



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. T.L.P.
,









2021 BCCA 36




Date: 20210129

Docket: CA44929

Between:

Regina



Respondent

And

T.L.P.



Appellant

Restriction
on publication:  A publication ban has been mandatorily imposed under
s. 486.4 of the
Criminal Code
restricting the publication,
broadcasting or
transmission in any way of evidence that could identify complainants or witnesses,
referred to by the initials C, K, J, A and X.
This publication ban applies indefinitely unless otherwise ordered.

Pursuant
to s. 16(4) of the
Sex Offender Information and Registration Act
[
SOIRA
],
no person shall disclose any information that is collected pursuant to an order
under

SOIRA
or the fact that information relating to a person is collected
under
SOIRA
.




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Fenlon

The Honourable Mr. Justice Fitch




On appeal from:  An order
of the Supreme Court of British Columbia, dated
October 20, 2017 (sentence) (
R. v. T.L.P.
, 2017 BCSC 1868,
Quesnel Dockets 25328‑2 and 26049‑2).




Counsel for the Appellant:



S.R. Wright





Counsel for the Respondent:



M. Shah





Place and Date of Hearing:



Vancouver, British
  Columbia

November 6, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

January 29, 2021









Written Reasons by:





The Honourable Mr. Justice Fitch





Concurred in by:





The Honourable Chief Justice Bauman

The Honourable Madam Justice Fenlon








Summary:

The appellant was convicted
of 13 counts of sexual assault‑related offences committed against
five young girls, four of whom were his nieces. He was found to be a
dangerous offender and was sentenced to a determinate sentence of 11 years
imprisonment to be followed by a 10‑year period of community supervision.
He appeals from the designation and the determinate sentence arguing that the
judge: (1) made a Boutilier error by failing to consider his treatment
prospects at the designation stage; (2) erred by failing to consider
prospects of control in the community at the designation stage; and (3) committed
errors in principle in sentencing with respect to the offences committed against
one of the victims. Held:

Appeal
dismissed. The judge properly considered the appellants treatment prospects at
the designation stage. Even assuming error in principle on this point, the
appellants designation as a dangerous offender was inevitable on the factual
findings made by the sentencing judge. The judge did not err by failing to
consider the prospect of community‑based control at the designation
stage. The judge did err in principle by imposing what he understood to be the
mandatory one‑year minimum sentence for two counts of sexual
interference. The Crown had conceded its inability to establish that these
offences were committed after the one‑year mandatory minimum sentence for
sexual interference came into force. However, the sentences imposed were not unfit
given the nature of the offences, the context in which they occurred, the
appellants high moral culpability, and the need to protect the public from the
risk of re‑offence.

Reasons for Judgment of the Honourable
Mr. Justice Fitch:

I.   Introduction

[1]

The appellant was convicted in 2015 by a Supreme Court judge of 13 counts
of sexual assault‑related offences committed against five young
girls. The offences occurred between 2001 and 2013. The victims were between
four and 10 years of age. Four of the victims were nieces of the
appellant. The fifth victim is the daughter of friends the appellant was
living with when he sexually abused her.

[2]

Following conviction, a risk assessment was ordered pursuant to s. 752.1
of the
Criminal Code
, R.S.C. 1985, c. C‑46 [
Code
]. The
assessment was assigned to Dr. Hughes Hervé. The appellant co‑operated
with the assessment. He was found to meet the
American Psychiatric Associations
Diagnostic and Statistical
Manual of Mental Disorders
(DSM‑V) criteria for the following
diagnoses: Pedophilic Disorder and Schizotypal Personality Disorder with
Paranoid, Narcissistic and Antisocial Features. Dr. Hervé concluded that
the appellant was at high risk to commit sexual offences against prepubescent
girls in the future. His future treatment prospects were assessed as being
poor. As Dr. Hervé put it in his assessment report, the appellant is
unlikely to fully address his criminogenic needs so as to be able to
substantially reduce his risk to children. Dr. Hervé did note, however,
that the appellant responds relatively well to structured, predictable, stable
and supervised environments, both within institutions and in the community.
While the appellant can be a challenging person to supervise, he has generally
followed externally‑imposed rules in the past, particularly when they are
clearly articulated and consistently enforced.

[3]

Following receipt of the assessment report, the Crown applied to have
the appellant designated a dangerous offender pursuant to s. 753(1)(a)(i) and (ii)
and s. 753(1)(b) of the
Code
. The predicate offences relied on by
the Crown were those committed against the appellants nieces. The offence
involving the fifth victim was relied on by the Crown to assist in
establishing the requisite pattern of behaviour.

[4]

Despite seeking a dangerous offender designation, the Crown conceded the
evidence established that the significant risk the appellant poses to the
public could be managed through the imposition of a lengthy period of
incarceration to be followed by a 10‑year long‑term supervision
order.

[5]

While the appellant contested his designation as a dangerous offender,
he conceded that:

·

some
of the predicate offences for which he was found guiltyspecifically, the
sexual assault offencesare defined as serious personal injury offences
within the meaning of subparagraph (b) of the definition of serious
personal injury offence set out in s. 752 of the
Criminal Code
,
R.S.C. 1985, c. C‑46 [
Code
];

·

the
evidence established the requisite patterns of behaviour under s. 753(1)(a)(i)
and (ii) of the
Code
;

·

the
evidence established a failure by him to restrain his behaviour in the past as
required by s. 753(1)(a)(i) of the
Code
;

·

the
evidence established a substantial degree of indifference on his part
respecting the reasonably foreseeable consequences to other persons of his past
behaviour as required by s. 753(1)(a)(ii) of the
Code
; and

·

the evidence established a failure to control his sexual impulses
in the past as required by s. 753(1)(b) of the
Code
.

[6]

The appellant argued in the trial court that the evidence fell short of
establishing the likelihood that he would fail to control his sexual impulses
in the future.

[7]

The appellant sought dismissal of the Crowns application to designate
him a dangerous offender but conceded that he met the criteria for designation
as a long‑term offender under s. 753.1 of the
Code
. He sought
a shorter determinate sentence, but agreed that a 10‑year period of post‑release
community supervision was appropriate.

[8]

The dangerous offender hearing was concluded and reasons for judgment,
indexed as 2017 BCSC 1868, were given on October 20, 2017. The reasons were
delivered after the release of this Courts judgment in
R. v. Boutilier
,
2016 BCCA 235, but before the Supreme Court of Canada rendered judgment in the
same case on December 21, 2017, for reasons indexed as 2017 SCC 64 (
Boutilier
(SCC)).

[9]

The judge concluded there is a likelihood the appellant will fail to
control his sexual impulses in the future and designated him a dangerous
offender. Pursuant to s. 753(4)(b) of the
Code
, the judge imposed a
global determinate sentence of 11 years imprisonment to be followed by a
10‑year long‑term supervision order.

[10]

The appellant appeals under s. 759(1) of the
Code
. He seeks
an order allowing the appeal, setting aside the dangerous offender designation
and substituting a long‑term offender designation. He also seeks a one‑year
reduction of the determinate sentence imposed in the trial court.

[11]

In support of the order he seeks, the appellant submits that:

1.  The judge erred in principle by
failing to consider his treatment prospects at the designation stage as
required by
Boutilier
(SCC);

2.  The judge erred in principle by
making a dangerous offender designation despite finding that he could be
managed or controlled within the confines of a determinate sentence followed by
a long‑term supervision order; and

3.  The
judge committed material errors in principle in sentencing him for the offences
he committed against K.

[12]

For reasons I will develop, I am not persuaded that the judge committed
reversible error in principle by failing to consider the appellants treatment
prospects at the designation stage, or by failing to consider at the
designation stage whether he could be successfully managed in the community
through the imposition of strict supervisory controls. I am persuaded that the
judge erred in principle in sentencing the appellant for two counts of sexual
interference involving K, and that the error had a material impact on the
sentence imposed on those counts. Considering the matter afresh, with due
deference to the factual findings made by the judge concerning the circumstances
of the offences involving K and the context in which those offences were committed,
I am not, however, persuaded that the overall sentence imposed in relation to
the K counts is unfit. In the result, I would dismiss the appeal.

II.  Background

Overview

[13]

The grooming behaviour and criminal conduct engaged in by the appellant
with respect to the five prepubescent female victims is depressingly familiar. What
sets this case apart is the appellants entrenched belief that his conduct was
justified, that he did nothing wrong, and that his victims were not harmed.

[14]

The appellant testified at trial. He admitted most of the allegations
and volunteered information about his offending behaviour that went well beyond
that which was led by the Crown. He testified that the five victims were,
despite their ages, capable of consenting to the sexual acts he committed and,
further, that the sexual activity he engaged in with the victims was not
undertaken for a sexual purpose. He said that he sought to educate these
children about the way in which sexual predators operate in order to pedophile
proof them.

[15]

The trial judge rejected the self‑protective fiction inherent in
the appellants account and found that he was motivated throughout by malign
intent and sexually deviant impulses he could not control.

[16]

The appellants evidence was summarized by the trial judge in oral
reasons for conviction, indexed as 2015 BCSC 618:

[32]      Although the accused did admit to knowing the
complainants ages he did nevertheless seek to suggest that the five children
were somehow capable of consenting to the sexual offending with which he is
charged.



[36]      The accuseds testimony concerning his belief in
the ability of a child of tender years to consent is based upon his adherence
to a belief system espoused by those persons who style themselves Freemen‑on‑the‑Land
or some iteration thereof.

[37]      To the extent I understand his evidence, the
accused says that consent is a matter of contract formed by offer and
acceptance in social settings in which, unless an offer is refused and notice
of refusal given to the offeree, consent is established. He asserts also that
silence in the face of an offer, whether verbal or physical, for example, an
unwanted touching of a person, can result in acceptance and therefore establish
consent.



