that the appellant would have to abstain from the use of alcohol and drugs, that he would have to be able to enjoy and restrict his sexual activities to adult females and be satisfied with this. He testified that the appellant's narcissistic personality disorder makes these changes very difficult. He testified that it would require a change to the appellant's basic personality pattern in order to deny himself or sacrifice certain pleasures in order to spare someone else.
As to whether or not the appellant's failure to control his sexual impulses caused injury, pain or other evil to other persons Dr. Konopasky testified as follows:
" I believe that the kind of sexual activity in which he has engaged has caused and inflicted psychological damage on the victims of his sexual activity, and I think the professional literature is very clear that the kind of damage inflicted normally consist of certainly depression, anxiety, fear. I would also indicate that such assaults very often result in sexualized behaviour on the part of the victim, promiscuity on the part of the victim and increases the likelihood of prostitution on the part of the victim, and certainly the abuse of substances. I would characterize those as causing evil to the individual." {Emphasis added}
Dr. Konopasky had, in fact, predicted in 1991 that the appellant would re-offend. In the report which he wrote on January 22nd, 1991, he concluded by saying that there is "good reason to believe (the appellant) remains a risk to the public." Further in a report which he wrote on August 6th, 1991, he stated in conclusion "As it stands it appears that (the appellant) is a high risk to re-offend....".
Dr. Akhtar is a psychiatrist practicing in Dartmouth, Nova Scotia and at the Nova Scotia Hospital and was qualified as a forensic psychiatrist in relation to the diagnosis, treatment and prognosis of sexual deviance.
Dr. Akhtar interviewed the appellant on two occasions in early January 1994 at the Halifax County Correctional Centre. He had reviewed all of the documentation which had been placed before the court on the dangerous offender application. He attended in court and heard the testimony of Ms. F. He also viewed the videotaped statement of the victim.
Doctor Akhtar testified that the appellant's attitude towards the predicate offence was not a forthright one. Further, the appellant considered that while he may have had a sexual problem in the past, he did not have one at the present.
Doctor Akhtar was also of the opinion that the appellant suffers from paedophilia, has a personality disorder of the anti social and narcissistic type and suffers from severe drug and alcohol abuse. Dr. Akhtar was also of the opinion that the evidence showed a progression in the appellant's behaviour from anonymous sexual offences such as the obscene telephone calls, to a contact type of sexual offence.
He testified that, from the record, it was obvious that the appellant could not control his sexual impulses. Dr. Akhtar also testified that it was his opinion that the appellant has a high potential for continuing to commit sexual offences in the future. He came to this conclusion following an analysis of the appellant's abnormal sexual fantasies, and his lack of control over those fantasies. Dr. Akhtar referred to the strong sexual impulses of the appellant as evidenced by the frequency of his obscene telephone calls as well as the reference in the appellant's own diary to "I masturbate too much"; his concern with respect to the escalation of those offences from anonymous sexual offences to contact type of sexual offences; his pre-occupation with pornographic material and his "obsession with a variety of sexual activity". Dr. Akhtar testified that experimentation in sexual activity may not be of serious significance in an individual who engages in that once in a while as a variation of his normal sexual routine; however, in the appellant Dr. Akhtar found someone who has otherwise shown a loss of control of his sexual impulses to a point where it was of serious import to him.
With respect to the appellant's lack of control Dr. Akhtar referred to the appellant's dependence on alcohol and drugs. He referred to the appellant's history of non sexual criminal offences which indicated "a propensity to relinquish pro social controls", to not restrain his impulses, and to not abide by rules of society. Doctor Akhtar also pointed to the appellant's poor response to previous legal sanctions; referring to the commission of other offences while on probation. He testified that somebody who does not respond to previous legal sanctions is not likely to control himself.
As to the likelihood of the appellant causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses, Dr. Akhtar testified that the only question is the nature and quality of the harm and the magnitude of the harm. He testified that paedophiliac offences are very serious even if they do not result in physical harm to the victim. In his testimony he described the harm which the appellant is likely to cause in terms of anxiety, depression, sexual disfunction and multipersonality disorders.
As to the possibilities for treating the appellant Dr. Akhtar testified that the appellant has shown very little motivation in the past to respond to treatment. The appellant has not taken concrete action that was prescribed for him in the past to overcome his problem. He testified that the real evidence certainly does not inspire his confidence that the appellant is going to engage in serious treatment efforts in the future.
Mr. Steven Cann has a Master's Degree in Applied Clinical Psychology. He is a part-time instructor in the Department of Psychology at St. Mary's University and works with Dr. Konopasky at the Centre for Psychological Services in Halifax. He was qualified to give evidence with respect to the assessment, treatment and prognosis of sexual deviance in individuals with personality disorders.
Mr. Cann first saw the appellant in July and August of 1991 at the request of Dr. Konopasky. Mr. Cann embarked upon a course of treatment for the appellant during 1991 and 1992 and saw him a total of nine times. He saw the appellant again in January 1994 at the Halifax County Correctional Centre. He was present in court and heard the testimony of Ms. F. He also viewed the videotaped statement of the victim, and, as well, reviewed the appellant's diaries.
