Criminal Law - Long-term Offender - Sentencing, Criminal Law - Sentencing - Joint Submission
As itemized by the sentencing judge, the offender had a substantial criminal history of offending sexually against children by “hands-on” sexual assaults and by possessing child pornography. He also breached numerous s. 810 Criminal Code recognizances intended to prevent him from offending further in this manner by requiring him to participate in treatment and counselling and restricting his access to children and child porn. Between May 1, 2008 and February 22, 2018, among other offences, he committed a sexual assault against a three-year-old, two offences of possessing child pornography, and six counts of breaching s. 810 recognizances. On August 13, 2014, he was sentenced to a penitentiary term of 42 months, which he served to warrant expiry. He was released on a s. 810 recognizance, breaching it very soon after his release. Other than the May 1, 2008, sexual assault, he committed no further “hands-on” sexual offences. The predicate offences to which the offender pled guilty were again possession of child pornography and breaching a s.810 recognizance. The Crown-initiated proceedings to have the offender designated a long- term offender under Part XXIV of the Criminal Code, which, among other requirements, obligated the Crown to prove there was a reasonable possibility of eventually controlling his risk of re-offending in the community. Crown and defence counsel came before the court with a joint submission by which it was agreed that the offender met all the criteria for designation as a long-term offender.
HELD: The sentencing judge was of the view that he did not have the jurisdiction to allow himself to be bound by a joint submission on the ultimate issue, that the offender met the criteria for designation as a long-term offender, and so ruled that he was required by law to make this finding himself, free from any agreement between Crown and defence. As such, he embarked on a detailed analysis of all the criteria, ultimately finding he was not satisfied there was a reasonable possibility of eventual control in the community of the risk of the offender re-offending sexually against children by possessing child pornography or by sexually touching them. Upon reviewing the sentencing materials, considering the submissions of counsel, and the law, and weighing a number of factors, including the offender’s own statements that he preferred to remain in jail so did not see jail as a deterrent; his failure in the past while prohibited from possessing child pornography to resist his urge to possess it; the opinion of the court appointed assessor and that expressed in the Correctional Services of Canada records that extensive and intensive sexual offender treatment while in custody failed to be absorbed by the offender and did not prevent him from accessing child pornography; the failure of libido-reducing drugs to have any effect on his offending; the offender’s contorted view of children as sexual objects; and the uncertainty of programming in the community sufficient to address his deep-set criminality, the sentencing judge came to the conclusion that he was not satisfied of the reasonable possibility that the risk of the offender doing serious harm to children could ever be controlled in the community, and so would need to sentence the offender for the offences for which he was convicted without recourse to Part XXIV of the Criminal Code.