IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On September 16, 2016 Mr. Caston, after electing to be tried in Provincial Court, pled guilty to the following offence:

[2]           On the same date, Mr. Caston also pled guilty to:

[3]           An application is now being made with respect to the sentencing on the sexual assault indictment for a designation that Mr. Caston is a dangerous offender and that he be sentenced to an indeterminate sentence.  The defence opposes both the designation and the indeterminate sentence.

[4]           In support of the application, extensive documentation was exhibited and eighteen witnesses were called by the Crown.  A lengthy Agreed Statement of Facts was entered as Exhibit 2.  The defence elected to call no evidence.  I do not intend to summarize the entirety of the evidence that I have read and heard.  I have taken all of it into account.  I do intend to refer to only those parts of the evidence which are important to the resolution of the issues raised by the particular circumstances of this sentencing.

[5]           The Crown seeks a designation that Mr. Caston is a dangerous offender relying on three of the four bases set out in s. 753 of the Criminal Code.  The disjunctive phrasing of s. 753 permits such a separate consideration of each of the three routes to the dangerous offender designation.  The three bases relied upon by the Crown are s. 753(1)(b), 753(1)(a)(i) and 753(1)(a)(ii).

[6]           In the event that the evidence satisfies me beyond a reasonable doubt that Mr. Caston is a dangerous offender then the Crown seeks that, of the sentencing options available, Mr. Caston be sentenced to an indeterminate period of incarceration.  In the event that I am not so satisfied then, in the alternative, the Crown seeks a Long-Term Offender designation.

[7]           The Defence submits that the evidence ought not to satisfy me that Mr. Caston be designated a dangerous offender.  However, in the event that I am so satisfied the defence submits that Mr. Caston not be sentenced to an indeterminate period of incarceration but to a designation as a Long-Term Offender.  It is, however, the primary position of the defence that the evidence does not even support the finding of a Long-Term Offender designation and Mr. Caston be given a conventional sentence.

[8]           Accordingly, after I make findings of fact I shall consider, first, each of the three routes to a finding of a dangerous offender.  Second, I shall consider the appropriate sentencing option and disposition given the finding that I make.

[9]           A significant part of the evidence in this sentencing was contained in the documentary exhibits of which Exhibit 1 was the most voluminous.  It contains roughly 3,100 pages of reports and records of the many years of treatment and supervision of Mr. Caston.  Eighteen witnesses testified for the Crown of whom six were psychologists and five were psychiatrists.  It was not suggested that any experts gave evidence outside of their area of expertise.  For the most part, the question that arose from the experts’ evidence was the weight to be given to certain opinions offered.  This was particularly the case with the court ordered assessor, Dr. Kulwant Riar.

[10]        The volume of the documentary evidence created an evidentiary concern.  There was simply too much material for counsel to refer to each entry or even each group of entries.  Therefore, I was left to review many of the records myself.  I did so, reading quite closely the institutional records and the forensic records.  I advised counsel that I was doing so and left it to them to bring to my attention any specific records that were disputed.  Defence counsel raised in their submissions the proposition that documentary evidence ought to be treated with some care given that it was created for a specific purpose.  For myself or an expert to use that evidence without regard to that purpose risked giving the evidence more weight than it ought to have in the defence submission.  I have kept that submission in mind with respect to all documents, especially those where no dispute was brought to my attention.  I have also kept in mind general considerations of reliability with respect to all documents.  Where the evidence provided by documents is disputed, I will make a determination of the issue raised.

[11]        I will commence with findings as to the predicate offence, then summarize the circumstances of the offender.  For the purposes of the issues raised by this sentencing, the extensive history of the treatment and supervision of Mr. Caston requires a thorough summary.

[12]        On February 10, 2016 Mr. Caston contacted his treating psychologist, Dr. Thomas, and advised that he was unable to make his appointment for noon that day.

[13]        At approximately 1:40 that day, a five year old boy, T.G. was on a school field trip with his kindergarten class at the public library in downtown Vancouver.  His mother was one of the chaperones.  At that time, T.G. went into the public washroom alone while his mother waited with two female children in the area outside of the washroom.  Mr. Caston entered the washroom as T.G. was at the urinal.  When T.G. finished using the urinal, Mr. Caston used his hand to fondle T.G.’s exposed penis.  Mr. Caston took T.G. into a washroom stall, pulled down his pants and fondled T.G.’s penis with his hand.  T.G. started to cry and told Mr. Caston that he had to go catch his bus.  Mr. Caston told him to be quiet.  T.G. pushed on the door of the stall in an attempt to leave the stall.

[14]        At this time another male, Mr. H., entered the washroom.  He heard a whimpering sound coming from a stall and saw T.G. and Mr. Caston come out of the a stall and leave the washroom.  Once outside the washroom, Mr. Caston walked in the opposite direction of T.G.  Mr. H., seeing this, spoke with T.G.’s mother and T.G. said “that man touched my penis” referring to Mr. Caston.

[15]        Police attended and arrested Mr. Caston for sexual assault.  The police subsequently discovered that Mr. Caston was bound by a section 810.1 recognizance.  Condition 9 of that recognizance prohibited Mr. Caston from being alone with any child under the age of 18 years.  The police then arrested Mr. Caston for the additional offence of breach of his Recognizance to which Mr. Caston responded “yeah I know.”

[16]        Mr. Caston provided a police statement later that day confirming the sexual assault and providing detail as to his exact actions.  No issue was taken as to the admissibility of the statement.  Mr. Caston said that he talked quietly to the boy and guided him to the handicap stall.  He asked the boy to be quiet.  The boy said that he had to go and that he was going to miss his bus.  T.G. physically tried to go but Mr. Caston guided him back to where he wanted T.G.  At about this time the boy started to cry.  Later in the statement, Mr. Caston told the police that the boy’s reaction to being touched was that the boy was enjoying it.  Mr. Caston told the police that he heard the other male in the washroom (Mr. H.) and would have done it longer if Mr. H. were not there.  Mr. Caston also told the police that if the boy had said no he wouldn’t have stopped.  “This child can’t consent”, he later volunteered.  He also admitted that he had visited the library 30 times in the previous two months and was “trolling” for victims at the library.  He had been planning his actions for the past three to four days and went to the library the day before but no opportunities presented themselves.  He had been at the library on February 10 since it opened.  When it was suggested that T.G. was not the first one given how much time he had spent at the library, Mr. Caston replied, “No, it wasn’t, but I’m not gonna say.”

[17]        It is of note that, in addition to the February 10, 2016 appointment that he had cancelled, Mr. Caston had had an appointment with his treating psychologist, Dr. Thomas less than one month earlier on January 14, 2016.  By virtue of what he said in his statement, Mr. Caston was already ‘trolling’ for children at the library by the time of that appointment.

[18]        Crown counsel sought a finding that what Mr. Caston said in his statement was proven beyond a reasonable doubt such that I could make use of the additional details in arriving at an appropriate sentence.  I have reviewed the entirety of the statement.  At some points Mr. Caston chooses to answer questions and at other points he does not.  There is absolutely nothing which suggests that the statement is other than an exercise of Mr. Caston’s free will.  There is nothing in the circumstances or the words spoken that causes me any concern as to the reliability and trustworthiness of what Mr. Caston says in the statement itself:  R. v. Ziegler, 2012 BCCA 353 (CanLII), [2012] B.C.J. No. 1755.  Accordingly, I accept as proven the facts as contained within the statement made by Mr. Caston and will consider it in arriving at the appropriate sentence.