Mr. Cann testified that when he saw the appellant in 1991 he considered him to be a risk and attempted to reduce the risk through treatment. By November of 1992 the appellant had returned to his old lifestyle. He was not making any progress but was actually regressing at which time Mr. Cann discontinued sessions with him.
After seeing the appellant again in January of 1994 he testified concerning how difficult it would be for the appellant to control his sexual impulses without extensive and effective treatment. He said that there was no such thing as a cure, per se, for persons showing paedophilia. He said it would be a long term process for the appellant to learn to control his behaviour by finding ways to cope with his primary sexual attraction (young females), and settle for second best which, in the appellant's case, was adult females.
He testified that the appellant does not have true empathy for others. The appellant, in his opinion, does not understand or feel what the other individual feels as a result of the appellant's behaviour. He testified that drugs could play a part in the appellant's treatment, but only to reduce drive. The drugs would only be a short term solution, while the appellant established the other parts of his intellectual or cognitive control. He testified that the drugs themselves will not change the appellant's orientation towards female children.
Doctor Charles E. Taylar gave evidence on behalf of the appellant. Dr. Taylar is a practicing psychiatrist in Halifax and was qualified to give opinion evidence in the field of forensic psychiatry.
Doctor Taylar saw the appellant on one occasion for approximately two hours at the Halifax County Correction Centre. The appellant was not a patient of Dr. Taylar and was seen by Dr. Taylar solely for the purpose of the dangerous offender application. He testified on the basis of information given to him by the appellant, that the appellant's actions with the victim coincided with periods of heavy drug abuse. Dr. Taylar was impressed with information given to him by the appellant that, in M. prior to his arrest, the appellant had obtained employment, he had enrolled himself in a course and had joined Narcotics Anonymous. Further, that during the appellant's stay in M., he was restricting his use of drugs "to just I think a couple of occasions". Dr. Taylar further testified that he got the impression that the appellant had been making an effort with some success in changing his habits. Dr. Taylar agreed that the appellant was a paedophile with anti social personality traits. He testified, however, that the prognosis for treatment with "intra familial" cases is better than with general paedophilia. He said there was less recidivism when the victim is a family member than there is in a general paedophile who picks his victims at random.
As to the appellant's ability to control his sexual impulses, Dr. Taylar testified that:
"...There have been ... there has been only one or possibly two known victims, so can he control his impulses, he didn't then with those particular victims, but, when you consider the number of potential victims, the number of possible victims, yes, perhaps he did control his impulses."
Dr. Taylar also testified that it was a "positive development" that the appellant voluntarily returned to Nova Scotia, surrendered himself to the authorities and pleaded guilty to the predicate offence.
On cross-examination Dr. Taylar admitted that he relied on what the appellant told him in forming his opinions, and made no attempt to verify many of the facts which he relied upon. Unlike Dr. Konopasky and Dr. Akhtar, Dr. Taylar did not hear the testimony of Ms. F and was not aware of the allegations she had made. Dr. Taylar did not review the appellant's diaries in detail nor did he read the transcripts of previous court proceedings involving the appellant.
While Dr. Taylar was optimistic concerning the appellant's prognosis, with treatment, he acknowledged that the appellant's paedophilia heightened the possibility that he would re-offend. Further, that if the appellant re-offended, Dr. Taylar agreed that harm would result to his victim.
The Finding of Dangerous Offender
The trial judge accepted the videotaped statement of the victim of the predicate offence and the testimony of Ms. F. Following a careful, and exhaustive, consideration of the evidence and the authorities, the trial judge decided that the appellant was a dangerous offender within the meaning of s. 753(b) of the Code. Section 753(b) of the Code provides as follows:
"753. Where, on an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he was been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses,
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted."
The following is a summary of the requirements of s. 753(b):
It must be established to the satisfaction of the Court:
1. That the offender has been convicted of a "serious personal injury offence" as defined in s. 752(b) of the Code.
2. That the offender, by his conduct in any sexual matter, has shown:
(a) a failure to control his sexual impulses; and
(b) a likelihood of his causing injury, pain or other evil to other persons through his failure in the future to control his sexual impulses.
Establishing these requirements to the satisfaction of the court means by proof beyond a reasonable doubt. (R. v. Jackson (1981), 61 C.C.C. (2d) 540 (N.S.C.A.))
It is acknowledged, by counsel for the appellant, that the appellant has been convicted of a "serious personal injury offence" as defined by s. 752(b) of the Code.
Grounds of Appeal
Counsel for the appellant challenges the trial judge's finding that the appellant is a dangerous offender, and advances three grounds of appeal stating that the trial judge erred:
1. In the exercise of his discretion to declare the appellant a dangerous offender,
(a) in determining that the appellant was unable to control his sexual impulses and that in the future he would be unable to control these sexual impulses; and
(b) in determining that the Crown had proved beyond a reasonable doubt that psychological injury or pain or some other evil would be caused by future likelihood of the appellant being unable to control his sexual impulses.
2. In allowing evidence to be called which was not relevant to an application pursuant to s. 753(b) of the Code;
3. By failing to give appropriate consideration to the psychiatrist nominated by the appellant.
The first and third grounds of appeal both involve an analysis of the psychiatric evidence which was before the trial judge, and I will therefore consider both of those grounds together.
