



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ramgadoo, 2012
    ONCA 921

DATE: 20121227

DOCKET: C52659

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Ramgadoo

Appellant

Paul Calarco, for the appellant

Karen Papadopoulos, for the respondent

Heard: April 24, 2012

On appeal from the sentence imposed on February 16, 2010
    by Justice Donald J. Halikowski of the Ontario Court of Justice.

Feldman J.A.:

OVERVIEW

[1]

On February 12, 2008, Christopher Ramgadoo pled guilty to aggravated
    sexual assault, sexual interference, unlawful confinement, attempted choking,
    and breach of probation. The convictions stemmed from an attack on a
    13-year-old girl.

[2]

Because of the appellants record for sexual assault of an 18-year-old
    woman, as well as for assault and criminal harassment of another woman, the
    Crown sought a dangerous offender designation. During the 14-day hearing, it
    was agreed that the appellant satisfied the statutory criteria for a dangerous
    offender designation under s. 753(1) of the
Criminal Code
.

[3]

Consequently, the only issue at the hearing was whether there was a
    reasonable possibility that the risk posed by the appellant could be eventually
    controlled in the community pursuant to s. 753.1 of the
Code
. If a
    reasonable possibility of control existed, this provision, as it has been
    interpreted by the Supreme Court of Canada in
R. v. Johnson
, 2003 SCC
    46, [2003] 2 S.C.R. 357, at paras. 32 and 40, would have mandated the court to
    declare the appellant a long-term offender rather than a dangerous offender and
    to impose a determinate sentence and a long-term supervision order rather than
    an indeterminate sentence.
[1]


[4]

On February 16, 2010, the sentencing judge found that there was no
    reasonable possibility that the risk posed by the appellant could be eventually
    controlled in the community, declared the appellant a dangerous offender, and
    imposed an indeterminate sentence. The appellant was 33 years of age at the
    time of sentencing.

[5]

On this appeal, the appellant submits that the sentencing judge failed
    to consider how recidivism would be reduced by both the natural aging of the
    appellant and by making a regime of medications a condition of a long-term
    supervision order that would be enforced by the National Parole Board.

[6]

For the following reasons, I would dismiss the appeal.

The Predicate Offence

[7]

On April 9, 2007, the 13-year-old victim was waiting on a bench at the
    front of her building for a friend to arrive. Uninvited, the appellant sat down
    beside her. He asked her a number of questions and then kissed her. She pushed
    him away and went into the lobby of the building.

[8]

The appellant followed her into the building. He grabbed her as she
    tried to escape and began choking her, threatening to kill her if she screamed.
    He dragged her down the hall and into the stairwell and continued to choke her
    as he dragged her up the stairs to the elevator control room. The appellant
    demanded that she remove her clothes. When she refused, he pushed her to the
    ground, rolled her onto her back and resumed choking her. The appellant bit her
    face and smashed her head against the concrete floor. The victim finally
    removed her clothes.

[9]

The appellant returned to choking the victim before forcibly raping her
    until he ejaculated.  He did not use a condom. The victim was then forced to
    perform fellatio on the appellant. He ejaculated in her mouth. He left her
    lying on the floor.

EVIDENCE AT THE SENTENCING HEARING

Prior Criminal Record

[10]

The appellants criminal record, dating back to 2003, was entered as an
    exhibit at the hearing. His record included prior convictions for assault,
    criminal harassment, breach of a conditional sentence order and sexual assault.
    The assault, criminal harassment and breaches arose out of a series of
    incidents in 2003 and 2004 involving the owner of a tanning salon, the most
    serious of which involved the appellant choking the woman. The sexual assault
    conviction was based on a random attack on an 18-year-old woman in 2005.

Evidence of Correctional Services Officers

Sherri
    Roussell

[11]

Ms. Roussell is a parole office supervisor with the
    Correctional Service of Canada. She gave her understanding of the Parole Boards
    authority to decide if an offender who has been released pursuant to a
    long-term sentencing order could be charged with the offence of breaching that
    order under s. 753.3 of the
Code
. When an offender is convicted under
    that provision, the long-term supervision order is suspended for the period of
    incarceration, which can be up to 10 years.
[2]

Kimberly
    Vink

[12]

Ms. Vink was the appellants probation officer between 2004 and 2007 and
    is specially trained in the risk assessment and identification of sexual
    offenders. According to Ms. Vink, although the appellant was generally
    compliant about reporting and signing consents to release information, he
    showed little insight into his offending conduct and was generally not eager
    to engage in sexual offender counselling. He suggested at almost every
    appointment that he felt fine and wanted to reduce or stop his medication, despite
    constant reminders that the failure to take his medication would increase his
    risk of reoffending.