[19]        Mr. Caston was born on February 16, 1962, which makes him now 57 years of age.  He was adopted at approximately two months of age.  At age four he was assessed and described as slow and suffering from cerebral palsy.  He was incontinent well into his school years and was prone to having severe temper outbursts.  He was prescribed Mellaril, an anti-psychotic drug at age five.  Dr. Riar was to later testify that this prescription was unlikely to occur nowadays given Mr. Caston’s age and the possibility that the behaviours were not as a result of any psychosis.  Mr. Caston was placed in special classes and moved amongst schools including the Tranquille School and to treatment centres.  When he came to be administered IQ tests, he received full scores between 77 and 85.  He remained living at home until age 16 when he was sent to the Chrisholme Residential Farm and Training Centre, a home which focused on boys described at that time as retarded.  He was asked to leave, Mr. Caston said, as he sexually assaulted a disabled 14 year old boy.  It was roughly in this time period that Mr. Caston’s parents declined to have him take sexual offending counselling.

[20]        So began many years of attention paid to Mr. Caston’s sexual offending behaviour.  That history will be summarized below from the evidence given and the records contained in Exhibit 1 under the heading ‘History of Supervision and Treatment’.

[21]        In October 1987 (at 25 years of age), he went to reside at the Lookout Emergency Aid Resource and remained a resident there for approximately 11 years.  He later moved to the Marble Arch Hotel where he again remained for many years.  His contact with his family appears to have been almost non-existent over the years.  He describes himself as a loner and there are few references to any friends or social life in the materials.  He has survived on a disability income.  Combing through the volumes of documents, I was able to locate one year when he was employed at an antique shop although it is unclear whether it was regularly paid work.  He collects licence plates.

[22]        Mr. Caston’s criminal record contains seven entries.  His first criminal conviction is at age 22.  The offence date is contained in brackets:

[23]        Therefore the record shows that Mr. Caston committed four offences while on court ordered probation.  Two of those offences were sexual offences.  Once the 2016 offences are added, by virtue of the plea at the outset of this sentencing, there are three occasions where Mr. Caston has committed sexual offences while on a court order.  However, it must be noted that apart from these actions there are no breach of probation convictions.

[24]        Emphasis was made in submissions that the criminal record indicates two significant gaps in sexual offending, first, from 1987 to 1997 (a gap of approximately 10 years) and, second, from 2000 to 2016 (a gap greater than 15 years).  Such gaps, it was submitted, are important evidence to both the dangerous offender designation and to the penalty which is to be imposed.

[25]        In order to evaluate the issues raised by the criminal record, it is necessary to review in depth the circumstances of those offences with emphasis on those which involve sexual behaviour.  This review is important to understanding his offending generally but also to a later portion of these reasons that considers the “pattern” of conduct element to the dangerous offender designation as contained in two routes to that designation, s. 753(1)(a)(i) and s. 753(1)(a)(ii).

[26]        On August 4, 1984, Mr. Caston sexually assaulted a three and a half year old boy, V.E.  Mr. Caston was staying at his parent’s home without their permission while they were on holidays.  V.E. was the son of a neighbour and was known by the nickname ‘B.’.  Mr. Caston had been watching V.E. for several months.  Mr. Caston got V.E. into his parents’ yard by offering the child some cherries.  Once in the yard Mr. Caston unzipped V.E.’s shorts and fondled the boy’s penis.  He then sent the boy home.  Approximately 15 minutes later, the boy came back to pick more cherries.  Mr. Caston fondled the child’s penis again.  The child then went to play on the sundeck, where Mr. Caston fondled him again.  V.E. left, then, approximately fifteen minutes later, the child returned to play with a cat on the sundeck.  Mr. Caston fondled the boy inside the house and had the boy fondle himself.  Mr. Caston placed his penis on the child’s penis and then masturbated himself to ejaculation.  According to V.E., “he peed on me with white stuff.”  Mr. Caston then gave V.E. a cookie and fondled him again.  Mr. Caston wrote about this offence in an autobiography that he gave to Dr. Peter Johnson in 1988.  His account of his thinking at the time of this offence will be quoted when summarizing Dr. Johnson’s evidence.

[27]        Mr. Caston remained in custody for approximately five and a half months before pleading guilty to sexual assault and being sentenced to, inter alia, three years’ probation on January 25, 1985.  The conditions of the probation order included reporting weekly to a probation officer, residing at Pioneer House until a permanent residence was obtained, attend psychiatric counselling at the Sex Offenders Treatment Centre Forensic Outpatient Clinic and to have no relationship of any kind with any child under the age of 16.

[28]        Mr. Caston was more than two years into his probation when he committed his second sexual assault.  Between May 17 and 21, 1987, Mr. Caston was staying with a family who befriended him.  The family included a five year old boy, J.L.  On the first morning of his stay (May 17), Mr. Caston went into J.L.’s room while the boy was sleeping and lifted the covers to look at the boy’s penis.  He saw that J.L. was naked from the waist down.  Mr. Caston left the room without touching the boy.

[29]        On the second and third mornings (May 18 and May 19) of his stay, Mr. Caston again went into J.L.’s room while the boy was sleeping.  Mr. Caston touched the boy’s penis through his pajamas.  J.L. did not wake up.  Mr. Caston left the room but watched the boy from the living room.  On the fourth morning (May 20), Mr. Caston went into J.L.’s room.  He fondled the boy’s testicles and penis over top of the child’s pajamas and squeezed the tip of the child’s penis.  J.L. was asleep the whole time.  On all four occasions, Mr. Caston had an erection.

[30]        Mr. Caston was asked to leave the residence for other reasons but returned the next day and tried to cut himself with a toy knife in front of the child.  A few weeks later Mr. Caston disclosed the sexual offending of J.L. during a counselling session and stated that he had made love to 30 children.  He repeated his admission of the sexual assault of J.L. to the police.  He also stated these admissions to Dr. Wydra in September 1987 adding that he confessed his actions as he had urges to harm the child.

[31]        Mr. Caston gave a statement to the police describing in detail his actions with J.L. as set out above.  He also said to the police, “[i]f I see [J.L.] alone, I’m telling you the God dam truth, I’d molest him”.  He was asked if he would like J.L. to do things to him and he said he is not that way: “I like to do it to children, I don’t really like them to do it to me.”

[32]        Prior to staying with the family, Mr. Caston was told by Karl Friesen, his psychiatric social worker, and Fred Hitchcock, his probation officer, on April 29 and April 30, 1987 (i.e. about three weeks before the offence) to have no contact whatsoever with J.L.

[33]        Although this will be referred to again in the context of his ongoing treatment, it is important to note that in May 1987, Mr. Caston was taking 300 mg of antiandrogen medication, specifically cyproterone acetate (CPA).  He received that medication on May 4 and 11, 1987.  He missed his scheduled appointment on May 18, 1987 to obtain his medication.  He received it again on May 25.