1(a) failure to control sexual impulses
Counsel for the appellant argues that there was evidence which showed that the appellant did, in fact, control his sexual impulses. He points to the fact that the indecent telephone calls stopped in 1990. He says that notwithstanding the appellant's regular contact with the victim, the evidence showed only two occasions of actual sexual contact with her. He points to Dr. Taylar's testimony that when one compares the number of potential victims of the appellant with the number of actual victims, that shows "perhaps he did control his impulses".
Let me first deal with the suggestion, by counsel for the appellant, that the trial judge has a discretion in determining whether or not the appellant is a dangerous offender. The trial judge has no such discretion, nor did the trial judge in this case consider that he was exercising any discretion in making this finding that the appellant is a dangerous offender. Once the statutory criteria, set out in s. 753(b) of the Code, have been established, the trial judge has no choice but to declare the appellant a dangerous offender. (R. v. Moore (1985), 16 C.C.C. (3d) 328 (Ont. C.A.); R. v. Carleton (1983), 69 C.C.C. (2d) 1 (Alberta C.A.)). It is not a matter within the trial judge's discretion as is his consideration of whether or not to impose a sentence of indeterminate detention once he has made the dangerous offender determination.
The trial judge, on the basis of all of the evidence, concluded:
"The evidence of [the victim, and Ms. F], the obscene phone calls the accused made to children, his extensive diaries and the masturbation film satisfy me that the predicate offence is not one of isolated occurrence but part of a pattern of behaviour indicating a failure to control his sexual impulses......The evidence satisfies me beyond a reasonable doubt that, for many years, Mr. B. has shown a failure to control his sexual impulses."
I have considered the submissions of counsel for the appellant in this regard in light of the following evidence which was not contradicted and which was accepted by the trial judge:
"1. After the appellant was charged with the offence relating to the obscene telephone calls in Dartmouth, he continued making such calls to young female children in the Sackville area.
2. Within days of pleading guilty with respect to the obscene telephone calls in Dartmouth (for which the appellant was put on probation and required to take counselling) he started a process which resulted in approximately 2000 obscene telephone calls being made to young females in the Sackville area within a three week period. These obscene telephone calls stopped because the appellant pleaded guilty to the charges with respect to the Sackville telephone calls and was incarcerated.
3. After the appellant was released from jail, on early parole (on probation and in treatment), and while he did not, according to the evidence, repeat his obscene telephone calls, he commenced the process of preying on the 11 year old victim; by preparing a videotape of himself masturbating on her photograph, showing that videotape to her, performing sexual acts on her, attempting to involve her friends in sexual activity, and intimidating her."
All of these facts, his past conduct with Ms F, his pre-occupation with sexual matters as evidenced by his diary notes (including the admission of his paedophilia) and the opinions of Dr. Akhtar, Dr. Konopasky and Mr. Cann, with which the trial judge agreed, led the trial judge to the inescapable conclusion that the appellant, by his conduct in sexual matters, has shown a failure to control his sexual impulses. That conclusion is fully supported by the evidence.
As to the appellant's ability to control his sexual impulses in the future, the trial judge considered the psychiatric evidence to be of particular relevance. He said:
"Mr. B.'s past and present conduct, together with the opinion evidence of Drs. Konopasky and Akhtar, satisfied me beyond a reasonable doubt that there is a likelihood that Mr. B. will fail to control his sexual impulses in the future."
It was clear to Dr. Konopasky that the appellant has not been able to control his sexual urges in the past. Given the appellant's longstanding paedophilia, his narcissism and his drug and alcohol abuse, Dr. Konopasky saw no evidence to indicate that he would be able to control those impulses in the future. For the same reasons, Dr. Akhtar concluded that the appellant has a "high potential" for continuing to commit sexual offences in the future.
There is no doubt that the trial judge is entitled to rely on psychiatric evidence to come to this conclusion. As Martin J.A. said in R. v. Sullivan (1988), 37 C.C.C. (3d) 143 (Ont. C.A.) at p. 157:
"To determine the second issue, whether the appellant in the future was likely to similarly fail to control his sexual impulses, the trial judge relied heavily on the psychiatric evidence. In my view, the psychiatric evidence is of particular relevance to this issue. The psychiatric evidence indicates that the appellant suffers from an ongoing personality disorder, that he has low impulse controls, and that his conscience is defective in regulating his sexual behaviour. In my opinion, the trial judge was entitled to rely on the psychiatric evidence against the background of the appellant's sexual offences on this issue. It warranted her conclusion that the appellant in the future is likely to similarly fail to control his sexual impulses."
Further, in R. v. Carleton (1983), 69 C.C.C. (2d) 1 (Alta C.A. appeal dismissed without reasons [1983] 6 C.C.C. (3d) 480 (S.C.C.)), McGillivray C.J. said at p. 8:
"...the Criminal Code requires a court to have the benefit of
psychiatric evidence before making a determination of whether a man is a dangerous offender, and before determining what is the appropriate sentence. That psychiatric evidence may bear on whether the nature of the past sexual conduct may give rise to the likelihood of the offender causing injury in the future. It should be quite plain to a judge that if a man has been convicted of rape on five occasions that that conduct clearly shows a likelihood of injury to others. Yet, if the offences consisted of, say, kissing, pinching or fondling, psychiatric evidence might be valuable in enabling a judge to determine whether this conduct shows a likelihood of the offender causing injury, pain or other evil to others through his failure in the future to control his sexual impulses."
