



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sawyer, 2015 ONCA 602

DATE: 20150909

DOCKET: C55196

Tulloch, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Sawyer

Appellant

Jill Presser and Andrew Menchynski, for the appellant

Susan Magotiaux, for the respondent

Heard: February 26, 2015

On appeal from the indeterminate sentence entered by Justice
    K. A. Gorman of the Superior Court of Justice on September 28, 2011.

Tulloch J.A.:

OVERVIEW

[1]

The appellant pled guilty to one count of sexual interference under
    s.151 of the
Criminal Code
, R.S.C. 1985, c. C-46, in 2010. The Crown
    applied to have him designated a dangerous offender. At his sentencing hearing,
    the main issue was whether the appellant should be sentenced to an indefinite
    term of imprisonment or whether there was a reasonable expectation that a
    lesser measure, a definite term of imprisonment followed by a long-term
    supervision order, would adequately protect the public. The sentencing judge
    concluded that the appellant was a dangerous offender and sentenced him to an
    indefinite term of imprisonment.

[2]

The appellant challenges his indeterminate sentence and makes three
    arguments:

·

The sentencing judge misapprehended various aspects of the
    evidence;

·

The sentencing judge failed to apply a forward-looking test; and

·

The sentencing judges conclusion that there was no reasonable
    expectation that a lesser measure would adequately protect the public was
    unreasonable.

[3]

The appellant has also applied for leave to adduce fresh evidence
    relating to his treatment with sex-drive reducing medication.

[4]

I would reject each of the appellants arguments and dismiss the appeal.
    I would also dismiss the fresh evidence application, as the appellants
    proposed fresh evidence does not meet the criteria set out in
Palmer v. The
    Queen
, [1980] 1 S.C.R. 759, and is therefore not admissible. In any event,
    the appellants fresh evidence is more appropriately a matter for the parole
    authorities.

FACTS

[5]

The offence to which the appellant pleaded guilty and which led to the
    dangerous offender proceedings occurred in 2009.The appellant befriended the
    mother of eight-year-old A.G. He began to babysit A.G. and her siblings. The
    children slept over at his home and A.G. slept in the appellants bed. On at
    least three occasions, the appellant put his hands down A.G.s pants, touched
    her genitals and digitally penetrated her vagina and anus. On one occasion, he
    made A.G. touch his penis. On more than one occasion, she awoke to find him
    performing oral sex on her.

[6]

About a month passed before a neighbour, suspecting abuse, contacted the
    police and the Childrens Aid Society. The appellant was arrested that day. He
    was 53 years old at the time of the offence. The appellant has a long history
    of sexually abusing young girls.

[7]

In 1982, the Childrens Aid Society received a complaint that the
    appellant was sexually abusing his niece. The appellant admitted the
    allegations. The police investigated, but did not lay charges. Around the same
    time, there was a similar allegation, also admitted by the appellant, that he
    sexually abused the young daughter of a family friend.

[8]

In the early 1980s, the appellants biological daughter, A., disclosed
    that the appellant had been sexually abusing her. The Childrens Aid Society
    found the disclosure credible, and placed her in foster care. At the
    appellants sentencing hearing, A. testified that she could only recall one
    incident of sexual abuse. She stated that when she was older, she discussed the
    incident with the appellant, and he admitted to other incidents. He blamed her
    for the abuse.

[9]

From this point until 2000, the Childrens Aid Society was heavily
    involved in the appellants life. Several Childrens Aid Society employees met
    with the appellant, his wife, his children, and his step-children during this
    period to ensure he was following the terms of a court order prohibiting him
    from being left alone with the children and to ensure he was not sexually
    abusing children. Some of these individuals testified at the appellants
    sentencing hearing, and noted his ability to manipulate people in authority and
    his victims to ensure his abuse went undetected.

[10]

Despite
    the regular involvement of the Childrens Aid Society, the appellant sexually
    abused his stepdaughter, E., over a six-year period. The appellant touched E.s
    breasts and genitals about three times a week. At one point E. disclosed the
    abuse, but recanted a month later.

[11]

In
    1997, E. again disclosed the abuse. This time, charges were laid against the
    appellant. In 2000, he was convicted of sexual interference for his abuse of E.
    He was sentenced to three years in the penitentiary, and obtained extensive
    treatment and counselling while incarcerated.

THE EXPERT EVIDENCE AT THE SENTENCING HEARING

[12]

Dr.
    Lisa Ramshaw provided a report and testified at the appellants sentencing
    hearing. She diagnosed the appellant with a pedophilic paraphilia, and a
    specific sexual preference for pre-pubescent girls. She also testified that the
    appellant has a personality disorder, not otherwise specified. He exhibits
    dependent and manipulative traits, as well as poor coping mechanisms.