[34]        While the records are not as complete as they might be, it appears (from the fact that two psychologists saw him in custody prior to his sentencing) that he was in custody from approximately June 4, 1987 until his sentencing on September 28.

[35]        Mr. Caston was placed on probation for three years with the conditions that he live at the Lookout facility, attend psychiatric or other counselling as directed, abide by a curfew and not be in the company of any person under the age of 16 unless they are accompanied by a responsible adult.

[36]        In August 1997 Mr. Caston was residing at the Lookout Services Society in Vancouver.  On August 14, 1997 while Mr. Caston was at a Lookout sponsored camping trip, one of the staff brought mail to his room.  The staff member looked inside the top drawer of the dresser and found a full loose-leaf binder.  The binder contained several pages of photographs, all cut out from magazines, showing mostly naked pre-pubescent males, focusing on the genital areas and the buttocks of these males.  The police attended and searched the room.  They found seven similar binders (for a total of 1,246 images) as well as a large quantity of cut out photographs not yet in binders.  The photographs were from nudist magazines, anthropological textbooks, as well as neo-natal and pre-pubescent child care publications.  Mr. Caston told Sharron O’Brien, who prepared a pre-sentence report, that he possessed the images in order to manage his sexual urges toward children.  In speaking with Dr. Levy, the psychiatrist who prepared a pre-sentence report, Mr. Caston said it took him 10 years (i.e. since 1987) to put the binders together.

[37]        At sentencing, Mr. Caston was placed on a very detailed, 11 condition probation order.  The fact of such a detailed and far-ranging probation order for a possession of child pornography conviction suggests the seriousness with which Mr. Caston’s prior behaviour was viewed.  The conditions included that he participate in any assessment to assist his rehabilitation, no go to residences, public parks, swimming areas or seek employment where children were.  He was to provide access to his residence to his probation officer and must not be in the company of a child.  The order was for the three year term recommended by the preparer of the pre-sentence report.

[38]        On January 31, 2000 Mr. Caston was visiting a woman, who had befriended him a few years earlier, at her residence.  He visited this woman, a grandmother, on a regular basis.  On the day of the offence, the grandmother had left him alone in the apartment while she and her daughter left to pick up her older grandchild from school.  Also in the apartment was four year old N.T.W.  When the grandmother returned, the door was locked.  It had been unlocked when she left.  Although there is not a reference in the Agreed Statement of Facts to the amount of time the grandmother was away from the apartment, there is such a reference in her statement.  There was no dispute raised to the statement.  She told the police that she was away from the apartment for 14 minutes.  That tape recorded statement was given just over three hours after the events.  Obviously it is very precise evidence.  In the totality of the circumstances, I have concluded that the statement of the grandmother that Mr. Caston was only alone with the child for 14 minutes is credible and trustworthy and I find it as a fact.

[39]        When she entered the apartment she saw Mr. Caston and her four year old grandson lying on a bed facing each other.  N.T.W. had his pants down below his hips and she could see his naked buttocks and penis.  She could see Mr. Caston touching the boy’s penis with his hand.  Mr. Caston appeared to have his pants on but when the grandmother entered the room, Mr. Caston jumped up and she saw that his penis was outside of his pants.  She called the police who arrived and arrested Mr. Caston.  His presence in the company of N.T.W. was contrary to the conditions of his probation order.

[40]        In addition to these facts, Crown counsel submitted that other facts about Mr. Caston’s behaviour toward N.T.W. had been proven beyond a reasonable doubt in this sentencing proceeding.  The additional facts arise from statements made by Mr. Caston to Dr. Thomas in 2015.  The statements are that Mr. Caston began molesting N.T.W. at one month of age by inserting his finger into his anus.  Mr. Caston stated that the infant got an erection and ‘had his first orgasm’.  He assaulted the boy as soon as the opportunity presented itself.

[41]        The Crown submits that I ought to find these facts proven beyond a reasonable doubt as other evidence supports that this admission by Mr. Caston is true.  The defence says that I ought not to find the admission of Mr. Caston to be true.  The defence urges that Mr. Caston has an acknowledged history of saying things that are untrue in order to shock the listener.  That history emerged from the evidence of Dr. Kerr and Dr. Johnson.  Additionally, the offending behaviour described does not fit Mr. Caston’s typical behaviour and therefore there is doubt that his statement to Dr. Thomas is true.

[42]        The other evidence relied on by the Crown gives Mr. Caston the opportunity to have acted as the statement says.  The Agreed Statement of Facts, entered as Exhibit 2 in these proceedings, states that N.T.W.’s grandmother, B.M., had befriended Mr. Caston ‘a few years earlier’ than the date of the offence when N.T.W. was four years old.  In addition, Ms. B.M. had testified at Mr. Caston’s mischief trial in early 2001 that she had known him ‘for a while.’  If accepted, this evidence supports that Mr. Caston had the opportunity to act as he said he did while speaking to Dr. Thomas.

[43]        These facts were challenged at the same trial by Mr. Caston who testified that he had only met Ms. B.M. the day before the offence.  Her Honour Judge Godfrey, had to resolve this dispute and did so by finding that Ms. B.M. was a credible witness.  Certainly there could be no reason for Ms. B.M. to lie about when she befriended Mr. Caston.  While Judge Godfrey’s finding is of some assistance, the more important consideration is that Mr. Caston’s association with the grandmother is contained in the Agreed Statement of Facts.  That being the case, I find that there is support for the truthfulness of Mr. Caston’s statements to Dr. Thomas.  I also find that Mr. Caston’s admissions have the necessary reliability particularly given that they are admissions that are against his interests.  Why would he say such a thing to Dr. Thomas if it were not true?  There is no discernible motive for him to mislead her.  Dr. Thomas testified that she had a good rapport with Mr. Caston making it less likely that he would be trying to shock her and more likely that he would be candid with her.  I also note that the content of the admissions have about them the cognitive distortion that peppers Mr. Caston’s discussions of his sexual activity.  That too adds to its reliability.  The actions are also more consistent with his offending behaviour in that he prefers to act on children rather than them on him.  The act of digital penetration may be different from Mr. Caston’s typical behaviour, as the defence submits, but is not so different as to raise a doubt about the reliability of his statement.  All of these factors lead me to conclude that his statements to Dr. Thomas about his offending with N.T.W. are proven beyond a reasonable doubt.

[44]        The importance of this finding ought to be referred to at this point.  The first implication is that Mr. Caston’s offending behaviour has to be seen as occurring in 1996 thereby reducing one of the gaps in his offending behaviour by approximately one year.  Second, this finding renders his statements to his probation officer Ms. Tobin (which interaction will be summarized below) that he was staying away from children during this time to be deceptive.

[45]        He remained in custody from January 31, 2000 until February 17, 2000.  On December 6, 2000 Mr. Caston was sentenced to 45 days in custody and three years’ probation.  The terms were that he was to attend psychological and psychiatric assessments as directed, not to be in the presence of any person under the age of 18 unless accompanied and supervised by an adult and not to attend any public park or swimming area where persons under the age of 14 were present.