The trial judge obviously preferred the opinion evidence of Drs. Konopasky and Akhtar over the opinion evidence of Dr. Taylar. He said in his decision:
"I think it should be emphasized that Dr. Taylar did not avail himself of nor consider much of the evidence put before the court in this matter. It appears that Dr. Taylar based his expert opinion on second-hand evidence, particularly as it related to what the accused did in M.. While his opinion was admissible to show the information on which the expert opinion was based, the facts in support of the opinion were not proved in evidence and little weight should be given to Dr. Taylar's opinion based upon these unproven statements by Mr. B. to him.
For these reasons I have given less weight to Dr. Taylar's evidence and have given more weight to the opinions expressed by Drs. Konopasky and Akhtar."
It was clearly in the province of the trial judge to give "little weight" to Dr. Taylar's opinion in this regard because it was based on unproven statements made by the appellant to him. (R. v. Lavallee (1990), 55 C.C.C. (3d) 97 (S.C.C.); see also Wilband v. The Queen (1967), 2 C.C.C. 6 (S.C.C.)).
Similarly, it was within the province of the trial judge, who indicated that he based his conclusions of acceptance or rejection of opinion testimony, on the "totality of the evidence", to have rejected the statement of Dr. Taylar that "perhaps he did control his impulses" considering the number of known victims as against the number of possible victims.
Therefore, the conclusion of the trial judge that there is a likelihood that the appellant will fail to control his sexual impulses in the future, is also fully supported by the evidence. In addition, I find no basis for challenging the manner in which the trial judge dealt with the opinion evidence of Dr. Taylar.
1(b) - likelihood of causing injury, pain or other evil
Counsel for the appellant accepts the fact that "injury, pain or other evil" as those words appear in s. 753(b) of the Code are not limited to injury or harm which is only physical in nature, and those words include psychological harm. Counsel's position is:
1. That there is no proof of actual psychological injury, pain or other evil to the appellant's victims.
2. That Drs. Konopasky and Akhtar are not qualified to predict the psychological effects of sexual assault and other sexual deviances upon victims; and the trial judge erred when he considered those opinions of Drs. Konopasky and Akhtar in his decision.
3. That the Crown did not prove, beyond a reasonable doubt, that psychological injury, pain or other evil would be caused (by the failure of the appellant, in the future, to control his sexual impulses).
Quite apart from the fact that Ms. F did testify as to the harm which the appellant caused her, s. 753(b) of the Code does not require proof of actual harm to the appellant's victims. In this regard, it only requires proof that the appellant has been convicted of a "serious personal injury offence". Parliament has chosen to include the indictable offence of sexual assault (to which the appellant pleaded guilty) within the definition of serious personal injury offence. I would, therefore, reject the appellant's submission in this regard.
Secondly, I do not agree with counsel for the appellant that Dr. Konopasky and Dr. Akhtar are not qualified to assist the judge with their opinions as to the likelihood of the appellant causing psychological injury, pain or other evil in the future. Both doctors are qualified forensic psychiatrists. I have made reference, earlier in this opinion, to the decisions in Sullivan (supra) and Carleton (supra) with respect to the use of psychiatric evidence by the trial judge. In reaching his conclusions the trial judge referred to the testimony of Dr. Konopasky and Dr. Akhtar, and their references to the psychological harm of depression, anxiety, fear, sexual disfunction, and multipersonality disorders. Quite apart from the psychiatrist's testimony, given the appellant's past conduct with young females, the fact that psychological injury, pain or other evil is likely to result to young females, if this type of conduct continued in the future, seems to me to be patently obvious.
Thirdly, the onus is not on the Crown to prove, beyond a reasonable doubt, that psychological injury, pain or other evil will be caused by the appellant. The Crown only has to show, beyond a reasonable doubt, the likelihood that such injury will be caused.
In Lyons v. The Queen (1987), 37 C.C.C. (3d) 1 the Supreme Court of Canada considered whether or not the dangerous offender provisions of the Code violated the Charter. LaForest, J. said, in considering whether or not the standard of proof or the use of psychiatric evidence was fundamentally unfair, at p. 48:
"Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future. I do not find it illogical for a court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only an apparent paradox is aptly captured by Morden J. in R. v. Knight (1975), 27 C.C.C. (2d) 343 at p. 356 (Ont. H.C.):
I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future - this, in the nature of things would be impossible in practically every case - but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct."
The trial judge properly applied the law in his consideration of this issue when he said:
"However, to predict future conduct with certainty is not required. What is required is a finding beyond a reasonable doubt that certain events will likely occur; to find beyond a reasonable doubt that a certain potential for harm exists. R. v. Lyons supra."
The trial judge, therefore, made no error:
1. In concluding that he was not required to predict future conduct with certainty; and
2. In concluding, after relying on the opinions of Drs. Konopasky and Akhtar, that he was satisfied beyond a reasonable doubt that the appellant is likely to cause psychological injury, pain or other evil to others through the failure, in the future, to control his sexual impulses.
I would therefore reject the first and third grounds of appeal.