[13]

Dr.
    Ramshaw testified that while sexual behaviour may change over time, it is
    unlikely for sexual preference to change. She concluded that there was a
    significant likelihood that the appellant would reoffend. It was her opinion,
    however, that a risk management system could be put in place that might manage
    the risk to the public.

[14]

The
    risk management system she proposed had six prongs.

[15]

First,
    she suggested treating the appellant with high-potency sex-drive reducing
    medication called Lupron. This medication would result in castration levels of
    testosterone, and would reduce both the appellants sex drive and sexual
    interest. However, exogenous testosterone, Viagra, or other erectile
    dysfunction medications could counteract the effects of Lupron. The appellant
    was prescribed Viagra in 2009. Dr. Ramshaw acknowledged that testing the
    appellant to see if he had been taking other drugs to counteract the medication
    could prove challenging. The drugs he might take to counteract the Lupron leave
    the bloodstream quickly. Random blood testing would provide the best means of
    monitoring the appellants compliance.

[16]

Dr.
    Ramshaw testified that the appellant told her he would be prepared to take
    sex-drive reducing medication if he could tolerate it medically. The appellant
    has several medical conditions including Crohns disease and diabetes. Dr.
    Ramshaw stated that Lupron was not contraindicated for the appellants
    conditions, and that it has the fewest side-effects of the various types of sex-drive
    reducing medications.

[17]

Second,
    she recommended that the appellant be placed in further sex offender treatment,
    including ongoing maintenance therapy once in the community.

[18]

Third,
    she suggested that the appellant participate in anger management therapy.

[19]

Fourth,
    she recommended that the appellant be closely monitored and supervised in the
    community. Because of his tendency to be manipulative, his self-reporting is
    not reliable. A supervising authority should corroborate his self-report by
    contacting collateral sources and conducting regular unannounced home visits.

[20]

Fifth,
    she recommended that any potential supervisors, counsellors, or future partners
    be made aware of the appellants history.

[21]

Sixth,
    she stressed that the appellant should never be in the presence of unsupervised
    minors, should not be near child-focused areas, and should disclose intimate
    relations to his supervisors.

DECISION BELOW

[22]

The
    sentencing judge designated the appellant a dangerous offender and imposed an
    indeterminate sentence of imprisonment subject to parole review. She found that
    the appellant had demonstrated a pattern of repetitive predatory sexual
    behaviour. While the appellant had been counselled, first by the Childrens Aid
    Society, and then while incarcerated for sexually abusing E., the sentencing
    judge found that it was all to no avail. She held that it was clear the
    appellant was unable to restrain his behaviour, and that there continued to be
    a strong likelihood of his causing injury, death, or severe psychological
    damage to others.

[23]

The
    sentencing judge rejected the defences contention that the risk could be
    adequately controlled in the community if the appellant was supervised,
    continued counselling, and took Lupron. She noted that the appellant had
    offended over a 30-year period with victims inside and outside his family. He
    continued to offend despite intensive supervision and counselling. He had
    reported his sex drive was already low in 2009, yet had sexually abused A.G. during
    this time.

[24]

The
    sentencing judge acknowledged that the appellant had expressed willingness to
    take Lupron, but his assertion was untested. The Parole Board could not enforce
    medical intervention. The sentencing judge observed that none of the
    appellants previous sexual assaults involved penile penetration. She concluded
    that the appellant was a skilled manipulator who continued to offend despite
    treatment, a diminished sex drive, and advanced age. She designated him a
    dangerous offender and sentenced him to an indefinite term of imprisonment.

GROUNDS OF APPEAL

·

Did the sentencing judge misapprehend the evidence?

·

Did the sentencing judge fail to apply a forward-looking test?

·

Was the sentencing judges conclusion that there was no
    reasonable expectation that a lesser measure would adequately protect the
    public unreasonable?

DISCUSSION

[25]

Below,
    I set out the standard of review for a dangerous offender designation as well
    as the general principles governing the designation of an offender as
    dangerous and the imposition of an indeterminate sentence. I then address
    each of the appellants grounds of appeal in turn. In my view, the sentencing
    judge did not misapprehend the evidence nor did she fail to apply a
    forward-looking test. Her decision to impose an indeterminate sentence was not
    unreasonable. Finally, I address the appellants proposed fresh evidence and
    explain why it is my view that this evidence is not admissible.

A.

Standard of Review

[26]

Appellate
    review of a dangerous offender designation is concerned with legal errors and
    whether the dangerous offender designation was reasonable:
R. v. Sipos
,
    2014 SCC 47, [2014] 2 S.C.R. 423, at para. 23. While deference is owed to the
    factual and credibility findings of the sentencing judge, appellate review of a
    dangerous offender designation is more robust than on a regular sentence appeal:
Sipos
, at paras. 25-26;
R. v. Currie
, [1997] 2 S.C.R. 260, at
    para. 33.