[46]        These two offences of public mischief involve Mr. Caston making false allegations that he had been sexually assaulted by individuals against whom Mr. Caston bore a grudge.  I will return to these offences when considering the ‘likelihood of future injury’ element of s. 753(1)(b) as I have concluded that the offences and the findings made by the sentencing judges in those cases and the diagnosis made by the treating specialists are relevant to that element.

[47]        In summary, Mr. Caston’s criminal record reflects two prior sexual assaults and one sexual interference.  All were against male children.  For each he served months in custody prior to sentencing, no doubt due in part to the seriousness of the offences.  He went approximately ten years (from September 1987 to the date of the offence of August 1997) until his next relevant offence, the possession of child pornography.  While on probation for that offence he committed the sexual interference offence for which he received, again, the maximum period of probation.  Each probation order just mentioned contained detailed conditions for his close supervision.  Having said that, even taking into account the public mischief convictions, he went just under 13 years from the last conviction until he committed the offence of February 10, 2016.

[48]        It is important to bear in mind, however, that one of the results of these convictions were probation orders that kept Mr. Caston under supervision for lengthy periods of time until late 2004.  He returned to supervision in 2013.  With that in mind, I turn now to a summary of the evidence of Mr. Caston’s supervision and treatment.

[49]        Mr. Caston’s supervision and treatment are, clearly, two very different aspects of his management.  Supervision is the monitoring of his behaviour, while treatment is the purview of health professionals in managing his behaviour.  That difference will become very clear when the ‘three-pronged’ approach to managing Mr. Caston is discussed with respect to his future treatment prospects.  Nevertheless, supervision and treatment are summarized together as they occur at the same time over a lengthy period of time.  As well, Mr. Caston’s supervision and treatment raise similar factual issues that are important as to the conclusion as to designation as a dangerous offender and the appropriate sentence.  Those issues include:  the opportunities of treatment offered to Mr. Caston, the nature and suitability of that treatment, and the impact of that supervision and treatment on his offending behaviour.  Of particular importance to his treatment prospects is the history of his medication usage and his rapport with those who are providing him support.

[50]        Given its cumulative duration of almost twenty years, Mr. Caston’s supervision and treatment is separated into specific periods of time.

[51]        Mr. Caston’s behaviour difficulties as a child have already been referred to.  They occur in the context of a person described as ‘slow’ and suffering from cerebral palsy.  The relevant treatment of Mr. Caston began when he was a teenager.  Mr. Caston had shown maladaptive, bizarre behaviour since age 14 when he was enrolled in the Living Management Programme at Variety Treatment Centre in Surrey.  At age 15, he went for his second full assessment at the Woodland School, one of the problems being his sexual overtures towards younger boys.  It was recommended he be referred for sexual counselling.

[52]        At age 16, he was sent to Chrisholme Society Residential Farm and Training Centre.  He had been referred there as a result of inappropriate sexual behaviour that had been difficult to control.  While there he showed some progress but it was noted that he engaged in frequent masturbation using pictures of young children as visual stimulus and was masturbating farm animals.  In July 1979, it was noted that he made a sexual advance to a two year old boy who was visiting Chrisholme.

[53]        Mr. Caston was assessed on November 13, 1979 by a psychologist, Dr. Leard.  After testing, Dr. Leard concluded that the ‘retarded’ label which Mr. Caston “had been carrying around for some time be re-examined”.

[54]        A psychiatric report at the same time prepared by Dr. Murdoch gave more detail as to Mr. Caston’s behaviour.  It noted that Mr. Caston was observed to be in sex play with a two year old boy and was known to make inappropriate sexual comments.  His behaviour was also noted to be anti-social.  “It was noted that he was on a behaviour modification programme while in the residence and did very well, but when outside the programme, his unacceptable behaviour immediately returned . . . There is concern about his future placement as he needs total supervision”.  After summarizing interviews with the social worker, Mr. Caston’s mother and James, Dr. Murdoch concluded, “[s]uperficially he appeared to understand that his behaviour was unacceptable but gave the impression that he was not able to control his basic impulses”.  He then continued, “[h]is anti-social behaviour continues to be stealing and lying.”  The diagnosis was personality disorder.  Of this diagnosis, Dr. Wang and Dr. Riar, both psychiatrists, testified at this hearing that caution should be used with that diagnosis of an adolescent.

[55]        In the spring of 1980, Mr. Caston had been involved in a sexual act with a fourteen year old boy who had cerebral palsy affecting all four limbs and who was partially deaf.  There was significant concern about the impact on Mr. Caston if he were charged and proceeded with in the criminal justice system.  As a result he was assessed, it appears at the Forensic Psychiatric Institute, after which it was said, “[i]nformation is remarkably consistent, history of physically and sexually aggressive behaviour toward younger weaker children.  Expressions of remorse and a return to the behaviour as soon as opportunity presented itself.”  After referring to their assessment of Mr. Caston, it is stated, “[t]hus this patient appears to have few intellectual, neuropsychological or emotional resources.”  A summary of his school records concluded, “James has been provided with the best available [emphasis in original] treatment and learning opportunities. . . The assessments at age four, eight, nine, fifteen and seventeen were well timed and purposeful.  Almost every recommendation made by the assessment teams was put into practice.”  Despite this level of attention it was concluded that “James may need external controls continuously in order to refrain from sexually deviant behaviour of a criminal nature.”

[56]        About this time his IQ was tested and he had a full IQ score of 85.

[57]        In 1980, he was admitted to Riverview Hospital where he remained for just under two years.  During that time he received a variety of treatments including aversion therapy with respect to his attraction to young boys.  Mr. Caston was to provide very different descriptions of this treatment in the years to come.  He told Dr. Alan Posthuma, a psychologist, in 1984 that the therapy helped as it was over two years after the therapy stopped before he offended again.  In 1998, he told the preparer of his pre-sentence report that the therapy did not help him with his sexual problems.  In 2015, he told Dr. Thomas that there was not any drop in his interest in boys as a result of this treatment.

[58]        The reliability of Mr. Caston’s self-reports about his treatment to those attempting to work with him is a very important topic in considering his treatment prospects.

[59]        Mr. Caston’s diagnosis while at Riverview Hospital was pedophilia.

[60]        After leaving Riverview Hospital, he went to live, in 1982, at Pioneer House, a psychiatric boarding house but left after approximately two years as the rules were too strict.  It was in 1984, during which time he was transient that his first offence occurred.

[61]        On October 25, 1984, Dr. Posthuma wrote an assessment report prior to Mr. Caston’s sentencing for his first criminal offence.  Dr. Posthuma testified at this hearing that Mr. Caston told him of his sexual activity with young boys as well as his nightly masturbation to fantasies of young boys.  Dr. Posthuma stated in his report that “[i]t would appear that Mr. Caston has not had any systematic treatment of his sexual problem.  The program he underwent at Riverview Hospital was not tailored to Mr. Caston’s form of sexual problem and thus only partially effective”.  In cross-examination at this hearing, Dr. Posthuma stated that he did not have the records from Riverview at the time of his assessment.  By ‘partially effective’, Dr. Posthuma was referring to Mr. Caston still masturbating to deviant images.