[39]      Other than the repugnant notion that children of
the ages of these complainants could consent to the sexual activity for which
he has been charged, the accused has also sought to justify and decriminalize
his behaviour by reference to what he considers to be appropriate methods to
teach children of tender years about all aspects of sexual activity they might
encounter so that they will not become victims of sexual predators. He also
espouses the theory that if such children do become sexual victims, they will
know that they are not to blame and will not suffer guilt.

[40]      A part of his theory also is that children of
tender years are inherently sexual and that if they are not properly taught
about sexual activity in all of its aspects and possibilities so that they will
have full knowledge about those sexual topics, they will explore sexuality in
ways that might prove harmful to them and prevent healthy sexual development in
later years into their adulthood.

[41]      Those notions have become an essential part of the
accuseds belief system based upon his observation and participation in
discussions about child sexual abuse and pornography and child development on a
website he identified as Anonymous, which he believes to be credible and in
respect of which he has contributed.

[42]      Primarily, based upon
those theories, the accused testified and has submitted that the admitted
sexual activity in which he engaged with the complainants and most specifically
with, his four nieces, were not engaged in for a sexual purpose. He says they
were engaged in solely for the purposes of teaching and development of trust
relationships with them that would encourage them to come to him with sexual
issues, questions, or concerns in the future after having been so instructed.

[17]

With respect to the appellants evidence that his actions were not
undertaken for a sexual purpose, the judge said this:

[70]      Firstly, I find that the evidence establishes
that the accused has become obsessed with childhood sexuality. When that
obsession first arose is not capable of determination on the evidence at this
trial, but I have no doubt that it had started by at least 2001 when he became
sexually involved with C. in violating and dominating her sexually.

[71]      Secondly, I find that his obsession continued
and became more entrenched in the years leading up to 2012 when his actions
which are the subject of these proceedings escalated to involve his four
nieces. That obsession is evidenced by his acknowledgement of the influence of
the website Anonymous on his thinking and what he says is his study and
knowledge of the subjects of child pornography, child sexuality, childhood
sexual development, and the effect of sexual abuse on children in years
following such abuse.

[72]      Thirdly, I find that the accused decided that
his knowledge of childhood sexuality, which he believed exceeded that of the general
public and the childrens own parents, coupled with his Freeman philosophies,
led him to believe that he had the right to insert himself into the lives of
his nieces in areas which he knew were primarily the responsibility of their
parents even though he knew they were all good parents because the accused
believed he had some obligation to pedophile‑proof the children.

[73]      That concept of pedophile‑proofing was
something which he had discussed on Anonymous and had participated in
developing. Part of that participation included techniques that he deliberately
later engaged in with respect to his youngest nieces, in part, to seek to bring
himself into their inner circle so that they would in future come to him with
sexual questions and keep the specifics of his techniques secret.

[74]      Fourthly, while he says that what he was doing
was for the sexual protection of the children, his waiting for times in which
there was no parental or other adult supervision of his interaction with the
children leads me to the conclusions that the accused not only knew that what
he was doing would be seen to be wrong but was still prepared to deliberately
engage in those because he was convinced of his superior knowledge and
abilities as well as the correctness of his philosophies concerning childhood
sexuality and development which he believed should prevail over the rights of his
nieces parents.

[75]      Fifthly, I am satisfied
that the accuseds unfounded belief in the superiority of his knowledge,
coupled with his other philosophies, caused him to disregard known social norms
of which he was well aware, but with which he did not agree, because they
conflict [with] his own views of the world. He did so in deliberately seeking
out his nieces for sexual instruction and philosophical teachings that he
considered appropriate, notwithstanding their tender ages. He also did so
notwithstanding that what he was doing in secret to build trust by exposing the
children to what he believed had no potential for lasting harm because he said
he was trying to protect them from abusers they might encounter in the future.

[18]

Not surprisingly, the judge rejected the appellants self‑serving
explanations. He concluded that the appellants actions  amounted
to little more than the methodology by which pedophiles groom their victims
preparatory to acts of sexual abuse.

[19]

The appellants diagnosed pedophilic disorder coupled with his complete
lack of insight understandably featured prominently in the judges conclusion
that it was highly unlikely any treatment would successfully address the root
causes of his behaviour or assist him in restraining his sexual impulses in the
future.

The Offences

[20]

I will summarize the offences briefly and in chronological order. I
should add that the judge misspoke on several occasions in his reasons when
addressing the counts that were to be stayed pursuant to
Kienapple v. The Queen
(1974), [1975] 1

S.C.R. 729. This gave
rise to some confusion and doubt about whether the Warrant of Committal
accurately reflected the intention of the sentencing court. As the confusion
persisted when the appeal was argued, the parties were invited to appear before
the sentencing judge to seek clarification and directions. Since reserving
judgment, we have been advised by counsel that the judge ordered the Warrant of
Committal to be amended to give effect to his intention that the sexual assault
counts be stayed and that convictions be entered on the companion counts of
sexual interference and invitation to sexual touching, contrary to ss. 151 and 152
of the
Code
. The convictions referred to herein with respect to each of
the complainants are those reflected on the amended Warrant of Committal.

[21]

The offences involving the victim C were first in time. C is the
only complainant not related to the appellant. She lived with her parents in a
house also occupied by the appellant. The offences occurred in 2001 and 2002. C
was sexually abused by the appellant on multiple occasions. On one such
occasion, the appellant showed C his penis because he said she kept bugging
him for sexual contact. At the time of the incidents, C was between four and five years old.
The appellant admitted that on one other occasion when he said C wanted sexual
contact with him, he bounced her on his knee while the lower half of her body
was unclothed. The appellant said his intention was to initiate hard contact
with Cs vaginal area and anus in order to cause her some pain. On a third
occasion when he was alone with C after her fifth birthday, the appellant
testified that instead of committing an act involving cunnilingus, he pinched C
just above her vagina to inflict pain. The appellant said he did this so C
would not like sexual activity and would not continue to seek it out. The judge
found that the appellant was in a position of trust when the offences were
committed. The appellant was found guilty of sexual assault (Count 7) and
sexual interference (Count 8) in relation to C. The sexual assault count
was conditionally stayed.

[22]

The appellant was found guilty of two counts of sexual assault and two
companion counts of sexual interference in relation to K. The offences
consisted of two acts committed by the appellant at different times and in two different
locations between January 2011 and January 2013. K was between six and eight
or nine years of age when the appellant sexually abused her. The appellant
engaged K in discussions about sex and what to do if someone did something
wrong to her. K said she would tell her mother. The appellant told her this was
not the right thing to do and, acting on some bizarre notion espoused by Freeman‑of‑the‑Land,
told her that she had to first say no to her abuser and give a second
rejection or notice of default. He told her that silence meant consent. In
the first incident, the appellant put his hand on Ks vaginal area while she
was clothed to demonstrate to her how she should respond to a sexual predator.
In the second incident, he put his hand beneath her underwear and touched the
skin above her vagina, telling her that sex felt good. Convictions were entered
on two counts of sexual interference (Counts 13 and 15). The
sexual assault counts were conditionally stayed.

[23]

The appellant was found guilty of sexual assault (Count 10), sexual
interference (Count 11) and invitation to sexual touching (Count 12)
in relation to J. The sexual assault count was conditionally stayed. These
offences occurred between February 2012 and January 2, 2013. J was
between four and five years old when she was violated by the
appellant. The offences were committed when the appellant came to live with his
sister and her husband. The appellant groomed J for sexual abuse by secretly
engaging her in discussions about male and female genitalia while both of them
were unclothed, naming for her male and female sexual organs, showing her his
penis, and demonstrating for J various sexual acts that involved bodily contact
while both of them were clothed. He also encouraged her to masturbate and
engage with him in sexual role‑playing. Within three months, the
appellant violated Js sexual integrity by having her submit to an act of oral sex
the appellant testified was designed to give her pleasure. He also used a toy
on Js anus which caused her pain. The appellant claimed that he did this so J
would understand she needed to be more careful when touching herself in
sensitive areas of her body. The judge found that the appellants conduct
displayed a disregard for social norms with which he does not agree and that he
manipulated J and her family for his own sexual gratification. Significantly, he
also found that the appellant would have continued to abuse J had he not been
arrested in January of 2013.

[24]

The appellant sexually abused his nieces A and X, who are sisters, when
he was looking after them on New Years Eve in 2012. A was seven years
of age when she was sexually abused by the appellant. X was five.

[25]

The appellant admitted that he followed the same pedophile proofing
steps with A as he had with J, but did so in an 18 hour rather than a nine‑month
period of time. On this occasion, the grooming also included showing both
children pornographic images. The appellant told Dr. Hervé that one of the
images he showed both victims depicted a child crying while being raped.

[26]

The appellant admitted examining As vagina. He said he did so to ensure
that her hymen remained intact and dispel his professed (and unsupported) concern
that A was being sexually abused. X watched and was enlisted by the appellant to
participate in the examination by touching her sisters vagina. The appellant
also admitted that he tried to get an erection to show A what an erect
penis looks like. He then put his penis into her mouth. He also subjected A to
an act of cunnilingus in the presence of X. The appellant was found guilty of
sexual assault (Count 2), sexual interference (Count 1) and
invitation to sexual touching (Count 3) in relation to A. The sexual
assault count was conditionally stayed.

[27]

With respect to X, the appellant admitted taking her pants off and
spreading her legs, or causing her to do so, so that he and A could examine her
vaginal area. X touched herself in the vaginal area while this was occurring.
The judge had a reasonable doubt about whether the appellant touched X during
the examination. The appellant was convicted of invitation to sexual touching
in relation to X (Count 6).

[28]

The appellant was arrested on January 1, 2013. He was released on
bail two days later. While there were some difficulties associated with
supervising the appellant while on judicial interim release, he was not
convicted of breaching his recognizance between his arrest and the conclusion
of the trial.