2 - allowing evidence which was not relevant
Counsel for the appellant submits that much of the evidence called by the Crown was inadmissible. In his argument he advances two concerns with the Crown's evidence; firstly, that evidence which was not relevant and which was prejudicial to the appellant was admitted; and secondly that evidence of other criminal activity was admitted even though the appellant had been neither charged nor convicted in relation to those matters.
To deal with this ground of appeal it is necessary to review the provisions of the Code which deal with the nature of the evidence which is admissible on a dangerous offender application and the cases which have considered those provisions.
Section 755(1) of the Code sets out the nature of the evidence which the court hears on a dangerous offender application:
"755. (1) On the hearing of an application under this Part, the court shall hear the evidence of at least two psychiatrists and all other evidence that, in its opinion, is relevant, including the evidence of any psychologist or criminologist called as a witness by the prosecution or the offender." {Emphasis added}
This is supplemented by s. 757 of the Code which provides as follows:
"757. Without prejudice to the right of the offender to tender evidence as to his character and repute, evidence of character and repute may, if the court thinks fit, be admitted on the question whether the offender is or is not a dangerous offender."
The predecessor section to s. 755(1) of the Code was considered by this Court in R. v. MacInnis No. 2 (1981), 49 N.S.R. (2d) 393. Jones J.A. said at pp. 404-405:
"The appellant argues that under this section evidence of conduct which did not result in a conviction is not admissible in support of the application.
In R. v. Kanester [1968] 1 C.C.C. 351, the British Columbia Court of Appeal had to consider a similar ground of appeal. MacLean, J.A., in delivering the judgment of the court, stated at p. 354:
Counsel says, in effect, that the only evidence that can be given describing incidents of this kind are with respect to incidents where a conviction has been recorded against him. I cannot agree with this submission because when I turn to s. 661(2), I find that it says this:
'(2) On a hearing on an application under subsection (1) the court shall hear any relevant evidence, and shall hear the evidence of at least two psychiatrists.'
I italicize the words, 'any relevant evidence'. In my view it was relevant evidence that was given by Mrs. Settle from which an inference could be drawn this man had, within the meaning of the definition of dangerous sexual offender, on occasion in the past failed to control his sexual impulses, and, further, that it was also relevant to the question as to whether or not it was likely in the future that he would inflict pain or suffering as a result of his future failure to control his sexual impulses.
In R. v. Dawson, [1970] 3 C.C.C. 212, another judgment of the British Columbia Court of Appeal, Robertson, J.A., in speaking for the court, stated at p. 216:
In saying this the learned judge, in my respectful opinion, was in error. Section 661(2) does not require evidence of convictions; it requires the court to hear 'any relevant evidence'. Nor does the definition of 'dangerous sexual offender' require evidence of convictions; what it is concerned with is the person's conduct in sexual matters. This is not to say that evidence of convictions is not relevant evidence.
While there is a slight variation in the language in s. 690(1) as presently drafted, there does not appear to be any change in substance. In addition to the expert evidence referred to in the Section, all other relevant evidence is admissible on the issue of whether the offender is dangerous. I think the retention of s. 692[now s. 757], which permits evidence of character and repute, is some indication that Parliament did not intend to restrict the evidence which was admissible under the former provisions. In my view evidence of other offences was admissible even where it did not result in convictions."
In the case of R. v. Jackson (1981), 61 C.C.C. (2d) 540, Hart J.A. of this Court said at p. 544:
"A broad meaning must also be given to the direction in s. 690 [rep. & sub. 1976-77, c. 53, s. 14] that the Court shall in addition to the evidence of two psychiatrists hear "all other evidence that, in its opinion, is relevant". Such evidence must related, however, to the elements necessary to establish the pattern of behaviour referred to in s. 688[now s. 753] of the Code, and must be introduced in accordance with the regular rules of evidence."
Both MacInnis No. 2 (supra) and Jackson (supra) were followed by the Ontario Court of Appeal in R. v. Lewis (1984), 12 C.C.C. (3d) 353 where the court stated at p. 357:
"Such evidence is clearly relevant. "Other evidence" in s. 690(1) could have been expressly limited to convictions, if that had been the intention of Parliament. It is also noted that provision is made for the admission of evidence as to character and repute under s. 692. Evidence as to other incidents may be of considerable importance in establishing "a pattern of repetitive behaviour by the offender" under s. 688(a)(i), "a pattern of persistent aggressive behaviour by the offender" under s. 688(a)(ii), or "a failure to control his sexual impulses" under s. 688(b)."
With the principles from these cases in mind, I will deal with the submissions of counsel for the appellant.
Counsel for the appellant argues that the trial judge erred in allowing the following evidence to be admitted: evidence with respect to the firearm forfeiture hearing which arose in conjunction with the most recent offence related to the obscene telephone calls, the evidence of violence which arose from Constable Cutler's review of the appellant's diaries, the evidence of Constable McGibbon with respect to pornographic materials seized from the appellant's home, the evidence of Constable Prichard with respect to prior obscene telephone calls for which no charges were laid, and the evidence of Ms. F as it relates to drug use, violence or inappropriate behaviour.
It should be noted that no objection was taken, at the hearing of the application, to the evidence which counsel for the appellant now says is not relevant and is inadmissible. Further, counsel for the appellant cites no authority to support his position.