[62]        Mr. Caston told Dr. Posthuma in 1984 that his sexual history consisted of five experiences which he detailed for the doctor.  Dr. Posthuma stated in his report that Mr. Caston’s problem is not adequately described as a pedophilic one.  Dr. Posthuma went on to opine that, given Mr. Caston’s limited intellectual functioning, “his sexual behaviour is more in the form of the sexual exploration that would take place between mutually consenting boys of that age”.  He did detect some anti-social personality traits.  He went on to note in his report that “there is no question that Mr. Caston’s desire to deal with his problem is genuine.”  Amongst Dr. Posthuma’s recommendations were that Mr. Caston change his masturbatory fantasies which he had already instructed Mr. Caston to do.  In cross-examination at this hearing, Dr. Posthuma agreed that this instruction came in the one visit that he made to Mr. Caston in jail.  He also recommended that Mr. Caston have available the services of a psychologist to develop his social skills.

[63]        For the same sentencing, Dr. Clifford Kerr, a psychiatrist, prepared a pre-sentence report dated December 17, 1984.  He too testified at this hearing.  The picture presented by the report stands in contrast to that of Dr. Posthuma.  It is not nearly as sanguine as Dr. Posthuma’s report.  A focus of Dr. Kerr’s report was the treatment needs of Mr. Caston.

[64]        Mr. Caston told Dr. Kerr that he was first aroused by young boys when he was about age 13.  Dr. Kerr opined that an onset at that young of an age may result in the person being fixated.  Mr. Caston said that he had never been sexually abused.  Dr. Kerr described Mr. Caston at his interview as euphoric, that is to say enjoying shocking by expressing his views.  Mr. Caston stated that he wanted to be involved in outpatient treatment programs.  Dr. Kerr concluded that Mr. Caston has a severe psychosexual problem and a strong homosexual pedophilic drive.  Amongst his treatment recommendations, Dr. Kerr recommended sex offender treatment programming and placement in a highly structured community boarding home as part of a lengthy probation order.

[65]        He was released in January 1985 (on three years’ probation) and went to live at Pioneer House again.  In addition to his probation terms, the house rules included that he was to never leave the building unescorted.  This was later relaxed to permit clinic appointments.  His stay was summarized by Pioneer House staff as follows:  “Jim came to Pioneer House this second time already hostile to the program and staff and behavioural and medical treatments for inappropriate sexual behaviours and strict monitoring of social behaviour had little effect.  Manipulative behaviours increased under restrictions as did talk about inappropriate feelings for children and his lack of control over such feelings.”

[66]        Mr. Caston left Pioneer House in December 1986 for the Garfield Hotel in New Westminster.  At the time he was receiving 300 mg injections of CPA.  It will be remembered that he re-offended approximately six months later in May 1987.

[67]        As a result of the sentence of probation, Mr. Caston began to attend the Forensic outpatient services as of February 1985.  During this time Mr. Caston was attending a social skills program.

[68]        In a report dated February 26, 1987, Dr. Kerr summarized Mr. Caston’s progress since his release in January 1985.  He stated:

[69]        In July 1986, Dr. Kerr sought some physiological testing of Mr. Caston in order to establish a baseline prior to administering medication.  The medication anticipated was an anti-androgen medication which would block the effects of testosterone and thereby, ideally, lower the sex drive.  The result of the testing was, inter alia, that his testosterone level was at 694 ng/dl.  This value was in the normal range.  Five months into taking the injections his testosterone was at 420 ng/dl.

[70]        Injections of the anti-androgen medication commenced in August 1986 and continued for five years until August 1991.  These injections occurred at Mr. Caston’s request.  Mr. Caston expressed that he wanted to take the medication in order to reduce his pedophilic thoughts.  At the outset the injections were every two weeks, however, by December 1986 they were increased to weekly.  The increase was as a result of Mr. Caston expressing the view that the medication wore off and he would like more frequent injections.  He clearly felt for a period of time that CPA was assisting him.  In a forensic outpatient note of July 1988 (Exhibit 1, Binder 4, page 201) Mr. Caston reported that CPA helped him.  By this time he was approximately two years into his use of CPA.

[71]        Dr. Kerr was asked about the effect of Mr. Caston missing one week of his injections.  This issue is important as Mr. Caston missed a week of his injections in May 1987.  It is in that week that he offended against J.L.  Dr. Kerr opined that missing one injection ‘would not make much of a difference’.  In cross-examination, Dr. Kerr agreed that the level of the injection in Mr. Caston would taper off until the next injection.  However, he would not expect a major change in the effect of the drug by missing an injection.  He did concede that this area was not an area of his expertise.  Dr. Wang, a psychiatrist who has expertise in drug administration in the treatment of sex offenders, testified that he would not expect a total reversal of the treatment effect of 300 mg of CPA if one treatment were missed.  Dr. Alina Wydra, a psychologist, spoke with Mr. Caston regarding his 1987 offence.  Noting that in the months leading up to the offence he had been looking at baby books and going to the beach to look at children, Dr. Wydra concluded that Mr. Caston’s problem, “while perhaps exacerbated by missing his medication, is primarily one of accelerating deviant sexual desires.”  From this evidence and the evidence as a whole, I have concluded and find as a fact that the one missed injection did not play a significant role in the offence of May 1987.

[72]        Mr. Caston told Dr. Levy in 1998 that anti-androgen medication didn’t help, it didn’t stop him from doing anything.  This is contrary to what he had said in 1988.  It is also contrary to what he told Dr. Wydra, namely that the medication helped him control his sexual urges and it was his failure to take the medication on one week that led to the offence of May 1987.  What Mr. Caston has had to say with respect to medication is of importance to the issue of the utility of medication to his management and future treatment prospects.

[73]        During 1987, 1988 and 1989, Mr. Caston was supervised by the Inter-Ministerial Project.  That project engaged with individuals in the community in an intensive manner to provide them with extra support.  They saw Mr. Caston four times per week.

[74]        On September 9, 1987, Dr. Wydra performed a psychological assessment on Mr. Caston who was awaiting sentencing for his sexual assault offence as it related to J.L.  Mr. Caston told Dr. Wydra that he had a 10 year history with approximately 30 male children up to January 1985.  Since that time and the date of this offence (May 1987) he had been able to resist his sexual urges.  He said that he confessed his actions on this occasion as he had urges to harm the child in order that disclosures by the child would not result in him being discovered and apprehended.  He understood the seriousness of those thoughts.

[75]        After reviewing his treatment history, Dr. Wydra concluded with her recommendations by saying, “[e]very effort should be made to provide him with specific and concrete therapy designed to increase his ability to control his sexual urges.  Such therapy, in conjunction with his medication, has a good probability of success”.

[76]        Dr. Wydra testified at this hearing and was asked what material she had before her at the time of her report.  She testified that if she had been told that Mr. Caston had been told (as he was on two occasions on April 28 and 29 by his probation officer, Fred Hitchcock, and his psychiatric social worker, Karl Friesen) to stay away from J.L., she would ‘absolutely’ have included it in her report.  That information is not in her report.

[77]        Her report also states that Mr. Caston turned himself in and reported what he had done.  Information from witnesses and the police contained within Exhibit 1 is clear that Mr. Caston did not turn himself in.  In coming to this finding of fact, I have taken into account the detailed contemporaneous notes and reports prepared by the police which I find to be both credible and trustworthy.  When referred to that information, Dr. Wydra testified that she would have set it out in her report had she received it.