[29]

The appellant was convicted on March 6, 2015. He was remanded in
custody pending the imposition of sentence. The appellant served 31.5 months
in pre‑sentence custody.

[30]

After the conclusion of the dangerous offender hearing, the appellant
pleaded guilty to one count of possessing child pornography, contrary to
s. 163.1(4) of the
Code
. The Crown and defence jointly submitted
that a one‑year sentence of imprisonment be imposed for this
offence, concurrent to the sentences imposed on all other counts.

Victim Impact

[31]

A number of victim impact statements were provided to the sentencing
judge. Those statements speak powerfully to the harm caused by the appellant,
including the devastating impact of his behaviour on the parents of the victims
who were betrayed by him. They also speak to disturbing behavioural changes
some of the parents have noted their children to display since the offences
were committed. Finally, they address the inevitable trauma associated with a
child of tender years undergoing a sexual assault examination.

The Offender

[32]

The appellant was 43 years of age when Dr. Hervé conducted his
risk assessment. He was 45 when sentence was imposed. He had no prior
criminal record.

[33]

The appellant has two sisters who are the mothers of the
complainants, K, J, A and X.

[34]

The appellant has two children, a son and daughter, from a marriage
that appears to have ended in 2001. He has been estranged from his ex‑wife
and children for many years. The appellant testified at trial that he removed
himself from his daughters life when she was three or four years old
because he wanted to protect her from what he then thought might be his own pedophilic
urges.

[35]

The appellant began accessing child pornography in the late 1990s.
He became obsessed with conducting research on child sexual abuse and started
affiliating with a number of fringe groups including Anonymous, a network of
individuals he claims is responsible for identifying child sexual predators on
the Internet, and Freemen‑on‑the‑Land. In his interview with Dr. Hervé,
the appellant said these groups reshaped his worldview into what it has become
today.

[36]

The appellant lived somewhat of a transient lifestyle after leaving his
family before taking up residence with a friend and committing the sexual
offences against C in 2001.

Letters Sent by the Appellant Prior to Sentencing

[37]

The extent to which the appellant is entrenched in his self‑protective
narrative and deviant disorder is apparent from letters he sent to the
prosecutor and others before sentence was imposed. A brief sampling of those
letters is set out below:

You are wrong about me. When I taught my nieces about sex it
was to protect them, because knowledge is power. I did not teach them about sex
as part of a grooming regimen to later abuse them, as suggested by the Judge,
and really, the idea is flawed, for if I wanted sex with my nieces, there would
have been nothing to stop me  Never once did I become sexually aroused
while teaching my nieces about sex, and if I had, I would have stopped,
immediately, and sought out help, because I do understand about the damage that
early childhood sexual abuse causes  I sought to protect my nieces from
such abuses through knowledge, and they are protected. Especially J, who
received many more lessons and more practice than the others. No one, no matter
how adept at luring or abusing children, could lure or abuse her

Please understand that I am not trying to downplay what I
have done.
I just do not see how it was wrong, and I think both you and the Judge
(and also the police and my family) have made false presumptions as a result of
a deeply held societal confirmation bias. I acted to protect those closest to
me from very real dangers that few people understand  What I did was
a mistake, but I dont see it as a crime
My purpose was to do a good
thing, and while I failed to do so  The fact that I was not motivated by
ill intentions should have excused my actions  I have concluded that
there are definitely some problems with the way child abuse cases are handled,
whereby I, as a child of God any veritable master of private international
commercial law, will be making some changes

My thinking and understanding of the world is so far
apart from that of the average Canadian that I cannot be or rightly be
considered to be a citizen of Canada, for is not a society a group of peoples
gathered together with a common understanding for a shared purpose? And are
statutes not the legislated rules of a society, binding only those who belong
to that society?

I am a Crown‑Freeman of the Crown‑Freeman
Society. I am not a Canadian


Note also that none of the girls had a problem with
any of it.

I do not understand how I harmed anyone.

Note that the greatest harm done to an abused child is
done by the courts, who, by their actions, cause lables [sic] to be affixed to
the child
; victim, abused, survivor, complainant, such names stay with the
child forever, making their past almost inescapable.

[Emphasis added.]

[38]

In other correspondence, the appellant asserted that he was sovereign
and, therefore, immune from prosecution. He further asserted and that he had a
lawful excuse for ignoring any order issued by any Canadian court. He gave
notice of his intention to seek $70 million in damages against the Crown
unless the prosecutor repented and sought forgiveness.

[39]

Later, the appellant wrote the prosecutor a letter in which he stated:

I would be happy to agree to an LTO if we can come to terms
but first, let us agree that
I am not an offender
, but a deceiver for
the Great Work, where lies are excused, because the end justifies the means.
I
did not abuse my nieces. Rather, I taught them about sex, and about their
rights, and about how to say no, and about when to say yes
[A]nd I
did this because of the immense love that I have for them.

[Emphasis added.]

[40]

The appellant also explained to the prosecutor that he wished to
continue his work with the Anonymous, by surreptitiously ferreting out the
activities of pedophiles:

The plan then, is to create a secret society, wherein the outward
appearance is a pedo‑friendly community where pedo‑sexuals  can
meet and mingle with others like themselves, and possibly even meet sexually
active children to have relationships with, but inwardly, secretly, the society
is a prison for them, and a place of safety and healing for their victims.

For such a plan to work, I need standing with the pedophiles.
I must be able to stand among them, as one of them, so that they could believe
me when I say that a society exists  and that they could be a member
too, if they choose

Now that you know my mind, here
is what I wish. I want as short a sentence as possible. I would have liked to
take the corrective programs myself, to have the experience, as I will be
sending countless others to do so, but it is enough to know that the program
is, at least partly, effective. That said, if I must serve some (more) time,
then I do want to take such programs. I want a 10 year L.T.O., so I can
have proof on hand for as long as possible that I am one of them, but I want
lenient conditions. Reporting is to be by phone only, as I will be travelling
often, to go where the pedophiles are, to recruit them into service and
initiate them into...the secret society which I create. I will need to reside
at a designated location, but this must never be checked, as I will often not
be there. I can have no restrictions on weapons, as I will carry a gun by claim
of right, because my life will be in constant danger, even more so than it is
now. Neither can I have restrictions on Internet access, as initial contact
will be made, in most cases, by computer, or, if such a condition is included,
an agreement that it not be enforced. I am agreeable to any other condition
which does not limit my ability to be effective in the protection of children or
the correction of pedophiles

Diagnoses and Risk Assessment Evidence

[41]

The appellant did not testify on the dangerous offender hearing.

[42]

The Crown called Dr. Hervé, a registered psychologist who
specializes in forensic psychology, in support of its application to have the
appellant declared a dangerous offender. The appellant called Conrad MacNeil. Mr. MacNeil
holds a Master of Arts degree in psychology. He is a registered psychologist in
British Columbia who has considerable experience in the assessment and
treatment of offenders. The judge qualified Dr. Hervé to give opinion
evidence in the area of forensic psychology, including the assessment of risk
and the diagnosis and treatment of psychiatric disorders. He also qualified Mr. MacNeil
to give opinion evidence on the diagnosis of psychiatric conditions and on the
assessment of an offenders treatment prospects and risk of re‑offence,
concluding that his more limited qualifications went not to the admissibility
of his evidence, but to the weight it should be given.

[43]

The appellant maintained with Dr. Hervé that his behaviour was
motivated by educational ends, not sexual gratification. Dr. Hervé noted
the appellants well‑ingrained deviant sexual interest in prepubescent
girls, his preoccupation with child sexuality, and the odd beliefs he espoused
in an apparent effort to justify his behaviour. He concluded that the appellant
uses his profoundly disturbed belief system to rationalize his offending. He
noted that the tenets of the appellants belief systemthat sexual attraction
to children is not unnatural and that children as young as three and four years old
are sexualized beings who should be taught about sexall support child
exploitation.

[44]

Dr. Hervé also noted the appellants claim that his actions had no
negative impact on his nieces that he could see and that they thanked him
for teaching them about sex. The appellant does not see himself as a pedophile
because he holds the view that a diagnosis of pedophilia requires proof that an
individual has acted on their deviant sexual urges. The appellant continued to
deny any such urges or motivation.

[45]

Dr. Hervé concluded that the appellant displayed little insight
into his condition, aberrant thinking or risk factors. As he has convinced
himself that he has done no harm, the appellant appears to have limited victim
empathy and showed little remorse for his actions. Dr. Hervé further noted
that, given that [the appellant] continues to claim that he did nothing wrong,
[he] showed limited interest in treatment. Indeed, Dr. Hervé concluded
that the appellants interest in and motivation for treatment is substantially
lower than is typical of individuals being seen in treatment settings. The
appellants responses suggested to Dr. Hervé that he is satisfied with
himself as he is, that he is not experiencing marked distress, and that he sees
little need for changes in his behaviour. The appellants limited insight and
behavioural rationalizations were characterized as significant disinhibiting
factors that would facilitate offending.

[46]

The appellant denied using child pornography for his own entertainment,
but only as a means of identifying and exposing child predators. He told Dr. Hervé
that his research into child sexual behaviours taught him that children
sometimes appear to enjoy sex, to be active participants. Dr. Hervé also
noted the appellants evidence at trial that people dont get caught for
having sex with children  because the children lie about it to protect
them, because whos going to go and ruin their chance of having a second orgasm
when theyve just had one 

[47]

Dr. Hervé concluded that if a finding was made that the appellant
committed the offences for his own sexual gratification and invented the concept
of pedophile proofing in an effort to get away with his offending behaviour,
his actions would properly be viewed as being much more calculated,
manipulative and callous. Dr. Hervé reported that this would be a very
significant motivating risk factor. These factual findings were, of course,
made by the sentencing judge.

