 |
| John L. Hill |
His offence involved taking the girl to a stairwell in Toronto’s Eaton Centre, choking her and forcing her to engage in oral and vaginal sex. He was convicted of sexual assault, sexual interference and choking to assist in the commission of sexual assault following trial. At the time he committed these offences, the appellant had no criminal record.
Earlier, on July 30, 2019, Ouedraogo had committed another violent sexual assault and robbery against a different complainant. In that case, the complainant was sleeping on a park bench. Ouedraogo, masked with a bandana, attempted to force penile penetration of the sleeping woman. A passerby disrupted his attack.
In that case, a judge of the Ontario Court of Justice convicted the appellant of disguising himself with the intent to commit an indictable offence, including sexual assault with a weapon, sexual assault, robbery and failure to comply with his release order. A six-year sentence followed by a total of 10 years under the Long-Term Supervision Order (LTSO) was imposed. The appeal of the Ontario Court of Justice sentence was dismissed (R. v. Ouedraogo, 2025 ONCA 444).
Ouedraogo has also been subject to at least six misconduct findings while incarcerated, which include altercations with staff, threats, assaults and smearing feces on another inmate’s window.
For the Eaton Centre assault, Ouedraogo received a 6.5-year sentence, less time spent in pre-sentence custody, lifetime prohibition orders under ss. 161(a)-(c), and a 10-year LTSO. He held that the sentence was to be consecutive to the Ontario Court of Justice sentence.
Ouedraogo appealed his sentence. The Ontario Court of Appeal released its decision on July 29 (R. v. Ouedraogo, 2025 ONCA 566). The Court of Appeal reiterated that a sentencing judge has broad discretion when imposing a sentence. Because the application of the sentencing factors depends on the unique circumstances of the offender, appellate intervention is only justified if the sentencing judge has made a clear error in principle or imposed an unfit sentence: R. v. Lacasse, [2015] 3 S.C.R. 1089; R. v. Friesen, 2020 SCC 9; and R. v. Shropshire, [1995] 4 S.C.R. 227. Nonetheless, there were two issues on which the appeal court commented that deserve our attention.
The first issue is whether a second LTSO should be issued. Ouedraogo agreed that a consecutive sentence was suitable since this trial was separate from the Ontario Court of Justice trial and conviction. However, he argued that no LTSO should be imposed because the appellant was already subject to a 10-year LTSO under the Ontario Court of Justice sentence, and both offences were taken into consideration when that sentence was imposed.
The appeal court determined that issue estoppel does not apply to individual sentencing decisions. While the Crown may not introduce evidence that contradicts findings made in an accused’s favour in a prior LTSO proceeding, this is to ensure fairness to the accused and prevent inconsistent verdicts: R. v. Mahalingan, 2008 SCC 63. However, this does not mean there cannot be two verdicts in separate LTSO proceedings. The Criminal Code explicitly states that an offender can be subject to more than one LTSO. Section 755(2) of the Code specifies that the total periods of long-term supervision an offender is under at any one time must not exceed 10 years.
The second notable comment in this judgment concerns the sentencing judge’s order that Ouedraogo “submit to any actuarial, phallometric, or other testing as required by [his] LTSO supervisor.”
Phallometric testing, also known as penile plethysmography (PPG), is a controversial tool used primarily in forensic and clinical settings to assess sexual arousal patterns — typically in males — by measuring blood flow to the penis in response to various audio or visual stimuli. It’s often used in the assessment of individuals charged with or convicted of sexual offences, especially those involving children.
Such testing became common at the Warkworth Sexual Behaviour Clinic, established under contract with Dr. Howard Barbaree in 1989. Approximately 80 offenders were treated each year, and some had to retake the program after completing it. Objections to being hooked up to the testing device were frequent. Many prison law lawyers objected to their clients participating due to the limited validity and reliability of the process. Results could be manipulated by subjects (for example, through distraction techniques or mental imagery). Some individuals may not exhibit measurable responses, even when aroused. Stimulus sets (usually pornographic films) do not always encompass the full range of possible interests or may produce false positives/negatives. Inmate Philippe Clement went through the program twice and was considered a treatment success and worthy of reduced security. At Beaver Creek Minimum Security Institution, he walked away and sexually assaulted a woman in a nearby town. He told me the testing was a joke. He knew he was incapable of achieving an erection.
The appeal court rightfully struck down the order for PPG. Without the offender’s consent, there is no jurisdiction to order phallometric testing as there is no provision in the Code to allow such an order: R. v. Bird, 2019 SCC 7.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.