Alan
    Fair

[13]

Mr. Fair is a registered social worker who specializes in providing
    counselling services to sexual offenders on release into the community. He
    counselled the appellant at various times between 2004 and 2007. He last
    visited with the appellant on April 4, 2007, five days before the appellant
    committed the predicate offence. At that time, the appellant informed Mr. Fair
    that he was feeling a lot better and doing a lot better. Mr. Fair was of the
    opinion that the appellant was probably the most coherent [he] had seen him. The
    appellant also confirmed that he had been taking his medications and that he
    had not been using alcohol or drugs, although it later became apparent that the
    appellant had deceived Mr. Fair in this regard.

Expert Evidence

Dr.
    Philip Klassen

[14]

Dr. Philip Klassen was the psychiatrist called as the Crowns expert
    witness. In a report dated August 30, 2008, he stated that the appellant
    suffered from an anti-social personality disorder, schizophrenia, a paraphilia
    or paraphilias (connected to his coercive sexual preference) and substance
    abuse disorders.

[15]

Based on a variety of tests of the appellant, Dr. Klassen concluded that
    he was at a high risk of re-offence. During examination-in-chief, Dr. Klassen
    referred to the risk as both fairly high and simply as high, adding that
    the appellants score on risk assessment instruments demonstrates that his
    risk to reoffend sexually is at or greater than about 90 per cent of convicted
    sex offenders.  Dr. Klassen described the appellant before the court as at
    the high end of the LTO range or the low end of the DO range.

[16]

As Dr. Klassen was confident that the appellant met the criteria for a
    dangerous offender designation, the majority of his analysis was focused on
    whether the appellant also met the criteria for a long-term offender
    designation. For the purpose of these reasons, I review his evidence on the two
    points raised on appeal: first, the evidence concerning any age-related
    reduction in the risk posed by the appellant; and second, the evidence
    concerning both the potential efficacy of medication in controlling the risk
    posed by the appellant and the likelihood that the appellant would be compliant
    with a medication regime.

[17]

With respect to age-related reduction in risk, Dr. Klassen noted in his
    report that persons with a paraphilic coercive disorder tend to experience
    age-related decline in their propensity for such behaviour at some point,
    typically in their forties. He added during examination-in-chief that in the
    case of stranger rapes, offending, by the time a person is into their
    fifties, numerically essentially hits zero.

[18]

In the appellants case, however, Dr. Klassen qualified this opinion by
    saying that these statistics are derived from studies of sex offenders, few of
    whom also have schizophrenia, and that the appellants schizophrenia makes it
    possible that a violent offence could be committed at a more advanced age.

[19]

On the subject of the appellants treatment prospects, Dr. Klassen wrote
    in his report that the appellant was not a particularly good treatment
    candidate. During examination-in-chief, he elaborated on this point by saying
    that the appellant has been quite compliant with treatment and management
    suggestions in an institution but in the community his approach to psychiatric
    care and medication use was quite different. Dr. Klassen noted that if the
    appellant were released, he would initially breach his conditions as a way of
    testing them.

[20]

On the specific point of the efficacy of the injectable drugs at
    issue, Dr. Klassen noted during examination-in-chief that although people
    think that there is magic in delivering an injection, this approach is still
    dependent on the patient self-reporting whether, for example, he is still
    having arousal to the thought of rape. Nevertheless, when pressed during
    cross-examination on how the appellant might respond to the strongest form of
    sex drive reducing medication (which had never been administered to him
    before), Dr. Klassen stated:

[W]e cant really state it with certainty because we dont really
    have an antecedent history of looking at this in Mr. Ramgadoo, but really if he
    was willing, you know, I think Mr. Ramgadoo is two injections a month away from
    a much better lifestyle. If he took antipsychotic medication by injection and
    if he took sex drive reduction by injection, I think hes a person whose risk
    would go way down, but he needs to take it and he needs to take it
    consistently.