[48]

On the issue of future risk, Dr. Hervé reported that the appellant
is at a high risk to reoffend in a sexual manner against prepubescent girls and,
in particular, to reoffend against girls he knows who are four years of
age or younger.

[49]

Dr. Hervé addressed the appellants treatment prognosis in these
terms:

[The appellants] treatment prognosis (i.e., the likelihood
of fully neutralizing his various criminogenic factors through treatment) is
poor, given the following: the long‑standing, multifaceted, and
entrenched nature of [the appellants] sexual offending; the hard to treat
nature of his various criminogenic factors (i.e., personality issues, substance
abuse, bipolar disorder, sexual deviancy, preoccupation with child abuse, and
attitudes supportive of adult‑child sexual relationships are known to be
difficult to treat to extinction); his responsivity issues, which are likely to
complicate the treatment process; his positive impression management; his poor
insight; his poor treatment motivation; his limited prosocial social support
system; and his intention to continue to affiliate with like‑minded
individuals and fringe groups.

With that said, should [the appellant] put concerted,
sustained effort towards rehabilitation, follow treatment recommendations, and
have access to the appropriate treatments, and he has the intellectual and
emotional capacity to make progress in treatment. He is likely to be most
successful in the context of ongoing community support and treatment.

[The appellants] prognosis for
successful community reintegration is guarded (i.e., between good and poor). One
[sic] the one hand, his treatment prognosis is poor and, therefore, he is
unlikely to fully address his criminogenic needs so as to be able to
substantially reduce his risk to children. On the other hand, [the appellant]
was able to live in the community without reoffending for over two years
while on bail. Accordingly, his risk is likely to be manageable within the
community with ongoing, intensive supervision and consistent community support.

[50]

In his
viva voce
evidence on the dangerous offender hearing, Dr. Hervé
said that even if the appellant does not make treatment gains, he can be
managed in the community with appropriate conditions and close supervision.

[51]

Mr. MacNeils diagnostic impressions were similar to those of Dr. Hervé.
He agreed that the appellant met the DSM‑V criteria for Pedophilic
Disorder but was also of the view that he met the diagnostic criteria for Delusional
Disorder with Grandiose Features.

[52]

The appellant remained adamant in his interview with Mr. MacNeil
that he was not motivated by a sexual purpose when he touched the complainants.
Mr. MacNeil did, however, report that the appellant acknowledged having
pedophilic urges and wished to take steps to rid himself of what he described
as intrusive and unwanted experiences.

[53]

In addressing the appellants future risk of re‑offence, Mr. MacNeil
said this in his report:

Consistent with Dr. Hervés impression is that [the
appellant] is deemed to be a High Risk to sexually re‑offend against
prepubescent children; however this degree of risk is associated with [the
appellant] being in the community unsupervised and without limitations or
restrictions, and having access to children within a home environment. Further,
[the appellant] is a Low‑Moderate Risk to reoffend under similar
community limitations and restrictions while under supervision as occurred
while he was on bail release. The risk would move lower in that range upon
successful completion of treatment programs that would be made available to him
by Correctional Services of Canada within a federal penitentiary setting.



Once it has been determined that
[the appellants] progress through the completion of treatment programming
within the institution is sufficient for follow up maintenance programming
within the community he would be seen as a good candidate for release with a
supervision period of sufficient length.

Reasons for Sentence

[54]

The sentencing judge concluded that the sexual interference and
invitation to sexual touching offences committed by the appellant are serious
personal injury offences within the meaning of subparagraph (a) of the
definition of serious personal injury offence set out in s. 752 of the
Code
;
namely, indictable offences involving the use or attempted use of violence
against another person or conduct endangering or likely to endanger the life or
safety of another person or inflicting or likely to inflict severe
psychological damage on another person. That conclusion is not at issue on this
appeal.

[55]

As noted earlier, the judge applied
Kienapple
by entering
conditional stays of proceedings on the sexual assault counts in respect of
which findings of guilt were made where the appellant was also convicted of
sexual interference and/or invitation to sexual touching in relation to the
same complainant.

[56]

The judge framed, in unobjectionable terms, the central issue on the
dangerous offender hearing this way: whether the evidence established a
likelihood that the appellant will sexually abuse children in the future (in
which case a dangerous offender designation would follow), or whether the
evidence established only a substantial risk that he would do so, (in which
case a long‑term offender finding would be made).

[57]

Citing this Courts judgment in
Boutilier
at para. 62 and
R.
v. Szostak
, 2014 ONCA 15 at para. 36, the judge concluded that the
appellants amenability to treatment played a limited role at the designation
stage. The appellant asserts error in principle in connection with this issue
and I will address it later in these reasons in addressing the grounds of
appeal.

[58]

The judge noted the relentless stream of letters sent by the appellant
to the prosecutor after his conviction. He concluded that the bizarre nature of
those letters raised serious concerns about the appellants deeply‑ingrained
deviance, lack of remorse and refusal to accept societal norms, all of which
underscored the very serious risk that he will reoffend. As noted earlier, the
appellant acknowledged his behaviour in those letters but persisted in his
claim that he did nothing wrong and caused no harm to his victims. The judge
also noted that the appellants willingness to accept treatment as expressed to
Mr. MacNeil was inconsistent with these letters. This led the judge to
doubt the reliability and sincerity of the appellants statement to Mr. MacNeil
that he was motivated to obtain treatment.

[59]

The judge rejected Mr. MacNeils opinion that the appellants offending
behaviour was the product of delusional beliefs. The appellants belief system was,
however, found to be a serious risk factor informing the likelihood that the
appellant will perpetrate similar sexual offences against children in the
future.

[60]

The judge found that the appellant has a distorted perception of child
sexuality and makes excuses for his pedophilic behaviours. He found the
appellant to be unremorseful.

[61]

On the totality of the evidence, the judge was satisfied that the
appellant was not motivated to accept rehabilitative treatment and that it was
highly unlikely that any treatment would be successful in addressing the root
causes of his offending behaviour. He concluded it was highly unlikely that any
treatment the appellant might receive while incarcerated would restrain his
future behaviour or serve to control his sexual impulses in relation to
prepubescent female children.

[62]

The judge found that while the appellant was intractable from a
treatment perspective, he accepted the Crowns concession that there was a
reasonable expectation a lengthy prison sentence followed by a long‑term
supervision order would adequately protect the public against commission by the
appellant of a future serious personal injury offence. This finding was based
largely on the appellants performance in the community while on judicial
interim release pending trial.

[63]

The Crown sought a global determinate sentence of 14 years
imprisonment. The appellant sought a sentence in the range of 6 ½ to 9 years
imprisonment.

[64]

The judge noted that he was required in imposing a determinate sentence
to give primary consideration to the objectives of denunciation and deterrence
because the appellants conduct involve the abuse of children: s. 718.01.
He also noted other circumstances associated with the commission of these
offences that were to be treated as aggravating factors under s. 718.2:
the appellant abused a person under the age of 18 years; the appellant, in
committing the offences, abused a position of trust or authority; the
significant impact his behaviour had on the victims.

[65]

In the result, the judge designated the appellant a dangerous offender
and imposed a global determinate sentence of 11 years imprisonment to be
followed by a 10‑year long‑term supervision order.

[66]

Sentencing submissions were made by counsel and the sentence was imposed
well before judgment was rendered in
R. v. Friesen
, 2020 SCC 9. The
judge did, however, refer to
R. v. D. (D.)
, (2002) 58 O.R. (3d) 788
(C.A.) at paras. 3536, which was cited with approval in
Friesen
,
R.
v. D.M.
, 2012 ONCA 520 at para. 38, and this Courts judgment in
R.
v. Worthington
, 2012 BCCA 454 at paras. 3134, in recognition of the
harms caused to children who are sexually abused, and in support of the
proposition that sentencing courts must impose sanctions that recognize the
prevalence of child sexual exploitation, the high moral culpability that
attaches to these offences, and the obligation to ensure that our most valued and
vulnerable assetschildrenare protected from sexual abuse.

[67]

The judge apportioned the determinate sentence as between the counts as
follows:








Count



Complainant



Offence



Sentence





Information
25328‑2



1



A



Sexual Interference



30 months









3



A



Invitation
  to Sexual Touching



30 months
  concurrent









6



X



Invitation
  to Sexual Touching



12 months
  consecutive









8



C



Sexual
  Interference



18 months
  consecutive









11



J



Sexual
  Interference



4 years









12



J



Invitation
  to Sexual Touching



4 years
  concurrent









13



K



Sexual
  Interference



12 months









15



K



Invitation
  to Sexual Touching



12 months
  consecutive





Information
26049‑2



1







Possession
  of Child Pornography



12
  months concurrent









Total Determinate Sentence



11 Years
  Imprisonment




[68]

The judge concluded that the manner in which he structured the sentence
did not violate the totality principle. The appellant was given enhanced credit
for time served in pre‑sentence custody, at a ratio 1.5:1. Having
served 31.5 months in pre‑sentence custody, he was credited for
having served 48 months imprisonment.

III. Analysis

Legislative Framework

[69]

Before turning to address the appellants grounds of appeal, I will set
out the provisions of the
Code
that were in force at the time of the
sentencing and that are most relevant to the disposition of this appeal:

PART XXIII

Sentencing



Purpose and Principles of Sentencing

Purpose

718
The fundamental purpose of sentencing is to
protect society and to contribute, along with crime prevention initiatives, to
respect for the law and the maintenance of a just, peaceful and safe society by
imposing just sanctions that have one or more of the following objectives:

(a)
to denounce unlawful
conduct and the harm done to victims or to the community that is caused by
unlawful conduct;

(b)
to deter the offender
and other persons from committing offences;

(c)
to separate offenders
from society, where necessary;

(d)
to assist in
rehabilitating offenders;

(e)
to provide reparations
for harm done to victims or to the community; and

(f)
to promote a sense of
responsibility in offenders, and acknowledgment of the harm done to victims or
to the community.