[27]

Prior
    to the 2008 amendments to Part XXIV of the
Criminal Code
, the
    designation of an offender as dangerous would necessarily have resulted in the
    imposition of an indeterminate sentence. Now, the court has some discretion as
    to the sentence imposed, as discussed below. Whether this change results in a
    different standard of review for the dangerous offender designation as opposed
    to the sentence imposed has not been addressed in the jurisprudence and for the
    purposes of this appeal, it is not necessary for us to decide this issue.

[28]

In
    my view, nothing turns on the standard of review here and, in any event, the
    standard of review for the imposition of an indeterminate sentence is likely
    the same as the standard of review for a dangerous offender designation.
    Section 759(1) grants an offender who is found to be a dangerous offender or a
    long-term offender a right of appeal from a decision made under this Part on
    any ground of law or fact or mixed law and fact. The decision to impose an
    indeterminate sentence is made under this Part  Part XXIV  of the
Criminal
    Code
. In
Currie
, the Supreme Court interpreted an earlier version
    of this provision which also granted a right of appeal on any ground of law or
    fact or mixed law and fact and said the following at para. 33:

[T]he role of an appellate court is to determine if the
    dangerous offender designation was reasonable. I do not find the manifestly
    wrong or demonstrably unfit general sentencing standards  to be applicable
    to this situation. However, it is equally true that s. 759 cannot be
    interpreted as calling for the equivalent of a trial de novo on the dangerous
    offender application. Some deference to the findings of a trial judge is
    warranted. After all, credibility should be assessed and findings of fact
    should be made by the trier of fact.

[29]

In
    my view, as the right of appeal is identically worded, the Supreme Courts
    interpretation of the scope of appellate review in
Currie
applies
    equally to the imposition of an indeterminate sentence. Courts can review the
    imposition of an indeterminate sentence for legal error and reasonableness, but
    should defer to the factual and credibility findings of the trier of fact.

B.

General Principles

[30]

An
    indeterminate sentence is a preventative sanction, imposed on an offender in
    order to address an elevated risk of future offending:
Sipos
, at
    para. 19. It is designed to protect the public from an offender who poses a
    real danger of future violence:
R. v. Steele
, 2014 SCC 61, [2014] 3
    S.C.R. 138, at para. 29. An indeterminate sentence has a very significant
    impact on the offender, and accordingly, Parliament has provided that it should
    not be imposed unless there is no reasonable expectation that a lesser measure
    will be able to adequately protect the public: s. 753(4.1).

[31]

Section
    753 of the
Criminal Code
requires a judge to find an offender to be a
    dangerous offender on an application made by the Crown if the court is
    satisfied:

(a) that the offence for which the
    offender has been convicted is a serious personal injury offence  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 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  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.

[32]

Once
    the court concludes that an offender is a dangerous offender, it must impose a
    sentence of indeterminate detention unless it is satisfied  that there is a
    reasonable expectation that a lesser measure  will adequately protect the
    public against the commission by the offender of murder or a serious personal
    injury offence: s. 753(4.1). The lesser measures referred to in s. 753(4.1)
    are specified in ss. 753(4)(b) and (c) as either a determinate sentence for the
    offence plus a long-term supervision order for a maximum of ten years, or a
    sentence for the offence.

[33]

As
    a preliminary matter, the Crown argues the reasonable expectation standard
    reflects a new standard for risk. Prior to 2008, the scheme for dangerous
    offender and long-term offender designations operated differently. Putting it
    simply, the court used to have discretion over whether to designate an offender
    a dangerous offender even if the statutory criteria were met. The court would
    have to consider whether the individual could instead be designated a long-term
    offender, which required there to be a reasonable possibility of eventual
    control of the risk in the community: see
R. v. Johnson
, 2003 SCC 46,
    [2003] 2 S.C.R. 357.

[34]

Now,
    when a court considers whether to impose an indeterminate sentence on a
    dangerous offender, the question is whether there is a reasonable expectation that
    a lesser measure will adequately protect the public. The Crown argues that the
    reasonable expectation standard requires the risk to be controlled to a
    higher degree of certainty than a reasonable possibility.

[35]

Without
    deciding this issue, I note that the Manitoba Court of Appeal has held that the
    language of reasonable expectation imposes a different and higher standard
    than a reasonable possibility:
R. v. Osborne
, 2014 MBCA 73, 314
    C.C.C. (3d) 57, at paras. 73-74. In
Osborne
, the court accepted that a
    reasonable possibility is a belief that something
may
happen, whereas
    a reasonable expectation consists of a belief that something
will
happen (at para. 73). The Saskatchewan Court of Appeal and the British Columbia
    Court of Appeal have reached a similar conclusion, as have lower courts in
    Ontario: see
R. v. Bunn
, 2014 SKCA 112, 446 Sask. R. 184;
R. v.
    S.(D.J.)
, 2015 BCCA 111, leave to appeal to S.C.C. requested; see, for
    example,
R. v. Taylor
, 2012 ONSC 1025, [2012] O.J. No. 1564, at para.
    346, in which reasonable expectation was defined as 
a
    confident belief for good and sufficient reason based upon the quality and
    cogency of the evidence
 (emphasis in original).