[21]

Dr. Klassen concluded his report with the following opinion:

If this gentleman were to be released to a community
    correctional facility (and thereafter were to live only in accommodation
    approved by the National Parole Board), and if he were to be consistently
    treated with antipsychotic medication, and if conditions were in place to
    monitor and manage his substance use, and particularly if this gentleman was on
    injectable sex-drive reduction, and if the foregoing could be maintained for a
    period of time that would take this individual into, at least, his mid-forties,
    then, from a psychiatric perspective, I would be prepared to support the notion
    of reasonable possibility of eventual control of the risk in the community.
    While on prior releases when this gentleman became noncompliant with
    medication use there appear to have been insufficient levers available to intervene,
    resulting in the cascade that led to Mr. Ramgadoos offending. Given that Mr.
    Ramgadoo chafes at the notion of external controls future efforts at community
    supervision will need to be such that there is leverage for quick and
    substantial intervention at any suggestion of non-compliance with conditions
    of his release.

Dr. Mark Pearce

[22]

Dr. Mark Pearce was the psychiatrist called as the expert witness for
    the defence. In his report dated December 15, 2009, he diagnosed the appellant
    with essentially the same conditions that Dr. Klassen had: schizophrenia,
    polysubstance dependence, paraphilia (connected to his coercive sexual
    preference), and anti-social personality disorder.

[23]

Dr. Pearce also ran a variety of tests to determine the likelihood that
    the appellant would reoffend. On one of them, Dr. Pearce concluded that the
    appellants score suggested a high risk of future violent (including sexual)
    recidivism. On another, the appellants score was indicative of a high risk
    of future violent behaviour, absent significant interventions. In
    examination-in-chief, Dr. Pearce acknowledged that his test results did not
    differ much from those of Dr. Klassen. In cross-examination, Dr. Pearce
    acknowledged that his report was fairly consistent with that of Dr. Klassen.

[24]

As Dr. Pearce was also confident that the appellant met the criteria for
    a dangerous offender designation, the majority of his report was focused on
    whether the appellant met the criteria for a long-term offender. As I did with
    Dr. Klassens evidence, for the purposes of these reasons, I focus my review of
    Dr. Pearces evidence on the two issues raised on appeal: first, whether there
    is any age-related reduction in the risk posed by the appellant; and second,
    the efficacy of an enforced regime of medications in controlling that risk.

[25]

On the first issue, Dr. Pearce did not make any comment in his report on
    whether there is any age-related reduction in the risk. His only testimony that
    pertained to this point emerged in cross-examination. He agreed with Dr.
    Klassen that there is an age-related decline in sexual assaults against
    strangers and noted that we dont know a lot about sex offenders who have
    schizophrenia.

[26]

Turning to the second issue, in terms of drug treatments, Dr. Pearce
    carefully articulated in his report what medications he thought would be
    appropriate for each of the appellants conditions. He stated that an
    injectable schizophrenia medication would greatly assist in ensuring that Mr.
    Ramgadoo is compliant with prescribed medication. When discussing a
    recommended antipsychotic drug, Dr. Pearce noted that the appellants
    psychotic disorder is relatively treatment responsive, which is a favourable
    prognostic indicator. Dr. Pearce was less optimistic about the appellant
    overcoming his substance dependencies and his anti-social personality disorder.

[27]

As for the appellants paraphilia, Dr. Pearce agreed with Dr. Klassen
    that libido reducing medication would be necessary, stating that it would be
    an essential risk management strategy. During examination-in-chief, Dr. Pearce
    elaborated on this point, noting that a sex drive reducing medication,
    delivered via injection, would be very helpful in reducing his risk for
    re-offence. If all these medications were taken, Dr. Pearce opined that the
    risk of re-offence would be dramatically lowered.

[28]

On cross-examination, when asked specifically about the efficacy of sex
    drive reducing medication, Dr. Pearce stated that there are not really any good
    studies about it. While clinical experience suggests that such drugs reduce
    the recidivism of sex offenders, he stated: certainly people have reoffended
    on sex [drive] reducing medications.