Objectives  offences
against children

718.01
When a court
imposes a sentence for an offence that involved the abuse of a person under the
age of eighteen years, it shall give primary consideration to the
objectives of denunciation and deterrence of such conduct.



Fundamental principle

718.1
A sentence must
be proportionate to the gravity of the offence and the degree of responsibility
of the offender.

Other sentencing principles

718.2
A court that
imposes a sentence shall also take into consideration the following principles:

(a)
a sentence should be
increased or reduced to account for any relevant aggravating or mitigating
circumstances relating to the offence or the offender, and, without limiting
the generality of the foregoing,



(ii.1)
evidence that the
offender, in committing the offence, abused a person under the age of eighteen years,

(iii)
evidence that the
offender, in committing the offence, abused a position of trust or authority in
relation to the victim,

(iii.1)
evidence that the
offence had a significant impact on the victim, considering their age and other
personal circumstances, including their health and financial situation,



shall be deemed to be aggravating
circumstances;

(b)
a sentence should be
similar to sentences imposed on similar offenders for similar offences
committed in similar circumstances;

(c)
where consecutive sentences
are imposed, the combined sentence should not be unduly long or harsh;



PART XXIV

Dangerous Offenders and
Long‑term Offenders



Application for finding
that an offender is a dangerous offender

753   (1)
On
application made under this Part after an assessment report is filed under
subsection 752.1(2), the court shall find the offender to be a dangerous
offender if it is satisfied

(a)
that the offence for
which the offender has been convicted is a serious personal injury offence
described in paragraph (a) of the definition of that expression in section 752
and the offender constitutes a threat to the life, safety or physical or mental
well‑being of other persons on the basis of evidence establishing

(i)
a pattern of
repetitive behaviour by the offender, of which the offence for which he or she
has been convicted forms a part, showing a failure to restrain his or her
behaviour and a likelihood of causing death or injury to other persons, or
inflicting severe psychological damage on other persons, through failure in the
future to restrain his or her behaviour,

(ii)
a pattern of
persistent aggressive behaviour by the offender, of which the offence for which
he or she has been convicted forms a part, showing a substantial degree of
indifference on the part of the offender respecting the reasonably foreseeable
consequences to other persons of his or her behaviour, or

(iii)
any behaviour by the
offender, associated with the offence for which he or she has been convicted,
that is of such a brutal nature as to compel the conclusion that the offenders
behaviour in the future is unlikely to be inhibited by normal standards of
behavioural restraint; or

(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 or her conduct in any sexual matter including that
involved in the commission of the offence for which he or she has been
convicted, has shown a failure to control his or her sexual impulses and a
likelihood of causing injury, pain or other evil to other persons through
failure in the future to control his or her sexual impulses.



Sentence for dangerous
offender

(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.

Sentence of indeterminate
detention

(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.



If offender not found to be
dangerous offender

(5)
If the court does
not find an offender to be a dangerous offender,

(a)
the court may treat the
application as an application to find the offender to be a long‑term
offender, section 753.1 applies to the application and the court may
either find that the offender is a long‑term offender or hold another
hearing for that purpose; or

(b)
the court may impose
sentence for the offence for which the offender has been convicted.



Application for finding
that an offender is a long‑term offender

753.1

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

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

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

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

[70]

Section 753(1) lists the statutory requirements that must be met
before a court can designate an offender as dangerous. This is referred to as
the designation stage. Sections 753(4) and (4.1) relate to the
sentencing of a dangerous offender. This is referred to as the penalty stage.

The Applicable Standards of Review

(a) Appeal
from the Dangerous Offender Designation

[71]

The standard of review applicable to an appeal from a dangerous offender
designation was recently restated in
R. v. Garnot
, 2019 BCCA 404 at para. 47:

[47]      Under s. 759(1) of
the
Criminal Code
, a person who is found to be a
dangerous offender may appeal on any ground of law or fact or mixed law and
fact. This court has stated that the appellate review of a dangerous offender
designation is somewhat more robust than regular appellate review of a
sentence, although some deference is still owed to the sentencing judges
findings of fact and credibility. As observed in
R. v.
Malakpour
2018 BCCA 254, the standard for errors of law is correctness
and for errors of fact, reasonableness. (At para. 47, citing
R. v. Sipos
2014 SCC 47 at para. 26;
R.
v. Boutilier
2017 SCC 64 at para. 81; and
R. v.
Walsh
2017 BCCA 195 at para. 23.)

Absent a material error of
law, a dangerous offender designation and findings essential to it, including
the assessment of an offenders future risk and amenability to treatment,
engage questions of fact to which deference is owed. The role of an appellate
court is to ensure that the law was applied correctly and, if it was, to decide
whether the designation is reasonable:
Boutilier
(SCC) at paras. 81,
8588.

(b) Appeal
from the Determinate Sentence

[72]

The standard of review on an appeal challenging the
fitness of a determinate sentence is deferential. Absent an
error in principle shown to have a material impact on the
sentence, an appellate court may not vary the sentence
unless it is shown to be demonstrably unfit:
R. v. M. (C.A.)
,
[1996] 1 S.C.R. 500 at para. 90;
R. v. Lacasse
,
2015 SCC 64 at para. 11;
Friesen
at para. 26;
R. v. Agin
,
2018 BCCA 133 at paras. 52, 5657.

Ground #1:  Failure to
Consider Treatment Prospects at the Designation Stage

[73]

The appellant submits that the sentencing judge followed the jurisprudence
as it existed before the Supreme Court of Canadas decision in
Boutilier
and erred in principle by failing to consider his treatment prospects of the
designation stage. As
Boutilier
(SCC) makes clear, before making a
dangerous offender designation, the sentencing judge must be satisfied that the
offender poses a high likelihood of harmful recidivism and that his conduct is
intractable. This necessarily involves a consideration of future treatment
prospects. The need to consider treatment prospects at the designation stage
applies to dangerous offender applications premised on ss. 753(1)(a) and
753(1)(b):
R. v. Skookum
, 2018 YKCA 2 at para. 57

[74]

The issue in this case is, therefore, whether the judge engaged in the
required prospective assessment of risk at the designation stage by considering
the appellants treatment prospects.

[75]

As Justice Saunders pointed out in
R. v. Lawrence
, 2019 BCCA
291 at para. 60, it is not a truism that designations made after the new
legislation was enacted but before
Boutilier
[(SCC)] contain the 
Boutilier
error
of failing to apply a prospective [risk] analysis. In
Lawrence
, the
Court was satisfied that the sentencing judge engaged in a prospective
assessment of risk by considering the appellants treatment prospects at the
designation stage despite not having the benefit of
Boutilier
(SCC).
Similar conclusions were reached in
R. v. Hexamer
, 2019 BCCA 285 at paras. 187199,
and
R. v. Wesley
, 2018 ONCA 636 at paras. 1417. In other contexts,
pre‑
Boutilier
(SCC) dangerous offender designations were set
aside on appeal where a sentencing judge erred in principle by failing to
consider the offenders treatment prospects at the designation stage:
Skookum
at paras. 5758;
R. v. C.R.G
., 2019 BCCA 463 at para. 9;
R.
v. Zoe
, 2020 NWTCA 1 at para. 41.

[76]

If error in principle is established in the application of the test at
the designation stage, consideration must then be given to whether the error
resulted in any substantial wrong or miscarriage of justice:
Boutilier
(SCC)
at para. 82;
R. v. Sipos
, 2014 SCC 47 at para. 35;
R. v.
Johnson
, 2003 SCC 46 at para. 49. In this context, there is a heavy
onus on the Crown to show that there is no reasonable possibility the resultin
this case, the dangerous offender designationwould have been different had the
error not been made. This Court has, on a number of occasions, applied its
curative power to dismiss an appeal in cases analogous to the one at bar:
R.
v. Malakpour
, 2018 BCCA 254 at paras. 9899;
R. v. Roper
, 2019
BCCA 68 at paras. 8490;
R. v. Awasis
, 2020 BCCA 23 at paras. 110112.

[77]

To determine whether a 
Boutilier
error was committed in the
case at bar, close attention must be paid to the analysis actually undertaken
by the sentencing judge at the designation stage.

[78]

Following this Courts judgment in
Boutilier
at para. 62 and
the reasoning in
R. v. Szostak
, 2014 ONCA 15 at para. 36 (rejected
in
Boutilier
(SCC) at paras. 2931), the judge said that
treatment prospects played a limited role of the designation stage:

[173]    On the present state of the law as enunciated in
Szostak
, and the Court of Appeals decision in
Boutilier

the possibility of successful treatment is of
limited application in determining whether an offender is a dangerous offender.
Rather, the possibility of successful treatment is significant in choosing the
appropriate disposition.

[Emphasis added.]

[79]

Standing alone, this statement reflects error in law. But it does not
stand alone. Despite saying that treatment prospects play a limited role at the
designation stage, the judge embarked on a considered analysis of whether the
appellant had an intractable mental disorder that would likely be impervious to
treatment intervention. He thoroughly reviewed the expert evidence. Writing under
the heading, 
Has the Crown established that [the appellant] is a dangerous
offender?
 and subheading 
Is [the appellant] genuinely motivated and
amenable to rehabilitative treatment?
, the judge said this:

[177]
To the extent that I may undertake a limited
inquiry into the issue of treatability at the designation stage
I find that
the totality of the evidence requires a finding that while [the appellant] may
at times pay lip service to a willingness to engage in treatment to address the
causes of his sexual offending against children -- as he expressed to Mr. MacNeil
 the genuineness of that willingness is highly suspect.