[78]        On December 7, 1987, Mr. Caston saw Dr. Peter Johnson, a psychologist, for the first time.  Mr. Caston said that he had been sexually assaulted by his mother.  Dr. Johnson was of the view that Mr. Caston was trying to create an impression that he was sick and perverted in order to shock him.  Dr. Johnson told him that he did not have to behave that way.  In 1988, for a ‘few months’, Mr. Caston continued to be seen by Dr. Peter Johnson.  Much of their time was spent on Mr. Caston’s extremely low self-esteem.  This was to be the first of two occasions in which Dr. Johnson was involved in the treatment of Mr. Caston, the second commencing in 2004.

[79]        In 1988, Mr. Caston wrote his autobiography for Dr. Johnson as a treatment tool.  A part of that autobiography was recounting his attraction to the young boy next door who he knew as B., the victim of the 1984 offence.  As an insight into Mr. Caston’s thinking, the autobiography is worth quoting at length.  The spelling mistakes are not corrected, however, the proper word is placed in brackets.  Mr. Caston wrote:  “At the time of the affense [offence] my impulsive fantasies were how I was going to play around with B. and at that time they were strong and I could not contorl [control] them see for so many times in 1983 B. running about naked and just to play and crese [caress] his nice little dink and make it hard over and over I do not have these fantasies enermore [anymore].  First of all I thouth [thought] he would like it and would be willing to let me play with his dink I thought it would make him feel good inside so I keeped [kept] watching him to see if eneybody [anybody] was aware of were [where] he was I wanted so bad to masterbate [masturbate] him it hurt not to think about it and I know it might be the last chance I would get to ever get that close to him.  Shue [Sure] I’d seen him many time with an hard on and know how long his dink could get but I only could look from a distance and and I wanted a closer look.  I kept wait for the right moment to get up the couge [courage] to get him over to my side and when the time was right I did.  The rest of this story is in my file.”  Dr. Johnson testified that the autobiography showed a clear capacity by Mr. Caston to plan his behaviour.

[80]        In August 1988, Mr. Caston was referred to Dr. Conrad Bowden as part of his probation order.  The purpose of the assessment was to aid in future treatment.

[81]        At the time, Mr. Caston was still taking 300 mg of CPA.

[82]        Testing revealed a full scale IQ of 77, meaning that Mr. Caston performed at a borderline level of intelligence.  However, Mr. Caston, in Dr. Bowden’s opinion, had the capacity to understand the treatment he was offered.  Many of the neuropsychological test results reflected an impairment.  On the MMPI (Minnesota Multiphasic Personality Inventory) Mr. Caston produced a profile strongly suggestive of schizophrenia or likely to be characterized as a chronic marginal schizoid adjustment.  He described the traits to be associated with such a profile by saying, “[t]hese individuals are chonically [sic] maladjusted and any form of psychological intervention will be of limited benefit.”

[83]        Dr. Bowden continued his testing with the MCMI (Millon Clinical Multiaxial Inventory) which he concluded is in strong agreement with the MMPI.  He went on to say of Mr. Caston, “[h]is impulse control is thought to be very tenuous and the strength of his internal fantasies and impulses and tendency towards autistic and bizarre thinking is likely to continue to get him into trouble”.  He opined that psychological intervention would be of limited benefit.

[84]        Dr. Bowden testified in this hearing and in cross-examination, Dr. Bowden acknowledged that in the 1980’s treatment for sex offenders was very much a new field.  He would have noted the treatment referred to in Dr. Wydra’s report.

[85]        Dr. Mark Levy, a psychiatrist, started treating Mr. Caston around October 1988 by continuing Dr. Kerr’s prescription of CPA.  Dr. Levy met with Mr. Caston weekly to monitor his medications but also to provide him with some respite from his loneliness.  On July 29, 1991 (at a time in which he was not on any court order) Mr. Caston was seen by Dr. Levy for the last time for approximately 7 years.  Dr. Levy noted that Mr. Caston had been attending the Adult Forensic Outpatient Clinic since 1985.  Mr. Caston’s diagnosis as stated in his report of February 11, 1992 was pedophilia, dysthymia (i.e. chronic depression) and personality disorder with anti-social and borderline traits.  Dr. Levy referred to Mr. Caston taking CPA (since 1986) and that, “[i]n spite of the former, Mr. Caston continued to admit to recurrent sexual fantasies involving children, but said he did not act on them because he was afraid of being caught and labelled as a dangerous offender.”  Dr. Levy concluded by noting that Mr. Caston continued to admit having recurrent thoughts of sex with children in order to gain an erection and orgasm at least once a day.  Mr. Caston stopped taking CPA in August 1991.  A log of every injection was contained in Exhibit 1.

[86]        In his testimony at this hearing, Dr. Levy expanded on what is meant by anti-social in the clinical context.  He gave evidence that those traits include a lack of respect for rules, lying and not worrying about the consequences.  Those with anti-social traits tend not to learn as much from experiences.  The treatment prospects for people such as this are not great:  ‘you can only smooth the rough edges’.

[87]        This was to be the first of two dealings Dr. Levy had with Mr. Caston, the next being in 1998.

[88]        Mr. Caston volunteered to work with the Forensic Outpatient clinic in 1994.  He was under no court order at the time.  The records contained within Exhibit 1 show that he began attending group therapy on January 10, 1995 attending twice per week until June 1995.  This group therapy focused on victim empathy and his crime cycle.  The defence submits that this voluntary engagement with treatment by Mr. Caston is very important to both the issues of designation and penalty.

[89]        It will be remembered that I have found as a fact that Mr. Caston during this time (approximately 1996) offended against N.T.W.  He was receiving no treatment or supervision at the time.

[90]        As has been noted, Mr. Caston was arrested in 1997 on child pornography charges and released with conditions, inter alia, to have no contact with anyone under 18 years of age or go anywhere where anyone under the age of 18 could reasonably be expected to be present.

[91]        On June 16, 1998, Dr. Levy prepared a psychiatric report on Mr. Caston as he awaited sentencing on his child pornography conviction.  Dr. Levy reviewed Mr. Caston’s history commencing with his childhood.  This review included group home records, Riverview Hospital records, and other treatment centres.  As has been noted, during his stay at Riverview (1980-1982) Mr. Caston was diagnosed as suffering from pedophilia.  Dr. Levy concluded from those records that Mr. Caston was able to control his behaviour to a certain extent as he knew how to behave in front of staff members.  However, the early onset of behavioural problems was a poor prognostic sign as the behaviours become hard to change.  Mr. Caston told Dr. Levy that what he had done in his past could have caused psychological damage.  He admitted that he still had fantasies about children several times a week.  Dr. Levy concluded that his “working diagnosis is of Paedophilia, homosexual sub-type.”  He noted Mr. Caston’s periodic alcohol abuse.  As to the risk posed by Mr. Caston, Dr. Levy concluded:  “On the positive side, although he may be personality disordered, he is not a psychopath and he now has an adult sexual partner.  Other positives include the lack of physical harm to past victims and no escalation in the frequency or severity of sex offenses.  Weighing these factors I would see him as moderate risk even without treatment.”