[29]

On the prospects of the appellant actually taking all these medications,
    Dr. Pearce stated in his report that it was a positive indicator that Mr.
    Ramgadoo is willing to accept and participate in various treatments and that
    with the close and intense monitoring of a long-term supervision order, the
    risk posed by the appellant could be managed adequately. Noting the
    appellants history of taking his medications when in jail but not when he is
    in the community, Dr. Pearce recommended long-term injectable medication so
    that compliance could be monitored. On cross-examination, Dr. Pearce was asked
    whether, owing to the appellants set of diagnoses being quite unusual, it
    became somewhat speculative to determine how successful certain treatment will
    be. He agreed that this was somewhat true.

[30]

Ultimately, Dr. Pearce summarized his conclusion in his report as
    follows:

In summary, the possibility that Mr. Ramgadoo will be
    manageable in the community upon the expiry of his LTSO is somewhat mixed. The
    fact that he is agreeable to a variety of programming is a positive prognostic
    factor, as is his ongoing contact with his family. Intensive treatment in
    multiple domains, primarily the pharmacological realm, may assist with Mr.
    Ramgadoos propensity to violence (sexual and otherwise). Given these
    considerations, and weighing the aforenoted factors, I am of the opinion that
    there is reason for optimism as regards reducing the likelihood of future
    violent behaviour.

[31]

Dr.
    Pearce expressed a similar conclusion in his oral evidence:

I do think that given the various diagnoses, given the lack of
    psychopathy, given the treatment prognosis for the diagnosis and his
    willing[ness] to accept that treatment, that there is some support that this
    gentleman could be managed by virtue of a long term supervision order.


THE DECISION OF THE SENTENCING JUDGE

[32]

The sentencing judge reviewed the evidence in detail. He began by
    describing the appellants personal history, including early and continuing
    substance abuse and his failure to go beyond grade 11 in his education. When
    asked, the appellant said that he personally had suffered sexual abuse but did
    not want to report it.

[33]

The sentencing judge next discussed the appellants encounters with the
    justice system before he was convicted of any offences. He then described the
    three incidents in which the appellant attacked women that resulted in
    convictions. The first incident was when he choked the owner of the tanning
    salon. He received a conditional sentence, which he served in part at the St.
    Lawrence Valley Corrective Treatment Centre. However, while serving the
    conditional sentence, the appellant sexually assaulted an 18-year-old female
    stranger he happened to meet while riding his bicycle.
[3]
This sexual assault was also a breach of the conditional sentence, the
    remainder of which he served in custody concurrently with the 16-month sentence
    imposed for the sexual assault. One month after his release, the appellant
    committed the predicate offence, the violent sexual assault of a 13-year-old
    victim.

[34]

The sentencing judge then assessed the appellants criminal behaviour.
    He found that the appellants crimes showed a complete disregard for the
    physical integrity of the victims, that his acts display[ed] no sense of
    empathy for the victims, and that he behaved with utter selfishness  and
    further terrorized this child by telling her that he would kill her if she
    reported the incident.

[35]

The next phase of the reasons is a thorough review of the evidence of
    the two psychiatrists, including their diagnoses and prognoses for the
    appellant and, importantly, their assessments of his risk to reoffend. The
    sentencing judge synthesized Dr. Klassens opinion from his oral evidence on
    the appellants suitability for treatment as follows:

Dr. Klassen holds the view that the Accused would not be a good
    treatment candidate in the community. The extent of his various diagnoses and
    his reaction to Sex Treatment at the St. Lawrence facility suggest strongly
    that he needs to be managed by means of external controls  that is  controls
    that do not depend on trusting the Accused to take his medications and engage
    actively and voluntarily in ongoing therapies.

[36]

The sentencing judge also quoted in full Dr. Klassens opinion from his
    report, which is set out above at para. 21 of these reasons. In that report,
    Dr. Klassen stated that conditions of any release into the community should
    require the appellant be treated with antipsychotic medication and injectable
    sex drive reduction medication. I repeat here his conclusion:

Given that Mr. Ramgadoo chafes at the notion of external
    controls (still expressed to me), perhaps a reflection of his experiences with
    his parents, future efforts at community supervision will need to be such that
    there is leverage for quick and substantial intervention (resulting in
    re-incarceration or return to a community correctional centre) at any
    suggestion of non-compliance with the conditions of his release.

[37]

The sentencing judge noted that Dr. Pearce emphasized that the appellant
    would have to be trusted to take his medications and to comply with treatment
    for his paraphilia and with testing for his substance abuse issues while on
    community supervision. He referred to Dr. Pearces guarded opinion that the
    appellant may be manageable in the community, but that the likelihood of
    success was somewhat mixed.