[178]    Both Dr. Hervé and Mr. MacNeil have
opined that [the appellant] meets the DSM‑5 criteria necessary for the
diagnoses of a Pedophilic disorder of the non‑exclusive type.

[179]    Both experts also agree that the greatest risk
of [the appellant] re‑offending sexually against children as he has in
the past is with respect to prepubescent female children with whom [the
appellant] is in a familial or similarly close adult‑child relationship.

[180]    [The appellant] has demonstrated in his
evidence at trial, in his interviews with Dr. Hervé, and Mr. MacNeil
and in his letters to Crown counsel to which I have referred the belief that:
he is not a pedophile and that others are; that he is a protector of children,
not a predator; and, that he understands childhood development and sexuality
better than medical or other professionals.

[181]    As far as I am aware [the appellant] continues
to make those assertions and has never espoused a different or ameliorated view
of his offending.

[182]    Perhaps the most disturbing of the evidence
related to the prospect for effective rehabilitative treatment to address the
pedophilic causes of his offending identified by both Dr. Hervé and Mr. MacNeil
is that found in [the appellants] letter to Crown counsel  He writes
that he will take treatment programs to gain knowledge of the treatment
available so that he can credibly pose as a pedophile for the purposes of his
proposed secret society to be created so that, as a protector of children, he
can expose pedophiles.

[183]
The totality of the evidence satisfies me
that [the appellant] is not genuinely motivated for rehabilitative treatment
and that in those circumstances together with his long standing and still
continuing obsession with childhood sexuality and prepubescent female children
it is highly unlikely that any treatment will be successful in addressing the
root causes of his criminal offending.

[184]
That evidence also leads me to conclude that
given his conduct in the commission of the predicate offences and the pattern
of his sexual offending against children since 2001 it is highly unlikely that
any treatment he may receive will in future restrain his behaviour or control
his sexual impulses against prepubescent female children.

[Emphasis added.]

[80]

Before making the dangerous offender designation, the judge, as I read
his reasons, concluded that the appellants deviant predilections are
intractable and that, while he can be managed in the community through close
supervision, the evidence established the likelihood that he will in the future,
as he has in the past, be unable to control his sexual impulses:

[192
]    To that extent, I find that Mr. MacNeils
opinion that the high risk that [the appellant] will in future re‑offend
against prepubescent female children is limited to situations where he is in
the community unsupervised, without restrictions and having access to children
within a home environment
conflates issues of control with issues of
intractability.



[194]    In those circumstances I am satisfied that
notwithstanding the evidence of [the appellants] past performance while under
supervision does establish a reasonable expectation for his control and the
protection of the public,
it does not overcome the likelihood that he will
in the future fail to control his sexual impulses as he has in his offending
against his four nieces that is the subject of the predicate offences as well
as in his sexual offending against C in 2001.

[195]    The totality of the evidence adduced at trial and
during this Part XXIV sentencing hearing, in combination with concessions
and admissions made by [the appellant] identified by me in para. 49 of
these reasons establishes that by application of s. 752(1)(b) of the
Code
[the appellant] must be designated as a dangerous offender.

[Emphasis added.]

[81]

In my view, the analysis undertaken by the judge at the designation
stage is consistent with the requirements of
Boutilier
(SCC).

[82]

But I need not rest my conclusion on this point. Even if the judge
committed a 
Boutilier
error, on the record before him and on the
factual findings he made, I am satisfied there is no reasonable possibility
that the Crowns application to have the appellant designated a dangerous
offender would have been resolved differently had the error not been made. As
the result was inevitable, I would, if necessary, apply the equivalent of the
curative proviso to sustain the designation.

Ground #2:  Failure to
Consider the Prospect of Control in the Community at the Designation Stage

(a) The
Judges Approach

[83]

The judge determined that the efficacy of community‑based controls
to manage risk is a relevant consideration at the penalty stage of a dangerous
offender application:

[188]     The issue of
dangerousness is determined at the designation stage based upon proof that the
offender meets the statutory criteria for a finding that he or she is a
dangerous offender. The issue of whether there is a reasonable expectation of
control in the community is a part of the inquiry at the disposition stage.

As noted earlier, the judge
resisted conflating the issue of intractability and the likelihood of harmful
recidivism (relevant at the designation stage) with the issue of control (relevant
at the penalty stage).

(b) The
Positions of the Parties

[84]

The appellant argues that the sentencing judge
erred by failing to consider the prospect of control in the community at the
designation stage. Relying on
Boutilier
(SCC) for the proposition
that treatment prospects are relevant at the designation stage, the appellant
submits there is no principled basis to distinguish between treatment that
fosters in an offender the development of internal behavioural controls, and externally
imposed supervisory conditions that permit an otherwise intractable offender to
be safely managed in the community. The appellant submits that whether the
management of risk is achieved through the internalization of gains made in
treatment or through externally imposed supervisory controls, both achieve the
same goalprotection of the public. As such, he submits there should be no bright
line between an offenders treatment prospects and the efficacy of externally‑imposed,
community‑based controls at the designation stage. In essence, the
appellant asks us to accept, based on the reasoning in
Boutilier
(SCC),
that an offender with a pathologically intractable behavioural disorder who has
been found highly likely to engage in harmful acts of recidivism cannot be
designated a dangerous offender if he or she can be managed in the community
through the imposition of strict supervisory conditions and close monitoring.

[85]

The Crown submits that the prospect of control
in the community through the imposition of external controls is only appropriately
considered at the penalty stage and that the judge made no error in so concluding.
The Crown argues that this is entirely consistent with the legislative scheme,
the holding in
Boutilier
(SCC), and subsequent appellate and trial
court authorities on point.

(c) Analysis

1.
R. v. Johnson
and the 1997 legislation

[86]

In
R. v. Johnson
, the Court considered
the effect of the 1997 amendments to the
Code
which enacted the
long‑term offender provisions and required an indeterminate sentence for
an offender designated as dangerous
.

[87]

Under the 1997 scheme, a sentencing judge had
discretion at the designation stage whether or not to designate an offender dangerous
even if all the statutory criteria were met. However, the judge had no
discretion at the penalty stage. If the sentencing judge made a dangerous
offender designation, the judge was required to impose an indeterminate
sentence.

[88]

With the introduction of the long‑term
offender provisions, the Court determined that if an offender could be managed
in the community through a long‑term supervision order, then the offender
should not be designated as dangerous. The Court held that if the public threat
posed by an offender could be reduced to an acceptable level through either a
determinate sentence or a determinate sentence followed by a long‑term
supervision order, a sentencing judge could not properly declare an offender
dangerous and sentence him or her to an indeterminate period of incarceration
(at para. 32).

[89]

Given the absence of discretion at the penalty
stage of the proceeding, the 1997 scheme was found in
Johnson
to require
sentencing judges to consider the prospect of control in the community at the
designation stage (at para. 36):

[P]rospective factors, including the
possibility of eventual control of the risk in the community, must be
considered at some point leading up to a dangerous offender designation.
This
is necessary to ensure that an indeterminate sentence is imposed only in those
circumstances in which the objective of public protection truly requires
indeterminate detention.

[Emphasis
added.]

[90]

Until the 2008 amendments to the dangerous
offender provisions, the manageability of an offender in the community was,
therefore, considered at the designation stage.

2.
R. v. Boutilier
and the 2008 legislation

[91]

In
Boutilier
(SCC), the Court considered
the effect of the 2008 amendments to the dangerous offender provisions
.
The amendments shifted the discretion reposed in a sentencing judge
from the designation stage to the sentencing stage. If an offender met the
statutory criteria for a dangerous offender designation, the sentencing judge
was obliged to designate the offender as dangerous:
Boutilier
(SCC)
at para. 41. However, even if the offender was made the subject of a
dangerous offender designation, the sentencing judge was given discretion under
the 2008 amendments to impose a proportionate sentence at the penalty stage:

[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
.

[92]

The 2008 amendments replaced the mandatory
indeterminate period of imprisonment required under the 1997 scheme with
a codification of the principle [established in
Johnson
] that a
sentencing judge must [retain the ability to] impose a sentence that is
tailored to the specific offender and consistent with the principles of
sentencing:
Boutilier
(SCC) at para. 61. The legislation now expressly
contemplates that an offender may be declared dangerous, but sentenced to a
determinate sentence or a determinate sentence followed by a long‑term
supervision order if the offender can be controlled in the community in a
manner that adequately protects the public:
Boutilier
(SCC) at para. 60.

[93]

A central issue in
Boutilier
(SCC) was
whether, after the 2008 amendments, an offenders treatment prospects were
to be considered at the designation stage. The Court concluded that while
evidence of an offenders future treatment prospects is relevant to both the
designation and penalty stages, manageability of the offender in the community is
only to be considered at the penalty stage:

[31]       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
offenders behaviour can be adequately managed outside of an indeterminate
sentence.

[Emphasis
added.]

In the result, the Court held that the 2008 amendments were
constitutional because a sentencing judge retained discretion at the penalty
stage to impose a proportionate sentence.

3.   Prospect of control in the community should only
be considered at the penalty stage

[94]

There are a number of reasons why the efficacy
of community‑based controls in managing an offenders risk should be
considered only at the penalty stage.

[95]

First, the interpretive proposition advanced by
the appellantthat an offender who can be managed in the community through the
imposition of community‑based controls can never be declared dangerousis
inconsistent with the legislative scheme and the obvious intention of
Parliament.

[96]

The modern principle of statutory
interpretation was described by Elmer Driedger in
Construction of Statutes
,
2nd ed. (Toronto: Butterworths, 1983) and adopted by the Supreme Court of
Canada in
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27 at para. 21:

Today there is only one
principle or approach, namely, the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament.

[97]

The legislature does not intend to produce
absurd consequences, including those that are illogical or promote incoherence
in the scheme:
Rizzo Shoes
at para. 27.