[36]

I
    do not feel it is necessary to decide this issue at this time as the parties
    did not devote a significant amount of time to it in argument. The appellants
    primary submission was that it was not necessary to decide this issue. In my
    view, more extensive argument could be useful to understand how the standards
    here interact with the scheme for designating an offender a long-term offender.
    In any event, based on my conclusion that the appeal should be dismissed,
    nothing turns on this issue. The sentencing judge refers to reasonable
    possibility in her reasons. The parties used reasonable expectation and
    reasonable possibility interchangeably and did not argue before her that
    these standards are different. First, if the standards are different and
    reasonable expectation is stricter, the sentencing judge may have wrongly
    imposed the less stringent standard. But any error by the sentencing judge in
    employing a reasonable possibility standard could only have inured to the
    appellants benefit, as this would be the easier to meet of the two standards.
    Second, if the standards are the same, the sentencing judges reasons do not indicate
    any error.

[37]

The
    Crowns position is that even if the standards are the same, the reasonable
    possibility standard was not met on the facts of this case. I agree. It is
    important to note that the law is clear that a reasonable possibility does not
    mean a mere possibility or a hope that the risk might be controlled in the
    community: see
R. v. McCallum
(2005), 201 C.C.C. (3d) 541 (Ont. C.A.),
    at para. 47, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 145. A
    complete elimination of risk is not required, but there must be proof that the
    nature and severity of the risk can be adequately contained in the community by
    treatment, external controls, some other means, or a combination of mechanisms:
R. v. Little
, 2007 ONCA 548, 225 C.C.C. (3d) 20, at paras. 39, 42,
    leave to appeal to S.C.C. refused, 2008 CanLII 18932.

[38]

With
    these principles in mind, I turn to the appellants grounds of appeal.

C.

Did the sentencing judge misapprehend the evidence?

[39]

The
    appellant submits that the sentencing judge misapprehended the evidence in four
    respects, and that these misapprehensions led her to an unreasonable result. He
    argues the sentencing judge misapprehended the evidence of (i) his treatment
    prospects, (ii) whether Lupron would reduce his risk, (iii) whether the Parole
    Board could enforce a condition requiring him to take Lupron, and (iv) the fact
    that he reoffended after having gone through treatment. I disagree.

(1)

The appellants
    treatment prospects

[40]

The
    appellant argues that the sentencing judge misapprehended the evidence of his
    treatment prospects should he be prescribed sex-drive reducing medication. The
    appellant suggests that the sentencing judge should not have rejected Dr.
    Ramshaws opinion that Lupron would make the risk manageable on the basis that
    his willingness to take the drug had not been tested. The appellant also argues
    that the sentencing judge should have accepted Dr. Ramshaws opinion that he
    was likely to comply with treatment, and that Lupron was unlikely to be
    contraindicated despite his age and other medical conditions.

[41]

I
    reject these arguments. It was open to the sentencing judge to conclude, on the
    evidence before her, that the mere possibility that the appellant might be able
    to take Lupron and have his sex drive and interest in sexual activity reduced
    did not adequately reduce the risk.

[42]

First,
    I would note that Dr. Ramshaws opinion regarding the appellants risk after
    being treated by Lupron was not as unequivocal as the appellant suggests. Dr.
    Ramshaw stated that the appellant may benefit from this medication, but set
    out in her report many areas of uncertainty, including whether the appellant would
    be able to take the medication, both in terms of contraindications and
    potential side-effects, and whether he was committed to taking it. Dr. Ramshaw also
    noted that some people do offend while on the medication and there were ways
    the appellant might get around Lupron. Additionally, the pursuit of sexual
    gratification was not the only reason the appellant offended, and Lupron would
    not address the appellants other motivations.

[43]

Even
    assuming that Dr. Ramshaw offered an unequivocal opinion, the sentencing judge
    was not required to accept it. She was required to consider the evidence as a
    whole, which included the uncertainties outlined above, the appellants fixed
    maladaptive traits that predisposed him to offend against children, and the
    appellants history of manipulating people in authority in order to permit him
    to continue offending. It was not unreasonable for her to take account of this
    evidence in rejecting his argument that he would be able to take Lupron and
    that Lupron would make the risk he posed manageable.

(2)

The effect of Lupron
    on the risk posed by the appellant

[44]

The
    appellant argues that the sentencing judge erred in concluding Lupron would not
    affect his risk because he did not require an erection to offend, and that
    Lupron was therefore inapplicable to him. Again, I disagree.