[38]

The sentencing judge then referred with great concern to the evidence of
    the social worker, Mr. Fair. Mr. Fair had contact with the appellant on April
    4, 2007. The appellant demonstrated a positive attitude, and Mr. Fair believed
    the appellant when he said that he was on his medication and abstaining from
    alcohol. This was only a few days before he committed the predicate violent
    sexual offence. The appellants deception of a very experienced social worker
    who knew the appellant and knew about his medications and his general attitude
    regarding reoffending, demonstrated a very concerning ability to manipulate
    people.

[39]

Having found that the appellant satisfied the statutory criteria
    for a dangerous offender under s. 753(1) the
Code
, on which both
    experts agreed, the sentencing judge then considered whether there was a
    reasonable possibility of eventual control of the appellants risk in the
    community, pursuant to s. 753.1(1) of the
Code.
[4]


[40]

He concluded that there was no reasonable possibility of eventual
    control in the community and summarized his reasons as follows:

Given the violent nature of his crimes and the extensive damage
    he causes by his actions; his lack of empathy for his victims both at the time
    of the crimes and after his having undergone extensive therapy; his ongoing
    untrustworthiness to accept judicial and medical intervention to minimize the
    risks he poses to the community; his proven intentions and refusals to take the
    required medications necessary to reduce his sexual urges and his psychotic
    inclinations; his distrust and challenging attitude towards those in authority
    who are mandated to control his behaviours and the uncertainty and mere
    speculation that any known therapies or treatments will have the effect of
    reducing his risk to society given the cluster and interrelationship between
    his schizophrenia, paraphilia, drug and alcohol addictions and his personality
    disorder; this Court finds that there is no reasonable possibility of eventual
    control of the Accuseds risk in the community.

ISSUES

[41]

The appellant raises two issues on the appeal. Did the sentencing judge
    err in imposing a dangerous offender designation on the appellant, rather than
    a long-term offender designation, by failing to consider: a) the effect of
    aging or burn-out on the appellants likelihood to reoffend on release; and
    b) the terms that the National Parole Board could impose on release, including
    mandatory antipsychotic and sex drive reducing drugs?

ANALYSIS

Standard of Review

[42]

Deference is to be accorded to the sentencing judge on issues of
    fact-finding and credibility, including the critical question of the reasonable
    possibility of eventual control of the offender in the community:
R. v.
    R.M.
, 2007 ONCA 872, 228 C.C.C. (3d) 148, at para. 53.

[43]

The appellant submits, nevertheless, that when considering whether the
    trial judge committed the alleged errors, the court should bear in mind, a) the
    significant effect the dangerous offender designation has on the offender and
    on his liberty, and b) it was intended that the designation would apply only
    where less restrictive means that will adequately protect the public do not
    exist:
Johnson,
at para. 44.

Issue 1: Did the sentencing judge err by failing to consider
    the burn-out effect of aging on the appellant when assessing his future
    dangerousness and the ability to control his risk to the community in the
    future?

[44]

In his reasons, the sentencing judge did not refer to the burn-out
    theory, the normal tendency for aging to have the effect of reducing the
    tendency of offenders toward violent sexual assaults. He made no error in not
    doing so in this case, based on the record before him. Trial counsel for the
    appellant did not advance the argument following the testimony of the two
    experts on the issue.

[45]

Dr. Klassen testified that generally by age 45 or 50, a sexual
    offenders risk of committing a stranger rape will be quite low, but he was
    not sure whether that applied in the appellants case. The reason was that the
    appellant is part of a relatively rare group of people, as someone diagnosed
    with both schizophrenia and a paraphilic coercive disorder and who commits
    stranger rapes. He testified that he had seen offenders with schizophrenia
    committing violent offences at age 55 and 60, as compared with
    non-schizophrenic people. He could not tell the court at what age range the
    appellant would no longer be a concern.

[46]

The appellants expert, Dr. Pearce, was only asked about the effect of
    aging in cross-examination by the Crown, not by defence counsel. He said he
    would not be surprised if Dr. Klassens statement that the aging effect may be
    different with schizophrenics is true.

[47]

Based on the state of the evidence before him and the fact that defence
    counsel did not rely on the aging effect in his submissions, there was no basis
    and no reason for the sentencing judge to refer to the aging effect as a
    consideration in his assessment of the ability to control the risk to the
    community of the appellant reoffending in the future.