[98]

Reading s. 753(1) to require consideration at
the designation stage of the prospect of achieving risk reduction through the
imposition of community‑based controls would render meaningless the
discretion afforded sentencing judges at the penalty stage. I say this for the
following reason. If consideration of the efficacy of community‑based
controls was required at the designation stage, it seems to me that no offender
could ever properly be declared dangerous but sentenced to something less than
an indeterminate period of incarceration. The designation and the sentence would
be logically inconsistent. And yet, ss. 753(4) and (4.1) of the
Code
expressly contemplate that an offender may be designated dangerous and be
sentenced to a determinate sentence or determinate sentence with a long‑term
supervision order. To endorse the proposition advanced by the appellant would,
therefore, fail to give effect to the scheme of the Act or the obvious intent
of Parliament. It would create disharmony in the scheme and lead to the absurd
result that Parliament provided for certain sentencing options short of
indeterminate incarceration for offenders designated as dangerous that could
never logically be reached. It would, in effect, require us to bring to the
legislative scheme an interpretation that is tantamount to judicial rewriting
of the legislation.

[99]

Second, there is, in my view, nothing in
Boutilier
(SCC)
that supports the appellants submission concerning the scope of the inquiry
that is required at the designation stage. Indeed, that case supports the
proposition that the prospect of the community‑based management of risk
informs only the penalty stage of the proceedings. Writing for the majority,
Justice Côté explained that in order to obtain a dangerous offender
designation the Crown must prove beyond a reasonable doubt that: the offender
has been convicted of a serious personal injury offence; the predicate offence
is part of a broader pattern of violent behaviour; there is a high likelihood
of harmful recidivism; and that the violent conduct is intractable (at para. 26).
Intractable conduct means behaviour the offender is unable to surmount (at para. 27).
Nowhere in her analysis did Côté J. suggest that the prospect of community‑based
control through the imposition of a sentence short of an indeterminate period
of incarceration is relevant
at the designation stage
. Indeed, she
repeatedly emphasized in her reasons that whether the risk an offender poses can
be adequately managed other than through the imposition of an indeterminate
sentence is an issue that arises
at the penalty stage
(see
Boutilier
(SCC)
at para. 31, quoted herein at para. 93, and at paras. 68 and
76). In my view,
Boutilier
(SCC) establishes that the prospect of
control through the community‑based management of risk is relevant at the
penalty stage, not the designation stage.

[100]

To
summarize, public protection may be achieved where an offender is able to
internalize the benefit of treatment, implement strategies for self‑regulation,
and thereby surmount his or her violent tendencies. It would clearly be
inappropriate to designate such an offender as dangerous. Alternatively, public
protection may be achieved even in the case of an intractable offenderone who
is unable to surmount their behavioural disorderwhere the imposition of community‑based
controls will adequately protect the public from the risk of harmful
recidivism. This is a separate inquiry distinct from the questions of
intractability and the likelihood of harmful recidivism that animate decisions at
the designation stage. E
vidence respecting an offenders
treatment prospects is relevant, albeit for different purposes, at both the
designation and penalty stages.

As pointed out
in
Boutilier
(SCC), even where an offenders treatment prospects
are not sufficiently compelling to obviate the need for a dangerous offender
designation, they will still be relevant in choosing the sentence required to
adequately protect the public (at para. 45). The prospect of managing the
threat posed by an intractable, high‑risk offender through a sentence
less draconian than indeterminate incarcerationone that allows for the
imposition of externally‑imposed supervisory conditionsis, however, an
inquiry reserved to the penalty stage.

[101]

Third, reserving consideration of the prospect
of control in the community to the penalty stage is an approach that has been
consistently endorsed by appellate and trial courts:
Awasis
, at paras. 7173;
R. v. Smarch
, 2020 YKCA 7 at para. 4;
R. v. K.P.
, 2020 ONCA
534 at paras. 1314;
R. v. Piche
, 2019 SKCA 54 at paras 98102;
R.
v. S.P.C.
, 2018 SKCA 94 at paras. 3839; and
R. v. Broadfoot
,
2018 ONCJ 215 where Justice Greene put it this way:

[77]       At
the designation stage, intractability relates to whether or not the conduct can
be treated. At the sentencing stage, the court has found that the conduct
cannot be treated so the question becomes can the conduct be managed.

[102]

For the foregoing reasons, I conclude that the sentencing judge did
not err in principle by failing to consider at the designation stage the
prospect of controlling the appellants intractable conduct in the community
through the imposition of a sentence other than indeterminate incarceration.

Ground #3:  Fitness
of the Sentence Imposed for the Counts Involving K

[103]

As previously noted, the appellant was found guilty of four counts
involving Ktwo counts of sexual assault and two companion counts of
sexual interference. The offences consisted of two incidents separated in
time. The circumstances of the offences are set out herein at paragraph 22.

[104]

The Crown sought the entry of convictions on the two sexual assault
counts, an order conditionally staying the two sexual interference counts
pursuant to
Kienapple
, and concurrent sentences of two years on each sexual
assault count, to be served consecutively to the sentences imposed on other
counts involving different victims. The appellant agreed with the Crowns
position on the application of
Kienapple
, but submitted that the appropriate
sentence for the offences against K was 1218 months imprisonment.

[105]

Given the uncertainty of the timing of the two offences committed
against K, the Crown conceded that the one‑year mandatory minimum sentences
for sexual assault of a person under the age of 16 years and sexual
interference (where the Crown proceeds by indictment) that came into force on
August 9, 2012, were not applicable to the appellant. I would add,
parenthetically, that reasons were released in this case before the mandatory
minimum sentence in s. 151(a) was found to be unconstitutional:
R. v.
Scofield
, 2018 BCSC 91, affd 2019 BCCA 3.

[106]

As the sentencing hearing proceeded, the Crown and the appellants
counsel agreed to amend Count 14 to include both instances of sexual
assault against K. In light of the proposed amendment, the Crown agreed that
Count 16 (the other sexual assault count) could be conditionally stayed.
The sentencing judge appeared to convey his approval noting that what had been
proposed was, the appropriate disposition. The proposal did not affect the
sentencing positions of either party. The Crown sought a two‑year
sentence for the offences committed in relation to K. The appellant continued
to seek a sentence in the range of 12 to 18 months imprisonment.

[107]

On further reflection, the judge made a considered decision to give
effect to the
Kienapple
principle by conditionally staying the sexual
assault counts rather than the sexual interference counts.

[108]

The judge sentenced the appellant to 12 months imprisonment on
each of the sexual interference counts in relation to K, to be served
consecutively to each other and to the sentences imposed on the other counts.
He declined to impose concurrent sentences on these two counts noting that the
offences were not committed at the same time and because of the appellants
persistence in his offending against K while living in her home.

[109]

Importantly, the judge noted that the sentence he was imposing on
each count reflected what he understood to be the required mandatory minimum
sentence. As the Crown had acknowledged its inability to prove that the
offences committed against K took place after the mandatory minimum sentences
came into force, the judge fell into error on this issue.

[110]

The appellant submits that in imposing a total
sentence of two years imprisonment on the K counts, the judge erred in
principle by:

i.   sentencing
him on two counts in relation to K in the face of the agreement by counsel that
sentence could be imposed on a single count combining both instances of sexual
abuse;

ii.   sentencing
him on the basis that a one‑year mandatory minimum sentence applied to
the offending conduct; and

iii.  sentencing him on the basis of an unproven aggravating
factorthat he was living in the home in which K resided when the offences were
committed.

[111]

The Crown concedes that the judge erred in principle in sentencing
the appellant on the understanding that the offences attracted a one‑year
mandatory minimum term of imprisonment. The Crown also concedes that the error
had a material impact on the sentence. In the result, the Crown invites this
Court to perform its own sentencing analysis to determine a fit sentence for
the offences committed against K, giving deference to the factual findings made
by the judge.

[112]

I agree that the judge committed an error in principle in proceeding
on the footing that he was required to impose at least the mandatory minimum
term of imprisonment on each of the K counts. I will, for the purposes of this
analysis, accept the Crowns concession that the error had a material impact on
the sentence imposed on these counts. As a consequence, it is necessary for
this Court to consider afresh the sentence that should be imposed in relation
to the K counts having regard to the factual findings made by the judge concerning
the circumstances of these offences, the larger context in which they occurred
and the likelihood that, unless he is controlled by strict conditions, the appellant
will sexually abuse prepubescent girls in the future.

[113]

In light of the conclusion I have reached on this point, it is
unnecessary to consider in any detail the first and third errors in principle
alleged by the appellant. But I am not persuaded the judge erred in principle
on either issue.

[114]

With respect to the first alleged error in principle, the appellant
acknowledges that it was open to the sentencing judge to depart from the
agreement of counsel that sentence be imposed on a single count of sexual
assault. He asserts, however, that if the judge was inclined to proceed in this
fashion, it was incumbent on him to alert counsel to this and provide them with
an opportunity to make submissions informed by the counts in respect of which
sentence would be imposed. I make two observations in response to the
appellants complaint. First, after counsel advised the judge of their
agreement that sentence could be imposed on a single count of sexual assault
encompassing both incidents, the appellants counsel took the position that
nothing turned on whether the sexual assault count or the sexual interference
counts were conditionally stayed pursuant to
Kienapple
. Second, the
appellant has suffered no irremediable prejudice by the manner in which this
issue unfolded in the sentencing court. Any theoretical prejudice has been
remedied by the full opportunity the appellant has been given in this Court to
address the fitness of the sentences imposed on the K counts.

[115]

With respect to the third alleged error in principle, this Court is not
in a position to definitively resolve whether the appellant was living in Ks
home when he abused her. We have not been taken to Ks evidence at trial on
this issue. The appellant has the onus of establishing error in principle. In
my view, that onus has not been met on the materials before us.
Parenthetically, I would add that the appellant appears to have admitted to Dr. Hervé
that he was living with Ks parents in her home when at least one of the
incidents of sexual abuse occurred.