[45]

With
    respect, I do not agree that the sentencing judge reasoned in the manner the
    appellant suggests. She did not conclude that the possibility of control of
    sexual urges by Lupron was generally irrelevant but rather that one of the
    effects of Lupron  erectile dysfunction  would not contribute to reducing the
    risk posed by the appellant because he did not require an erection to offend.
    The sentencing judge commented that the appellants assertion that he would take
    Lupron remained untested, that the Parole Board could not enforce medical
    intervention, and that none of the appellants previous sexual assaults
    involved penile penetration. The sentencing judge then noted that he continued
    to offend despite treatment, a diminished sex drive, and advancing age. The
    sentencing judge referred to the fact that the appellant did not require an
    erection to offend in the context of evidence that his sex drive had diminished
    before he committed the predicate offence and evidence that he was motivated to
    offend for emotional as well as sexual reasons. The fact that he did not
    require an erection to offend was relevant in light of this evidence.

(3)

The Parole Boards
    ability to require the appellant to take medication

[46]

The
    appellant also argues the sentencing judge misapprehended the evidence and the
    law when she concluded that the Parole Board could not enforce a term that
    required the appellant to take certain medication. The appellant submits that
    such a term could be enforced indirectly, by way of a term requiring the
    offender to follow psychiatric counselling. An offender could be charged with a
    breach if he failed to follow the treatment recommended by his psychiatrist.

[47]

In
    my view, the appellants argument is unsupported on a fair reading of the
    reasons. The sentencing judge stated that the Parole Board could not enforce
    medical intervention. This comment was consistent with the evidence. It was not
    unreasonable for the sentencing judge to conclude that the indirect mechanism of
    enforcement suggested by the appellant would not adequately reduce the risk.

[48]

The
    evidence before the sentencing judge from Correctional Services Canada was that
    the Parole Board would not impose a long-term supervision order condition
    requiring a person to take a certain medication. It would, as the appellant
    suggests, require an offender to follow psychiatric counselling as recommended
    by a psychiatrist, who might in turn prescribe Lupron. If an offender refused
    to take medication, Correctional Services Canada might interpret this as a
    breach of the counselling condition. Unless the refusal to take medication
    amounts to a breach of the long-term supervision order, there is no way to
    re-incarcerate the offender.

[49]

As
    the respondent points out, the appellant would only be charged with a breach if
    he failed to comply with a term of a long-term supervision order without a reasonable
    excuse. A reasonable excuse could potentially include that the medication had
    unacceptable side effects or was contraindicated by the appellants health
    conditions. The sentencing judge did not have definitive evidence on whether
    the appellant would suffer from significant side effects or be unable to take
    Lupron for other reasons. While she did not refer to it in her reasons, it
    would have been reasonable for her to conclude, as she implicitly did, that the
    indirect enforcement mechanism proposed by the appellant was inadequate given
    the lack of evidence about the appellants ability to take Lupron.

[50]

The
    sentencing judge also had limited evidence of the appellants willingness to
    take Lupron. She had only his second-hand assertion to Dr. Ramshaw. It would
    not have been unreasonable for her to conclude that without further evidence of
    the appellants commitment to taking Lupron, a long-term supervision order with
    an indirect enforcement mechanism would not adequately reduce the risk.

(4)

The significance of
    the appellants treatment and re-offence history

[51]

The
    appellant submits the sentencing judge misapprehended the evidence of the fact
    that he had re-offended despite having been through intensive sex offender
    treatment. He argues that she failed to appreciate that his treatment was
    successful for some time and that Dr. Ramshaws proposed plan involved
    treatment as only one prong in a more comprehensive overall strategy.

[52]

I
    reject this argument. The appellant admits that the fact that he re-offended
    despite having been through intensive treatment was a relevant consideration.
    The sentencing judge recited the appellants history of abusive behaviour and
    would have been aware that there was a gap in his record of offending. It would
    have been evident to her that the plan proposed by Dr. Ramshaw did not rely on
    treatment alone, but as one part of an overall strategy. Indeed, she summarized
    Dr. Ramshaws proposed strategy in detail.

[53]

Further,
    the sentencing judge referred to the appellants prior treatment as only one
    factor in a series of factors leading to her conclusions that (1) the appellant
    was a dangerous offender, and (2) no lesser measure could reasonably be
    expected to reduce the risk he posed. She did not rely on it as the only factor
    or the determinative factor. The sentencing judge was entitled to rely on the
    fact that the appellant re-offended despite having been through intensive
    treatment in reaching these conclusions.

D.

Did the sentencing judge fail to apply a forward-looking test?

[54]

The
    appellant argues the sentencing judge erred by reciting his past failures
    rather than considering the possible future impact of a lengthy determinate
    sentence combined with a lengthy period of supervision. The appellant suggests
    the sentencing judge was required to consider whether imposing the maximum term
    of imprisonment, ten years, in combination with a ten-year long-term
    supervision order would adequately reduce the risk.