Issue 2: Did the trial judge err by failing to determine
    whether the appellant would be amenable to taking injectable treatment drugs
    and, if so, by failing to consider a long-term supervision order that would
    include a mandatory treatment order by the Parole Board as a condition of
    release?

[48]

The appellants position is that the sentencing judge did not consider
    the full panoply of controls available under the long-term offender regime. In
    particular, he did not consider the use of a mandatory drug treatment order
    enforceable as a condition of a long-term supervision order. By not considering
    that option, the sentencing judge erred in law by limiting his discretion.

[49]

The appellant submits that the Parole Board may order treatment as a
    condition of a long-term supervision order where three conditions are met: 1)
    drug treatment for the offender is necessary for the protection of the public;
    2) a doctor determines the required treatment protocol; and 3) the offender is
    willing to consent to the treatment. If that is the case, a sentencing judge
    who is considering whether to order a long-term offender designation should
    take into account the potential for mandatory medication to control the
    offenders risk of reoffending.

[50]

The appellant acknowledges that because no person can be forced to take
    medication against his or her will, a long-term offender who is subject to a
    mandatory order may refuse treatment. In the case of a refusal, s. 753.3 of the
Code
could be employed. It provides an offence punishable by a maximum
    sentence of 10 years for a breach of a long-term supervision order. If the
    appellant were to be convicted of failing to comply with his long-term
    supervision order and sentenced to a term of imprisonment, then under s. 753.4,
    the long-term supervision would be interrupted unless the court ordered its
    termination or reduction.

[51]

Those sections provided:
[5]

753.3 (1) An offender who is required to be
    supervised by an order made under paragraph 753.1(3)(b) [a long-term
    supervision order] and who, without reasonable excuse, fails or refuses to
    comply with that order is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding ten years.



753.4 (1) If an offender who is required to
    be supervised by an order made under paragraph 753.1(3)(b) commits one or more
    offences under this or any other Act and a court imposes a sentence of
    imprisonment for the offence or offences, the long-term supervision is
    interrupted until the offender has finished serving all the sentences, unless
    the court orders its termination.

(2) A court that imposes a sentence of
    imprisonment under subsection (1) may order a reduction in the length of the
    period of the offenders long-term supervision.

[52]

The appellant quarrels with the sentencing judges determination that,
    based on his past non-co-operation with treatment programs, it was speculative
    that treatments or therapies would reduce the risk that the appellant would
    reoffend. He made this determination on the basis that the appellants
    treatment would be strictly voluntary. He did not consider the effect that a
    mandatory treatment order by the Parole Board might have on the appellants incentive
    to comply with that order and co-operate with treatment.

[53]

In this context, the appellant raises the issue of whether the Parole
    Board can order mandatory drug treatment as a condition of a long-term
    supervision order and whether a sentencing judge can so assume when considering
    a long-term offender designation. In
R. v. R.B.
, 2011 ONCA 328, 280
    O.A.C. 329, at para. 12, this court acknowledged that a Parole Board has the
    power to make taking medication a condition of a long-term supervision order,
    but on the understanding that such an order does not mean that the person would
    or could be physically forced to take medication. Rather, if the person does
    not consent to take the medication when required to do so under the terms of
    the order, that could then amount to a breach of the condition under s.
    753.3(1) unless the person had a reasonable excuse for refusing to take the
    prescribed medication (at para. 13).

[54]

The appellant acknowledges that when an offender says he is not willing
    to have treatment, that likely indicates that he is not motivated to change
    and, therefore, he is more likely to be designated a dangerous offender.
    However, when the person is willing to accept treatment, the court can
    recommend treatment as a condition of the long-term supervision order and the
    Parole Board can make it a condition when the time comes for the persons
    release, following service of the definite term imposed. Before a court
    recommends enforceable treatment, it should be convinced, on balance the
    appellant submits, that the offender is willing to participate in treatment.

[55]

The appellants position is that in this case, the sentencing judge did
    not consider whether making treatment a condition of his release as a long-term
    offender with enforcement consequences if he did not comply could reduce the
    risk that he would reoffend. He submits that a new hearing is required for the
    court to specifically consider this issue and that an appellate court is not
    able to make the necessary findings regarding the appellants willingness to
    engage in treatment without hearing the evidence.