Counsel for the Crown makes the following points in response:
1. The evidence that a loaded restricted weapon was found in the appellant's bedroom is relevant in many respects. It corroborates the testimony of Ms. F. It supports a propensity for violence on the part of the appellant when coupled with the shooting fantasies described in his diaries. It also provides evidence of the appellant's "propensity to relinquish pro-social controls", a factor which Dr. Akhtar found relevant in assessing the likelihood in the future of the appellant failing to control his sexual impulses.
2. With respect to the evidence of violence which was found in a review of the appellant's diaries, Dr. Akhtar found these entries to be relevant on the issue of whether the appellant was likely to cause injury, pain or other evil in the future.
3. With respect to the pornographic materials seized from the appellant's home Dr. Akhtar reviewed this material, and found the appellant's pre-occupation with pornographic material relevant in assessing the strength of the appellant's sexual impulses. The strength of those impulses was relevant to Dr. Akhtar in considering the likelihood in the future of the appellant controlling his sexual impulses.
4. With respect to the evidence of Constable Prichard, his belief that the appellant was the member of the household that placed the obscene telephone calls, was supported by the appellant's own admission in 1989 that he, in the past, had made calls similar to those for which he was arrested.
5. With respect to the evidence of Ms. F on the appellant's drug use, Dr. Konopasky, Dr. Akhtar and Mr. Cann all found the appellant's substance abuse to be relevant to the appellant's ability to control his sexual impulses. Dr. Konopasky used the testimony of Ms. F to assist him in diagnosing the appellant as suffering from a narcissistic personality disorder, a disorder which affected the appellant's ability to respond to treatment. Dr. Akhtar attached great significance to the evidence of Ms. F. He explained that Ms. F provided evidence of the appellant's sexual experimentation, a factor he found to be of serious import in assessing the strength of the appellant's sexual impulses.
I agree with the Crown's position. All of this evidence was clearly relevant to the issues which the trial judge had to determine. While some of this evidence could be said to be prejudicial, its relevance far outweighed any prejudicial effect it may have had.
I would, therefore, reject this ground of appeal.
Conclusion - re: Finding of Dangerous Offender
In summary, the finding that the appellant is a dangerous offender is "essentially a question of fact" (see R. v. MacInnis No. 2 (supra) per Jones J.A. at p. 405).
In my opinion there was ample evidence to support the trial judge's conclusion that the Crown had established the statutory criteria in s. 753(b) of the Code. The trial judge made no error in concluding that the appellant is a dangerous offender.
The Sentence of Indeterminate Detention
Having found the appellant to be a dangerous offender, the trial judge has a discretion, under s. 753 of the Code, to either:
(a) sentence the appellant to an indeterminate period of detention; or
(b) sentence the appellant for the predicate offence.
The trial judge was not satisfied that the appellant would either submit to treatment for his paedophilia, nor was he satisfied that if he did submit to treatment that it would be successful. He decided that a sentence of indeterminate detention was required, and he imposed that sentence.
Application to Adduce Fresh Evidence
At the hearing of this appeal counsel for the appellant sought leave to introduce fresh evidence. I will deal with that application before dealing with the specific grounds of appeal against sentence.
The fresh evidence relates to the actions of the appellant while he was living in M. and just prior to turning himself in to the authorities on the charge with respect to the predicate offence. Counsel for the appellant submits that the evidence, if believed, would indicate that the appellant had made significant changes since the date of the predicate offence and would be a good candidate for rehabilitation. As such, counsel submits, it could have affected the trial judge's decision that the appellant would not submit to treatment, and, even if he did, the treatment would not be successful.
The proposed evidence is in the form of an affidavit deposed to by Pierre McCabe. Mr. McCabe is not identified other than being from Verdun, Quebec. The relationship between Mr. McCabe and the appellant is limited to the fact that the two of them met while attending Narcotics Anonymous meetings in the Province of Quebec.
Other than Mr. McCabe's confirmation that the appellant attended Narcotics Anonymous meetings, the depositions in the affidavit relate solely to what the appellant told Mr. McCabe concerning arrangements which the appellant had made for psychological services, and that the appellant had obtained full-time employment.
Mr. McCabe was not available for cross-examination on the depositions in his affidavit.
In Palmer and Palmer v. The Queen (1979), 50 C. C.C. (2d) 193 (S.C.C.) the Court reviewed the principles on which fresh evidence should be admitted:
1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
2. The evidence must be relevant in that it bears upon a decisive or potentially decisive issue;
3. The evidence must be credible; and
4. It must be such that, if believed, it could have effected the result.
In my opinion the proposed fresh evidence in the form of the affidavit of Pierre McCabe should not be admitted because it does not meet the Palmer test in several respects.
The evidence of Mr. McCabe is largely hearsay and represents information which he deposes that the appellant told him. There is no apparent reason why the appellant could not have given direct testimony, before the trial judge, with respect to the facts which are now proposed to be entered through Mr. McCabe. Secondly, there is no way to test the credibility of this fresh evidence. Mr. McCabe is not available for cross-examination. This Court knows nothing of Mr. McCabe other than the fact that he is a resident of Verdun, Quebec and that he attended Narcotics Anonymous meetings with the appellant. Thirdly, even if the evidence was admitted, and believed, the fact that the appellant "made arrangements to attend psychological services" and that he has "obtained full-time employment" is not evidence of such a kind that it could have affected the result of the trial. The trial judge clearly recognized that the appellant's attempts at rehabilitation in the past did not inspire confidence. In fact, the appellant re-offended in 1990 while he was on probation and in treatment. It cannot be said, therefore, that this evidence, even if believed, could have affected the result.