[55]

I
    also reject this argument. The sentencing judge was alive to the need to apply
    a forward-looking test. As the appellant admits, she was entitled to take into
    account the appellants past behaviour. She did not allow the appellants past
    failures to dictate the outcome, and she considered the possibility of a
    lengthy term of imprisonment.

[56]

The
    applicable provisions of the
Criminal Code
reflect the need for courts
    to consider past conduct when determining future risk. Parliament has
    established a standard of preventive detention that measures an accuseds
    present condition according to past behaviour and patterns of conduct:
Currie
,
    at para. 26. An offender will only be designated dangerous if he or she has
    demonstrated past behaviour (including and in addition to the predicate
    offence) indicating that he or she poses a threat. The offenders past
    behaviour is relevant to the nature of the threat.

[57]

The
    sentencing judge was entitled to consider the appellants pattern of
    repetitive predatory sexual behaviour and to assess his future prospects in
    light of his past conduct. The appellants past failures, in particular his
    response to supervision and treatment, were relevant to whether the risk he
    posed could be adequately managed. As the respondent notes, Dr. Ramshaw
    testified that past behaviour is the best predictor of future behaviour. The
    sentencing judge appropriately considered the appellants history in light of
    the risk management plan proposed by Dr. Ramshaw for the future.

[58]

R.
    v. L.(G.L.)
, 2004 SKCA 125, 189 C.C.C. (3d) 492, cited by the appellant,
    is distinguishable. In this case, the expert focused on whether the offender
    was treatable at the time he wrote his report. He considered mainly the
    present, when he should have assessed whether there was a prospect that the
    risk could be reduced to an acceptable level following treatment programs in
    prison and release in the community (at paras. 48-50). The evidence regarding
    potential treatment options was inadequate as a result. The sentencing judge
    here considered the appellants future prospects and had adequate evidence on
    which to do so.

[59]

The
    sentencing judge also considered the impact of a lengthy period of imprisonment.
    The appellants counsel had suggested a range of around five to six years, less
    credit for time served. He referred to a potential ten-year long-term
    supervision order. The Crown had suggested that if an indeterminate sentence
    was not appropriate, the appropriate range was six to eight years. While the
    sentencing judge did not refer to these ranges, her reasons revolve around the
    central issue of whether a determinate sentence and a long-term supervision
    order could be imposed. Given the submissions made before her, in my view, she
    must be taken to have considered the potential deterrent and rehabilitative
    effects of a lengthy period of imprisonment followed by a long-term supervision
    order.

[60]

I
    would note that there is some question as to whether the sentencing judge could
    have imposed a ten-year determinate sentence and a ten-year long-term
    supervision order to manage the risk if she concluded that a fit determinate
    sentence would otherwise be in the ranges suggested by defence and Crown
    counsel. The dangerous offender provisions form part of the sentencing process,
    and their interpretation must be guided by the fundamental purposes and
    principles of sentencing, including proportionality:
Johnson
, at
    paras. 22-23.

[61]

In
R. v. Severight
, 2014 ABCA 25, 306 C.C.C. (3d) 197, leave to appeal to
    S.C.C. refused, 2014 CanLII 38979, the Alberta Court of Appeal considered an
    argument that the sentencing judge should have designated Severight a long-term
    offender and imposed the maximum determinate sentence available (with no credit
    for pre-sentence custody) and a long-term supervision order rather than
    designating him a dangerous offender and imposing an indeterminate sentence.
    The sentencing judge had held that 10 years would be a fit determinate sentence
    for the offence; the maximum was 14 years.

[62]

The
    majority rejected Severights argument. The sentencing judge determined that a
    10 year sentence was fit. Imposing a 14 year sentence would not have been
    proportionate, and would be unfair, harsh, and contrary to principle (at paras.
    35-36). The majority also commented, at para. 37, that manipulating the
    sentence in this manner would inject the court into a process better suited to
    the parole authorities. Accordingly, I am of the view that the sentencing
    judge was not required to consider imposing a sentence that may have been
    outside the appropriate range for this offence.

[63]

In any event, the sentencing judge did not fail to apply a
    forward-looking test and appropriately considered the possibility of imposing a
    lengthy determinate sentence followed by a long-term supervision order.

E.

Was the sentencing judges conclusion that there was no reasonable
    expectation that a lesser measure would adequately protect the public
    unreasonable?

[64]

Finally,
    the appellant argues that on the available evidence, it was unreasonable for
    the sentencing judge to conclude that there was no reasonable expectation that
    a lesser measure would adequately protect the public. In support of this
    argument, he points to the evidence of Dr. Ramshaw, who he says concluded that the
    risk could be managed through a determinate sentence and a long-term
    supervision order, the gap in his offending behaviour, his history of not
    offending while under supervision by the criminal justice system, and his
    advancing years and deteriorating health.