[116]

I turn next to consider the fitness of the two‑year cumulative
sentence imposed on the appellant for the two counts of sexual
interference committed against K.

[117]

The authorities relied on by the appellant in support of his
contention that concurrent sentences of 12 months imprisonment on
each of the two counts involving K would be fit and appropriate predate the
release of judgment in
Friesen
. They are, for this reason, of limited
assistance.

[118]

In
Friesen
, the Court acknowledged the
prevalence of sexual violence against children, the disproportionate impact
these offences have on girls and young women, and the lasting harms caused by
this type of criminal conduct. The Court reiterated in the strongest of terms
that the sexual exploitation of children is morally reprehensible conduct that
must be reflected in the application of the proportionality principle. As the
Court put it:

[76]      Courts must impose
sentences that are commensurate with the gravity of sexual offences against
children. It is not sufficient for courts to simply state that sexual offences
against children are serious. The sentence imposed must reflect the normative
character of the offenders actions and the consequential harm to children and
their families, caregivers, and communities (see
M. (C.A.),
at para. 80;
R. v. Morrisey
, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We
thus offer some guidance on how courts should give effect to the gravity of
sexual offences against children. Specifically, courts must recognize and give
effect to (1) the inherent wrongfulness of these offences; (2) the potential
harm to children that flows from these offences; and, (3) the actual harm that
children suffer as a result of these offences. We emphasize that sexual
offences against children are inherently wrongful and always put children at
risk of serious harm, even as the degree of wrongfulness, the extent to which
potential harm materializes, and actual harm vary from case to case.

[119]

While sentencing is an individualized exercise, the Court noted that
sexual offences against children, will frequently require substantial
sentences to reflect the high moral culpability of the offender, the
consequential harm caused by their conduct, and the need to give effect to
Parliaments direction that offences of this kind be treated more severely with
the primary goals of general deterrence and denunciation firmly in mind (at paras. 100,
105 and 114). Without purporting to fetter the ability of a sentencing judge to
do justice in individual cases, the overall message to be taken from
Friesen
is clear: that mid‑single digit penitentiary terms for sexual offences
against children are normal and that upper single‑digit and double‑digit
penitentiary terms should be neither unusual nor reserved for rare or
exceptional circumstances: at para. 114. In addition, the Court
emphasized that it is an error in law to treat sexual interference as less
serious than sexual assault: at para. 120.

[120]

The Court helpfully reiterated a non‑exhaustive list of
factors that will significantly impact the determination of a fit sentence in a
case of this kind, including: the offenders risk to reoffend; whether the offence
involved abuse of a position of trust or authority; the duration and frequency
of the sexual violence engaged in by the offender; the age of the victim(s);
and the degree of physical interference that characterizes the offending acts:
at paras. 122147.

[121]

In applying these factors to the case at bar I note, first, that the
appellant has an intractable deviant disorder and, absent close and long‑term
community supervision, has been found to be a high risk to engage in harmful
recidivism against prepubescent girls. His offending conduct spans more than a
decade. He is untreated and the judge found it highly unlikely that any
treatment will successfully achieve the goal of risk reduction. The judge could
not reasonably have come to any other conclusion. Whether as a function of his
disorder or the product of his enduring and self‑protective narrative,
the appellant has yet to demonstrate that he understands either the
wrongfulness of his behaviour or the harm he has caused. Given the appellants
complete lack of insight, the need to protect children from the risk of re‑offence
is palpable. As the Court noted in
Friesen,
where an offender presents
an increased likelihood of reoffending, the imperative of preventing further
harm to children calls for emphasis on the sentencing objective of separating
the offender from society in s. 718(c) of the
Criminal Code
: at para. 123.

[122]

The appellant was Ks uncle and the offences he committed
against her constituted a gross breach of his position of trust. As the
sentencing judge put it, the appellant was in a position of trust and
authority over each [victim], having been given the responsibility to protect
his victims by their own parents. He abused that trust, and the trust reposed
in him by the victims, by secretly grooming them for his own sexual purposes.
The abuse of a position of trust is an aggravating factor because it enhances
the offenders moral culpability and is likely to increase the harm to the
victim (
Friesen
at paras. 126, 129).

[123]

The appellant sexually interfered with K on two occasions.
The judge described the appellants predatory behaviour in relation to her as persistent.
Like the other victims, the appellant was clearly grooming K for future sexual
abuse. This, too, is a significant aggravating factor. As explained in
Friesen
:

[133]     sexual violence
against children that is committed on multiple occasions and for longer periods
of time should attract significantly higher sentences that reflect the full
cumulative gravity of the crime. Judges cannot permit the number of violent
assaults to become a statistic. Each further instance of sexual violence
traumatizes the child victim anew and increases the likelihood that the risks
of long‑term harm will materialize. Each further instance shows a
continued and renewed choice by the offender to continue to violently victimize
children.

[124]

K was between six and nine years of age when she was violated by the
appellant. She was a child, dependent on others for her physical protection and
emotional security. As noted in
Friesen
, the age of the victim is
relevant to both the gravity of the offence and the degree of responsibility of
the offender: at para. 135. The appellant recognized and exploited Ks
vulnerability. His moral blameworthiness is extremely high.

[125]

Without in any way diminishing the seriousness of the appellants
conduct or the moral culpability that attaches to it, the offences against K
were the least physically intrusive of all of the offences committed by the
appellant. This is a factor to be taken into account. At the same time, the
Court in
Friesen
emphasized that any manner of physical sexual contact
between an adult and a child is inherently violent and has the potential to
cause harm: at para. 82. In addition, the Court cautioned against
downgrading the wrongfulness of the offence or the harm to the victim where the
sexually violent conduct does not involve penetration, fellatio or cunnilingus,
but instead touching or masturbation: at para. 144.

[126]

Finally, the appellants violation of K did not occur in isolation.
It formed part of a pattern of cunning and clandestine behaviour engaged in by
the appellant to sexually exploit children over a very lengthy period of timechildren
who were vulnerable by virtue of their tender years and dependency on the
appellant. The sentence imposed on the K counts must reflect the context in
which these offences occurred and give proper expression to his elevated moral
culpability and the applicable sentencing objectives informed by that context;
chief among them, the protection of the public.

[127]

While it was open to the judge to impose sentences concurrent to
each other on the two counts involving K, he chose not to do so. The appellant
does not suggest error in principle in the way the judge determined to exercise
his discretion on this issue.

[128]

In light of the material error in principle committed by the judge
in relation to the K counts, the Court is not bound by the highly deferential
standard of review ordinarily applicable on appeals from sentence:
Lacasse
at para. 61;
Agin
at para. 55.

[129]

The question for this Court to answer boils down to this: is a two‑year
sentence imposed on an unremorseful, untreated, serial sexual abuser of prepubescent
children unfit for two counts of sexual interference committed in relation
to the offenders 6 to 9‑year‑old niece? To state the
question is to answer it. There is nothing unfit about the sentences imposed on
these two counts. I would add that the overall determinate sentence imposed on
the appellant reflects considerable restraint; it could have been much longer.

IV. The Judges Reliance on Section 753(1)(b)
to Ground the Dangerous Offender Designation

[130]

While the Crown argued that a dangerous offender designation was
justified under s. 753(1)(a)(i) and (ii) and s. 753(1)(b)
of the
Code,
the judge found the appellant to be a dangerous offender by
application of s. 753(1)(b).

[131]

Resort to s. 753(1)(b) is premised on an offender having been
convicted of a serious personal injury offence described in paragraph (b)
of the definition of that phrase set out in s. 752. Paragraph (b) of
the definition of serious personal injury offence in s. 752 means an
offence or an attempt to commit an offence of sexual assault (s. 271)
sexual assault with a weapon (s. 272) or aggravated sexual assault (s. 273).
The judge conditionally stayed the sexual assault counts and entered
convictions on counts alleging sexual interference (s. 151) and/or
invitation to sexual touching (s. 152). Sexual interference and invitation
to sexual touching are not enumerated offences under paragraph (b) of the
definition of serious personal injury offence in s. 752.

[132]

Although the issue was not raised by the appellant, the Crown
alerted the Court to the question of whether it was open to the judge to
declare the appellant a dangerous offender under s. 753(1)(b), having
determined to conditionally stay the sexual assault counts.

[133]

In my view, it is unnecessary to express an opinion in this case on
whether the legislation permits a designation under s. 753(1)(b) in
circumstances where an offender was found guilty of both sexual assault and
sexual interference/invitation to sexual touching counts, but the sexual
assault counts were stayed pursuant to
Kienapple
. Even assuming error in
principle on this point, I would, if necessary, exercise this Courts curative powers
to uphold the designation under s. 753(1)(a). I am satisfied that, had the
judge turned his mind to this issue, it is inevitable the appellant would have
been designated a dangerous offender under s. 753(1)(a) given: the
appellants concession that sexual interference is a serious personal injury
offence under paragraph (a) of the definition of that phrase in s. 752;
his further concession that all of the criteria under s. 753(1)(a)(i) and
(ii) had been established by the Crown, with the exception of the likelihood of
re‑offence; and the sentencing judges factual finding that the appellant
was unable to surmount his violent conduct and, absent close community
supervision and control, was highly likely to engage in similar harmful acts in
the future.

V.  Disposition

[134]

For the foregoing reasons, I would dismiss the appeal from the
dangerous offender designation and from the determinate sentence imposed under
s. 753(4)(b) of the
Code
.

The Honourable Mr. Justice Fitch

I AGREE:

The
Honourable Chief Justice Bauman

I AGREE:

The Honourable Madam Justice Fenlon