Therefore, the application to introduce the fresh evidence should be dismissed.
Grounds of Appeal on Sentence
The submissions of counsel for the appellant are, in essence, that the trial judge, in imposing a sentence of indeterminate detention, erred in three respects:
1. He failed to consider the factor of proportionality; i.e., the sentence of indeterminate detention is disproportionate to the nature of the predicate offence which, in this case, did not involve violence;
2. He failed to consider the nature of the sentence of indeterminate detention; that "it is, in effect, a life sentence" which is not warranted in this case;
3. He erred in concluding "that there was no accurate time period given as to the ability of the appellant to receive and apply treatment in controlling his behaviour". In this regard he erred in giving no weight to Dr. Taylar's opinion that the appellant was a good candidate for treatment. The appellant had indicated remorse to Dr. Taylar and that he was willing to continue treatment. He had entered a guilty plea to the predicate offence. Any ongoing risk to society, counsel submits, could be addressed by counselling he will have received by serving a determinate sentence.
1. Proportionality
The proportionality argument, as counsel has put it, has no relevance here as it would if the trial judge had imposed a determinate sentence, and that determinate sentence was being reviewed. Having found the appellant to be a dangerous offender, the trial judge had only two options; to impose a sentence for an indeterminate period, or to impose a sentence for the predicate offence. Counsel for the appellant has cited no authority for the proposition that in considering these options, the trial judge should consider what type of sentence is usually given for the predicate offence.
In addition, it would be impossible for the trial judge to predict the length of time that the appellant would serve under an indeterminate sentence. Section 761 of the Code provides that where the appellant is in custody as a dangerous offender, his case shall be reviewed for parole three years after custody commences and at least every two years thereafter.
Further, as Locke J.A. said in R. v. Noyes, Q.L. [1991] B.C.J. No. 3091 at p. 58; 1 W.A.C. 81:
"...it is not logically possible to challenge a decision such as this on the ground of "disproportion" to fixed sentence. Incomparables are being compared."
For all of these reasons, I would reject this submission on behalf of the appellant.
2. Nature of the Sentence
I do not agree with counsel for the appellant that the trial judge failed to consider the nature of the sentence of indeterminate detention. He recognized in his decision that he had conflicting concerns to address; namely, the appellant's right to freedom, and the right of children to be protected from abuse. His consideration of the nature of the sentence of indeterminate detention is obvious from the concluding portion of his judgment when he quoted, with approval, from R. v. Stockwood (1990), 83 Nfld. & P.E.I.R. 91 as follows:
"I agree with what Aylward, J. said in Stockwood, supra, at p. 120-121 83 Nfld. & P.E.I. R:
'Indeterminate sentence has been referred to and equated with life sentence. I do not accept that view. Indeterminate sentence places the responsibility for an offender's rehabilitation and future where it properly belongs, that is, in his own hands. Stockwood must realize and appreciate that his sexual conduct constitutes a threat to young boys and girls and unless and until parole authorities are satisfied after reviewing his condition, history and circumstances, that he should be granted parole and under what conditions he must remain confined.'"
I would, therefore, reject this submission.
3. Probability of a Cure within a Determinate Time
In his decision the trial judge said:
"The probability of a cure within a determinate time, while not relevant in determining whether the accused is a dangerous offender, may be considered in deciding whether to exercise my discretion in favour of a determinate or indeterminate period of detention."
In R. v. Carleton (supra) Clement J.A. said the following concerning the trial judge's discretion in imposing sentence on a dangerous offender, at pp. 22-23:
"The proper exercise of this consequential discretion is to be determined from a further appraisal of the psychiatric evidence in so far as it may forecast the future course of the aberration from which the offender suffers - whether it may change, and if so, whether for better or for worse, and in what range of time, and with what requirement for treatment - and the impression left on the court by the totality of the evidence.
No criteria for the exercise of a judicial discretion in such circumstances could be usefully legislated, and none has been. The offender may improve over a period of time, or he may not. He may stay the same despite treatment. He may get worse. Opinions are fallible. . . . . . Whatever a fit determinate sentence might be, if the evidence leads to the conclusion that the duration of time needed for treatment to effect rehabilitation exceeds the time of a fit determinate sentence, then the purpose of indeterminate detention should be given its effect. The words of MacKinnon J.A. in R. v. Pontello (1977), 38 C.C.C. (2d) 262 at p. 268, are then appropriate:
The evidence here gives us no confidence that there is any particular time span within which the appellant may be cured and the Court is not entitled to gamble on the safety of women in the community, however much inclined it might be to take a chance.
The purpose is to relieve the court from trying to weigh future imponderables in the sentencing process, and instead to leave the end result to the proof of time."
See also R. v. Lyons (supra - N.S.C.A. per Macdonald J.A. at p. 141)
The trial judge found, on the evidence, that the appellant "was not inhibited by normal standards of behavioral restraint, and he represents a threat to society".