[65]

In
    my view, the sentencing judges conclusion was reasonable and founded on the
    evidence. The appellants argument on this issue is bound up with his argument
    that the sentencing judge misapprehended the evidence, so to some extent, the
    analysis above addresses it. I will address it briefly here.

[66]

The
    issue of whether the risk posed by the appellant could be adequately reduced
    using a lesser measure turned on Lupron. While Dr. Ramshaws plan had several
    prongs, Lupron was the most significant as the other prongs alone were unlikely
    to be adequate. The sentencing judge had limited evidence of the appellants
    willingness and ability to take Lupron. There was evidence that Lupron was not
    contraindicated for the appellants medical conditions, but he had not had a
    definitive workup and whether he would experience side effects was unknown.

[67]

Even
    if treatment with Lupron was possible, the evidence was that Lupron could only
    go so far. First, the appellant could avoid the effects of Lupron by taking
    other drugs. Second, the appellant offended not only for sexual gratification,
    but to cope with stressors and to fulfill his emotional needs. He copes poorly
    with stress and would face a high probability of stress if left alone in the
    community. Third, his fixed maladaptive personality traits predisposed him to
    offending against children. His not insignificant level of psychopathy meant he
    was less inhibited and more likely to reoffend. The appellant minimized his
    responsibility and attributed his difficulties to others. He was unlikely to
    seek out help on his own. Fourth, while risk generally decreases with age, the
    appellant had offended into his fifties and the expert evidence was equivocal
    on whether he would experience burn out. Finally, the evidence was
    unequivocal that the appellant was extremely manipulative and monitoring him
    was likely to be difficult. Lupron would not assist with any of these factors,
    and it was open to the sentencing judge to conclude that the remaining measures
    would not provide sufficient assistance.

[68]

It
    was reasonable for the sentencing judge to conclude that there was inadequate
    evidence to suggest the appellant could and would commit to taking Lupron over
    the long-term. It was also reasonable for her to conclude that the evidence did
    not support a reasonable expectation the risk he posed could be managed with a
    determinate sentence and a long-term supervision order.

F.

The Fresh Evidence

[69]

There
    are two parts to the appellants fresh evidence. He has tendered his own
    affidavit and an affidavit from Dr. Mark Pearce. Both the appellant and Dr.
    Pearce were cross-examined on these affidavits. In brief, beginning in 2013, the
    appellant has been treated with Lupron. The appellant has offered his
    perspective on the effectiveness of his treatment. Dr. Pearce offers his
    opinion on the appellants treatment and the manageability of the current risk.
    Dr. Pearce largely agrees with Dr. Ramshaws report, but has offered his own
    analysis and additional comments in light of the appellants treatment with
    Lupron.

[70]

The
    court may admit fresh evidence on an appeal from a dangerous offender
    designation when it is in the interests of justice to do so: ss. 759(7) and
    683(1). The well-known
Palmer
test governs the admissibility of fresh
    evidence in this context. The proposed fresh evidence must meet four criteria:

·

The evidence must not have been capable of being adduced at trial
    through due diligence;

·

The evidence must be relevant in the sense that it bears on a
    decisive or potentially decisive issue;

·

The evidence must be credible in the sense that it is reasonably
    capable of belief;

·

If believed, when taken with the other evidence, the evidence
    must be expected to have affected the result.

[71]

If
    the
Palmer
criteria have been satisfied, the court may consider the
    fresh evidence when deciding whether a dangerous offender designation is
    unreasonable:
Sipos
, at para. 42.

[72]

When
    deciding whether to rely on fresh evidence on a sentence appeal, courts must
    bear in mind the institutional limitations of appellate courts and the
    importance of finality:
Sipos
, at para. 30.  The integrity of the
    criminal process could be undermined by routinely deciding sentence appeals
    based on after-the-fact developments:
Sipos
, at para. 30. Courts will
    generally take a cautious approach to intervening on the basis of this kind of
    evidence. Evidence of an offenders post-sentencing rehabilitative efforts and
    prospects will only exceptionally be admissible:
Sipos
, at para. 43.
    This type of evidence is generally best left for the correctional authorities
    to assess in the administration of the indeterminate sentence.

[73]

Below,
    I explain why it is my view that the appellants fresh evidence is not
    admissible. I also agree with the respondent that the appellants real argument
    is that he has progressed such that his status should be reassessed. The Parole
    Board is better placed to determine whether his progress justifies his release
    on day parole or, when the time comes, full parole.

(1)

Due diligence

[74]

This
    criterion is not applied as strictly on criminal appeals, but remains a factor
    to consider. To the extent the fresh evidence relates to treatment the
    appellant has received after being sentenced, in my view, it could not have
    been adduced by the exercise of due diligence at his hearing. I would note that
    to the extent the fresh evidence consists of Dr. Pearces analysis of evidence
    before the sentencing judge, it was, in fact, already adduced.