[92]        When asked during his testimony about treating Mr. Caston, Dr. Levy testified that treatment implies successful change.  In his view Mr. Caston’s attraction to children is not to be treated but it is to be managed.  That may be done through, first, medication and second, psychological techniques.  He was of the view that Mr. Caston would not benefit from psychotherapy because he did not have the capacity to look introspectively.

[93]        On July 16, 1998, Mr. Caston began probation supervision by the Vancouver Specialized Supervision Unit pursuant to his three year order from the child pornography conviction.  That unit worked with sexual offenders.  Ms. Wendy Tobin had been a member of it for three years by the time she met Mr. Caston.  Ms. Tobin’s supervision of Mr. Caston was to continue for four years and nine months until April 2003.  Most of Mr. Caston’s reporting to her was weekly or bi-weekly although it was every three weeks for the better part of 1999.  His hygiene was an on-going issue both at his residence and in his smell at meetings.

[94]        While she was supervising him, Mr. Caston committed his January 25 (mischief) and January 31 (sexual interference), 2000 offences.  In the previous two months (November and December 1999) Mr. Caston reported that he was staying away from children and was “not even tempted”.  On January 18, 2000, he repeated that he was staying away from children.

[95]        During her time supervising Mr. Caston, she prepared pre-sentence reports on November 28, 2000, March 21, 2001 and April 3, 2003.

[96]        Her first pre-sentence report (for the January 2000 offence) summarizes Mr. Caston’s response to supervision for the previous, approximately, two years and is worth quoting at length:

[97]        She then went on in the pre-sentence report to describe his behaviour during the preparation of the report:  “He has been manipulative, provocative, and self-focused”.  He later said that he was remorseful for the offence but, when probed, any remorse seemed unclear.  Ms. Tobin testified that his use of the word remorse was more as if it was a word that he had heard elsewhere.  He stated that if he had not been caught he probably would have masturbated the child N.T.W.

[98]        On October 23, 2000, Mr. Caston was seen by Dr. Karl Williams for a psychological assessment prior to sentencing on the January 31, 2000 sexual interference charge.  As part of his assessment Dr. Williams administered four standardized psychological tests.  In his report and after summarizing Mr. Caston’s history and the circumstances of the sexual offence for which he was awaiting sentencing, Dr. Williams expressed his views.  He stated that Mr. Caston possessed a higher level of functional intelligence than was apparent initially.  He described Mr. Caston as “a shrewd man in certain respects, capable of adjusting his presentation somewhat to create a desired effect.”

[99]        Mr. Caston stated that his sexual preference is for pre-pubescent males.  Dr. Williams, on the basis of his testing and his own clinical judgment, concluded that Mr. Caston is at high risk of sexual recidivism.  He considered Mr. Caston intelligent enough to benefit from involvement in intensive sexual offender and related counselling.

[100]     In cross-examination at this hearing, Dr. Williams agreed that gaps in offending impacts the current risk of re-offending.  However, the psychological testing he did, did not take into account Mr. Caston’s gaps in offending.

[101]     After his sentencing in December 2000, Ms. Tobin continued to see Mr. Caston weekly, who was ‘above average’ in his reporting.  On more than one occasion Mr. Caston described how long since he had offended against a child, for example saying on February 15, 2001, “it’s been almost 400 days since I had sex with a kid”.

[102]     On August 4, 2001 Mr. Caston was seen in Stanley Park staring at 40 to 50 small children.  When confronted on August 16, Mr. Caston denied he had been at the park and said he was home all week.  Having reviewed the records and listened to the evidence of Ms. Tobin, I am satisfied that Mr. Caston’s denial was untrue.

[103]     Ms. Tobin and her office ran a relapse prevention program in 2001.  Due to hygiene issues of Mr. Caston, he was unable to function in a group setting and did not attend the program.  This was remarked on by Ms. Tobin in her March 2001 pre-sentence report where she said that although he “maintains that he ‘would love to be’ in a relapse prevention group for sex offenders, he refuses to take the necessary personal hygiene steps to get into such a group”.  On October 12, 2000, Mr. Caston stated that his poor hygiene was intentional.

[104]     Part of her engagement with Mr. Caston was to have him prepare a Relapse Prevention Plan in which he would set out his own risks, how he might change behaviour and his understanding of his offence.  Ms. Tobin testified that “looking at it now, I am impressed”.  Mr. Caston writes in his plan that his risks are being around kids, parks, pools, or if left alone with a kid.  He writes that his red flags/danger signs are “thinking about kids all the time, looking at kids pants to see if they got a hard on, getting hard on over kids around me.”

[105]     Mr. Caston prepared a second Relapse Prevention Plan dated October 11, 2001 that is much more detailed.  He writes for a full page of his offence cycle (“it takes a little time to see if the couse [coast] is clear and then I get nevese [nervous] and my heart speeds up and then I have to find out if the boy will let me see his dink and if he does I go for it”), his thoughts at the time (“just glad to have a boy to masterbate [masturbate] at the time and hope no one finds out about it and hope I can do it for a long time and hope the boy will not tell on me”) and his fantasies (“we live in a world were [where] you can have sex with kids when ever you want”).  When he wrote about his emotional reactions during offending he wrote, “all the time I know I should not be doing it but I don’t care I’m getting what I want out of the boy sex!!!”

[106]     On October 24, 2001, Mr. Caston met with Ms. Tobin and discussed that his offence was 632 days ago.  “I could have had all day with him”.  “It could have been amazing”.  Ms. Tobin said that Mr. Caston ‘lit up’ as he discussed his offence.  He stated that 18 months old is his favourite age and that he masturbates daily to fantasies of boys aged 18 months to four years.

[107]     Through 2002, Mr. Caston did not take any group therapy, either because he was not interested or he was not accepted for the group.  In December he expressed that he did not want to take ‘sex reduction medication’.  In the summer of 2002, Vancouver Police picked Mr. Caston up at the Stanley Park water park after complaints from parents that he had been frequenting this area.  Small children were playing as close as ten feet from Mr. Caston.  On October 17, 2002, Mr. Caston admitted to Ms. Tobin that he had been attending the water slide regularly before he was picked up.

[108]     Near the end of her time in seeing Mr. Caston in 2003, Ms. Tobin asked him, “[w]hat’s changed in the last ten years in your risk level?”  Mr. Caston answered, “[n]ot much.”  He described three year old boys as “morsels”.  In the April 2003 pre-sentence report it is stated, “[w]hen queried for this report as to how he had been spending his time lately, Mr. Caston refused to answer.”  She concluded that his “response to probation supervision has not been particularly satisfactory. . .”

[109]     In late 2002, Mr. Caston was seeing a psychiatrist, Dr. Tomita.  On November 22, 2002, Dr. Tomita noted that Mr. Caston declined another appointment:  “not motivated to address/control pedophilia”.