In deciding whether a cure was probable within the determinate time, the trial judge relied on the psychiatric evidence that was available to him. In his decision he made reference to the pronounced pattern of the appellant's paedophilia and its existence for a long period of time. He noted the fact that there was no cure, per se, for paedophilia. Drugs are available to reduce drive, but those drugs would not change the appellant's orientation for female children. He noted that treatment was a long term process. The trial judge referred to the appellant's narcissism, his lack of empathy for others, his self-importance, his use of drugs, the use he makes of other people for his own pleasure with little regard to the pain he causes them. He referred to what Dr. Akhtar described as the appellant's "absence of contrition". In making this reference to "absence of contrition", the trial judge obviously preferred Dr. Akhtar's scepticism, with respect to the sincerity of the appellant, to Dr. Taylar's assessment based on the appellant's indication that he had remorse for the predicate offence. Further, the evidence indicated to the trial judge that the appellant has shown little motivation in the past to engage in treatment. He noted that the treatment, which the appellant undertook with Mr. Cann, was discontinued. The appellant was not only making no progress, he was regressing.
As to what the future holds, the trial judge referred to Dr. Konopasky's opinion that he had "no reason to be optimistic at all" that the appellant could be successfully treated. He referred to Dr. Akhtar's testimony that he was "not confident" that the appellant would engage in serious treatment efforts; and that his chances of a cure for his paedophilia are "not very rosy". The trial judge discounted Dr. Taylar's opinion. Dr. Taylar was more optimistic concerning the chances of the appellant's treatment because his paedophilia was "heterosexual and intra-familial", as well as the indications which the appellant had given to Dr. Taylar concerning the efforts he has made in this regard while he was in M.. The trial judge referred to the fact that while the predicate offence was intra-familial, the appellant's sexual activity with Ms. F was not intra-familial. Further, he would not rely on Dr. Taylar's opinion to the extent that it was based on information which the appellant had told Dr. Taylar concerning his efforts in M.. I have indicated earlier in this opinion that I find no basis for challenging the trial judge's decision with respect to his preference of the opinion evidence offered by the Crown over the opinion evidence of Dr. Taylar, and that need not be repeated here.
In R. v. Poutsoungas (1989), 49 C.C.C. (3d) 368 the Ontario Court of Appeal decided that where there was no evidence upon which the trial judge could conclude that there was a probability of a cure within a determinate time (the evidence, in that case, being subject to so many contingencies as to be little more than an expression of hope), the trial judge erred in law by imposing a determinate sentence on a person found to be a dangerous offender. The error, the court said, was the failure to give effect to the basic purpose of the dangerous offender provisions of the Code, the protection of the public.
In Lyons (supra) LaForest J. refers to the purpose of indeterminate detention being neither punitive nor reformative but primarily segregation from society. He refers to "protecting the public" as the historical purpose of the dangerous offender provisions.
Following his review of the psychiatric testimony, the trial judge made the following findings:
"Despite Dr. Taylar's optimism, I am not at all satisfied on the totality of evidence before me that Mr. B. will submit to treatment. Nor am I satisfied that, if he did submit to treatment, it would be successful. .... Mr. B.'s attempt at treatment in the past does not inspire confidence, whether in his willingness to take it or, if taken, that it would be successful."
Then, following his adoption of the words of Clement J.A. in Carleton, (supra) the trial judge says:
"Mr. B.'s right to freedom is important; children's rights to be protected from being sexually assaulted and abused is also important. Public protection looms large here. I am satisfied on the facts presented on this application that an indeterminate sentence is required and should be imposed."
In my opinion the trial judge made no error in coming to this conclusion. He made no error in focusing his concern on the protection of young females from being sexually assaulted and abused by the appellant whom he found to be a "threat to society"; and by considering whether or not there was probability of a cure, for the appellant, within a determinate time. There was ample evidence to support the trial judge's conclusion that the appellant represents a threat to society, and his further conclusion that the appellant would not submit to treatment, let alone respond to that treatment.
Since the trial judge found the appellant to be a threat to society as a dangerous offender, and since he found that efforts to treat the appellant's problem would be futile, this is not a case, as counsel for the appellant suggests, where the risk to society can be dealt with by counselling during a determinate sentence. On the contrary, given these findings by the trial judge, the appellant is, precisely, the type of sexual offender for which the sentence of indeterminate detention is designed. Its purpose is not to punish the appellant, but to segregate him from society, and, thereby, protect young females from sexual assault and abuse.
The appellant, quite simply, has to realize that he needs, and must accept, professional help for his paedophilia. Because that problem is so pronounced and so deep seated, it will take extra effort, and time, on his part to get that problem under control. If he does that, there are safeguards built into the Code for ending his indeterminate sentence. I have mentioned the provisions of s. 761 of the Code previously in this opinion. However, to take advantage of those safeguards the appellant must make serious commitments to treatment which, up to now, he has refused. Unless and until the appellant gets control of his problem with professional help, he must remain segregated from society.
I would dismiss this appeal.
Flinn, J.A.
Concurred in:
Chipman, J.A.
Pugsley, J.A.
C.A.C. No. 104252
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
J. H. B.
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Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
HER MAJESTY THE QUEEN )
) FLINN, J.A.
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Respondent )
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