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| John L. Hill |
A.S. entered a guilty plea to various offences including sexual assault and child pornography, all involving minor teenage children. Statistics Canada reports that between 2014 and 2020, incidents of online sexual offences against children were on the rise (50 incidents per 100,000 population in 2014 to 131 cases per 100,00 in 2020). Technology and the Internet are linked with the increases. Men are overwhelmingly the offenders. It is therefore all the more surprising, and seemingly more egregious, when the offender is a woman.
A.S. was designated as a dangerous offender with an indeterminate sentence imposed. Her psychiatric diagnosis include that she had a borderline personality disorder as well as a non-exclusive pedophilic disorder, meaning she liked both boys and girls in incestuous sexual encounters.
At the time after her guilty plea when the dangerous offender designation was made, counsel asked the court to impose a determinate sentence and long-term supervision order. Justice R. Cameron B. Watson of the Ontario Court of Justice refused and imposed an indeterminate sentence. A.S. appealed (R. v. A.S. 2023 ONCA 290).
With the facts not in dispute, defence counsel was left with the task of trying to overcome any inherent prejudices that might lie with the three-judge panel hearing the case by strict application of the law.
The first argument proposed was that s. 753(1), the section of the Criminal Code that deals with dangerous offenders, does not preclude a sentencing judge from considering future treatment prospects before designating an offender as dangerous. It was well established in R. v. Boutilier [2017] 2 S.C.R. 936, that to obtain a designation of dangerousness resulting from violent behaviour, the Crown must demonstrate beyond a reasonable doubt, inter alia, that the offender represents a threat to the life, safety or physical or mental well‑being of other persons.
Before designating a dangerous offender, a sentencing judge must be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. Intractable conduct means behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.
All the evidence adduced during a dangerous offender hearing must be considered at both the designation and penalty stages of the sentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention.
In this case, counsel argued, the sentencing judge failed to consider future treatability at the designation stage and his reasons were inadequate. The Appeal Court bench held that it was clear on the record that the trial judge was familiar with the Boutilier requirements and relied on a civil case, Levac v. James 2023 ONCA 73 to find that adequacy is contextual, and includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge. In general, reasons are to be read as a whole with the presumption that the trial judge knows the record and the law and has considered the parties’ arguments.
Of greater concern, defence counsel stated was that the trial judge failed to consider restraint and ignored evidence that a less restrictive penalty could be imposed. Psychiatric evidence adduced at trial showed that A.S. was a low to moderate risk of violent and sexual recidivism. Further, a Correctional Service of Canada (CSC) representative testified there were treatment programs available for her while incarcerated.
Not good enough, the Appeal Court decided. Her multiple psychiatric diagnoses make treatment options difficult. Since female pedophiles are few, an actuarial risk assessment cannot be relied upon. The public still needs protection from this woman after her long-term supervision order expires. The appeal failed because nothing persuaded the court that the sentencing judge made an error in law. He deserved to be given deference in the imposition of the penalty he assessed.
So even though a psychiatrist and a CSC representative provided expert opinion evidence regarding the threat to public safety, we must accept that the appellate judges possess inherent knowledge that this offender will reoffend in future. This is a matter to protect children in years to come, not an exercise in prejudice. Defence counsel have it tough. When you can’t plead the facts plead the law. Even that doesn’t always work.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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