[56]

The problem with this submission is that for this offender, the
    suggested condition precedent to the recommendation of a mandatory treatment
    order was not met: the sentencing judge was not convinced on a balance of
    probabilities that the appellant was willing to engage in treatment. He focused
    on the appellants ongoing untrustworthiness to accept judicial and medical
    intervention to minimize the risks he poses to the community; his proven
    intentions and refusals to take the required medications necessary to reduce
    his sexual urges and his psychotic inclinations; his distrust and challenging
    attitude towards those in authority who are mandated to control his behaviours.
    (See para 40 above.)

[57]

This finding was firmly grounded in the evidence and is subject to
    deference. Dr. Klassen observed that while the appellant was compliant with
    treatment when institutionalized, his history was one of non-compliance when in
    the community. Dr. Klassen believed that the appellant would initially breach
    any mandatory medication condition. Given this evidence and the findings of the
    sentencing judge, I do not agree that a new hearing is required.

[58]

A mandatory treatment order can serve the dual function of providing a significant
    measure of protection for the public while allowing the offender the
    opportunity to serve his sentence as a long-term offender rather than as a
    dangerous offender. Its enforcement feature is there to serve as a backstop or
    assurance that the appellant will continue his initial willingness to comply
    with treatment as required. If the offender is truly willing and able to
    change, and the sentencing judge is satisfied that he will comply with
    mandatory drug treatment once released, hopefully the deterrent effect of the
    penal consequences of any breach will be sufficient to prevent any lapse. The
    enforcement feature will not have served its purpose if it is the first resort
    of an offender who refuses treatment soon after entering the community.

[59]

I agree with the appellant that when deciding whether to make a
    long-term offender or a dangerous offender finding, sentencing judges should
    consider a mandatory treatment recommendation as one of the conditions of the
    order, where necessary for the particular offender and where the offender has
    demonstrated a willingness to comply. However, the sentencing judge in this
    case made no error by not making that recommendation for this offender and
    finding that he lacked the commitment to the necessary drug regimes that could
    sufficiently reduce his risk to reoffend.

[60]

I would therefore dismiss the appeal.

Released: JL December 27, 2012

K.
    Feldman J.A.

I
    agree J.I. Laskin J.A.

I
    agree David Watt J.A.

Appendix

[61]

Prior
    to the 2008 amendments, the following provisions read as
  follows:

753. (1) The court may, on application made
    under this Part following the filing of an assessment report under subsection
    752.1(2), 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, [or]

(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...



(4) If the court finds an offender to be a dangerous
    offender, it shall impose a sentence of detention in a penitentiary for an
    indeterminate period.



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.





[1]
This sentence was imposed under Part XXIV of the Criminal Code as it read before
    amendments in 2008. The effect of the amendment is not an issue on this appeal.



[2]
Materials that were entered as an exhibit at the hearing provide further
    details (Shandy-Lynn Briggs, CSC and Long
    Term Supervision Orders, CD-ROM: (Correctional Service Canada, 2008), at
    p. 6):

CSC [Correctional Service Canada] can issue a warrant
    of suspension and apprehension, which will hold the long-term offender in
    custody for a maximum of 90 days.
    Within that 90 day period, the NPB may take a decision to proceed with
    recommending the laying of an information for breach of a LTSO condition. This
    recommendation may be accepted or rejected by the Crown or police. Breaching a
    LTSO condition is a serious criminal charge with a maximum penalty of 10 years. Laying a
    criminal charge for breach of condition is the only mechanism CSC has in
    removing a LTSO offender from the community. Police can also lay a breach of
    condition charge at any time during the LTSO, under s. 753.3 of the Criminal Code. Once the police lay a
    breach of condition charge, the CSC warrant expires immediately. [Emphasis in
    original.]



[3]
Although the sentencing judge described the assault as involving forcible
    non-consensual sexual intercourse, the sexual assault incident as described by
    the trial judge involved the appellant performing oral sex on the victim,
    digitally penetrating her and intending to have intercourse but ejaculating
    before he did.



[4]
I have included these provisions as they read at the time in the Appendix to
    these reasons.



[5]
There have been minor changes in the terminology of these sections as a result
    of the 2008 amendments to Part XXIV of the Criminal Code.