(2)

Relevance

[75]

The
    aspects of the fresh evidence relating to the appellants treatment prospects
    and risk management are relevant to issues argued at sentencing. The central
    issue at his sentencing hearing was whether there was a reasonable expectation
    that the risk posed by the appellant could be managed by a lesser measure than
    an indeterminate sentence.

(3)

Credibility

[76]

The
    respondent argues that the appellants evidence is not reasonably capable of
    belief. The respondent submits that the evidence at the sentencing hearing
    demonstrated that the appellants self-reports cannot be relied on because the
    appellant is manipulative and deceitful. The respondent notes that Dr. Pearces
    evidence confirms the sentencing judges conclusion in this respect.

[77]

I
    tend to agree. Both experts agree that the appellants self-reporting is not
    reliable. The evidence is unequivocal that the appellant is manipulative and
    will say what he thinks people in authority want to hear in order to obtain an
    advantage. To the extent the appellant reports on his subjective experience
    while taking Lupron, including its effectiveness and any side-effects he
    experiences, his report is not credible and for that reason is not admissible.

[78]

The
    respondent concedes that Dr. Pearces evidence is credible, except to the
    extent he relies on the appellants self-report. I agree that Dr. Pearces
    evidence is credible, but is not reliable to the extent that it is based on the
    appellants self-report.

(4)

Effect on the
    result

[79]

To
    the extent that Dr. Pearce has offered his opinion on the record before the
    sentencing judge, his evidence is not new or previously unknown information:
R.
    v. I.M.C.
, 2014 ONCA 312, 120 O.R. (3d) 1, at para. 66. He also largely
    concurs with Dr. Ramshaw. In that respect, his evidence cannot be expected to
    have affected the result. An appeal is not an opportunity to add to the
    evidence by leading a concurring expert opinion on the same issues:
I.M.C.
,
    at paras. 67-69.

[80]

Even
    the truly fresh evidence, in my view, would not lead to a different result.
    The credible fresh evidence establishes that at the present time, the appellant
    can and has been taking Lupron. The Lupron has reduced the appellants testosterone
    level to an undetectable level. This would have been helpful to the sentencing
    judge, but is by no means determinative.

[81]

The
    fresh evidence does not address the sentencing judges other concerns about
    risk. Dr. Pearce agrees that the appellant is manipulative and his self-report
    cannot be relied upon. Besides the decrease in the appellants testosterone
    level, all other measures of the effectiveness of Lupron come from the
    appellants self-report. The appellant claims it is working, but his evidence is
    inherently unreliable. Dr. Pearce agrees with Dr. Ramshaw that some people can
    and do offend while on Lupron. He agrees the appellant will be difficult to
    monitor because of his fixed, maladaptive personality traits. He also agrees
    that the appellant offends in part because of his unmet emotional needs, and
    that the Lupron will not address this motivation.

[82]

Dr.
    Pearce also raises a new concern about a potential side effect of Lupron. Dr.
    Pearce testified that Lupron may lead to greater difficulty in managing the
    appellants diabetes. The appellants medical records confirm he has
    experienced greater difficulty managing his diabetes since beginning Lupron.
    Dr. Pearce agreed that Lupron may be the cause. This evidence raises questions
    about the long-term manageability of Lupron and whether the appellant would or
    could continue to take it over the course of a long-term supervision order and
    beyond.

[83]

The
    fresh evidence does not suggest that the sentencing judges conclusion was
    unreasonable. Taken at its highest, it provides some answers to questions that
    were unanswered at the time of the hearing. It does not suggest that the
    multiple concerns expressed by the sentencing judge were without foundation. In
    my view, the evidence cannot be expected to affect the result.

[84]

Even
    if the fresh evidence were admissible under the
Palmer
criteria, I
    would not rely on it based on the Supreme Courts recent comments in
Sipos
.
    The appellants fresh evidence is composed largely of after-the-fact
    developments in his treatment and rehabilitation. He began treatment with
    Lupron about two years after he was sentenced. This case is not exceptional.
    The appellant has made some progress in his treatment and his progress will be assessed
    by the correctional authorities in the course of administering his sentence.
    The direction given by the Supreme Court in
Sipos
suggests that the
    evidence of the appellants after-the-fact progress should not be admitted or
    relied on to undermine the finality of the sentencing judges reasonable and
    error-free conclusion.

CONCLUSION

[85]

The
    appellant has not shown that the sentencing judge fell into legal error or that
    her conclusion was unreasonable. The appellants fresh evidence is not
    admissible and, in any event, is properly a matter for the parole authorities.
    Accordingly, I would dismiss the appeal.

Released: MT Sep 9, 2015

M. Tulloch J.A.

I agree. G. Pardu
    J.A.

I agree. M.L. Benotto
    J.A.