[110]     In October 2002, Mr. Caston’s file was referred to Dr. Peter Johnson, a psychologist, to determine if Mr. Caston could attend group therapy.  It turned out that there was not funding for group therapy.  Mr. Caston did, however, take the personal hygiene steps including washing his clothes so that he could see Dr. Johnson.  Dr. Johnson’s evidence is contained in his notes of his meetings with Mr. Caston and in his testimony at this hearing.  Dr. Johnson testified that he would likely have recommended group therapy for Mr. Caston as the personalities of the group can be effective in calling each other out.  “They know the tricks of the trade” testified Dr. Johnson.  Instead Dr. Johnson saw Mr. Caston one on one in early 2003 for six appointments.  At those appointments Mr. Caston was eager to talk.  Dr. Johnson described Mr. Caston’s cognitive distortion as seeing young boys as sexual and as trying to flirt with adults:  “He is a very psychologically damaged man”.

[111]     Mr. Caston was incarcerated for a part of 2003 due to his public mischief conviction and reconnected with Dr. Johnson on his release.

[112]     In March 2004, Mr. Caston began to see Dr. Peter Johnson again.  Dr. Johnson saw Mr. Caston roughly bi-weekly for the next year.  Dr. Johnson continued to see Mr. Caston on what was for the doctor a pro bono basis and for Mr. Caston was a voluntary basis as of November 2004.  Dr. Johnson was uncertain in his testimony as to how long those meetings with Mr. Caston of more than a decade earlier continued but agreed that it may have been until he retired in December 2006.  This seems unlikely given the contemporaneous record contained in the Closing Summary of November 15, 2005 which specifically refers to Mr. Caston no longer seeing Dr. Johnson as of that date.  In any event, the brief Closing Summary concludes with the following:  “It would be hard to look at specific gains in terms of Mr. Caston’s progress, though he has stayed primarily out of offending.”

[113]     Regardless of the exact duration, Dr. Johnson was of the view that there was a strong rapport or therapeutic alliance between himself and Mr. Caston.  Mr. Caston’s perspective appears to be somewhat different.  He told Dr. Thomas in 2015 that he and Dr. Johnson were ‘chums touching base’ and that the deviant sexual interests were not targeted.

[114]     During the time of seeing Dr. Johnson, the clinical notes have repeated references to Mr. Caston’s cognitive distortions, i.e. that some children are quite seductive and some enjoy the abuse.  This was something that Dr. Johnson worked on with Mr. Caston.  Nevertheless, Dr. Johnson testified that he never got a sense that Mr. Caston developed any empathy for children nor that Mr. Caston moved from the belief that children enjoyed sexual relations with adults.  Dr. Johnson worked with Mr. Caston to remind him of his goal to stay out of jail.  Part of that work operated on the basis that if Mr. Caston masturbated to his fantasies of children, his urges were reduced.  As such this masturbatory practice, in Dr. Johnson’s view, was an alternative to him assaulting children.  This, of course, constituted a significant contrast with the evidence of Dr. Thomas and her advice to Mr. Caston in 2015.

[115]     In cross-examination, Dr. Johnson agreed that Mr. Caston seemed determined not to reoffend.  To Dr. Johnson, Mr. Caston’s attention to the number of days since his last offending was a way of focusing on not reoffending.

[116]     This period of time is most notable for the absence of any information as to the behaviour of Mr. Caston.  What is certain is that during this period of time there is no evidence of criminal behaviour on the part of Mr. Caston despite the absence of any supervision or treatment.

[117]     On June 2, 2013, L.D., a young boy of seven years of age and diagnosed with autism, went into the backyard of his home to play after dinner.  Unbeknownst to him, Mr. Caston was on the property and behind a garage.  Mr. Caston called L.D. over to him.  Moments later, L.D. told his mother about touching a penis.  It was never admitted by Mr. Caston then or during these proceedings that he touched L.D.  Due to the severity of his autism, a statement was not obtained from L.D.  Shortly after L.D. had gone into the backyard, his mother and then his father came outside.  L.D.’s father found Mr. Caston, who was known to him, crouched behind the garage.  The family had known Mr. Caston as a result of their monthly attendance at a clothing optional swim at Templeton Pool.  There would be, in addition to L.D., unclothed children at the monthly swims.

[118]     Mr. Caston was arrested.  On his arrest, Mr. Caston was found in possession of a pink dildo and nudist magazines which contained photographs of pre-pubescent children.

[119]     On August 2, 2013, Mr. Caston was granted bail on the criminal charges arising from the events of June 2.  The eight conditions on his recognizance included terms that he not attend places where children may congregate and that he was not to be alone in the presence of a child under the age of eighteen years.  A review of the logs of his bail supervision show that Mr. Caston reported as directed and engaged with the bail supervisor.

[120]     On the basis of the allegations as they relate to L.D., Mr. Caston entered into a two year s. 810.1 fear of offending against a child recognizance on February 26, 2015.  The twelve terms of that recognizance included terms that he have no contact with L.D.’s family, not to go to New Westminster, or to any place where children may be found.  Specifically he was not to attend at Templeton Pool.  He was to report at least every week to a probation officer.  A counselling condition was included.

[121]     I bear in mind that there was no admission by Mr. Caston on entering into that recognizance that he had touched L.D.  I also note that the recognizance, not being a criminal offence, ought not to be considered as part of any ‘pattern’ that will be discussed later in the ‘Designation as a Dangerous Offender’ section of these reasons.

[122]     During the term of this recognizance, Mr. Caston saw his probation officer, Rita Dhaliwal, and a treating psychologist, Dr. Thomas.  I will first summarize the evidence of Dr. Thomas.  Dr. Thomas was qualified to give expert evidence in forensic psychology, including diagnosis of mental health disorders, identification of the elements of an offender’s past sexual behaviour and risk factors, the assessment of risk and treatment interventions for sexual offenders to address and manage their risk while in custody and in the community.

[123]     As Dr. Thomas’ viva voce evidence covers an extended and very recent portion of Mr. Caston’s treatment, it will be summarized in considerable detail.

[124]     Dr. Thomas’ involvement with Mr. Caston began in May 2015 and continued until the offence of February 2016.  On May 29, 2015 she interviewed Mr. Caston.  Her purpose in doing so was to determine Mr. Caston’s ability to undergo treatment particularly whether he could benefit from a group sex offender treatment program.  She was not performing a risk assessment.  Prior to the interview, she had read his forensic records which went back to the 1980s.

[125]     In speaking with him, Dr. Thomas asked Mr. Caston about his offending behaviour.  When describing the sexual interference conviction from 2000, “his affect was bright as he described the incident, and he seemed to be reminiscing as he did so.”  She testified that it was as if it was a good memory.  Mr. Caston later reported fantasizing about this victim “chuckling as he shared this”.

[126]     Dr. Thomas attempted to determine if Mr. Caston could benefit from group therapy.  Mr. Caston had expressed his desire to attend sex offender programming.  As a result of his learning difficulties and his slowness in reading and writing, however, she concluded that he was not suitable for group therapy.  In evaluating what treatment was to have a greater chance of managing Mr. Caston, Dr. Thomas looked to what motivated him.  Specifically, she looked to whether he was morally (i.e. it causes harm to others) or socially (i.e. it is not socially acceptable, which is society’s problem) conflicted about his behaviour.  His statement, “I like kids... I’d have a harem of boys if I could… I wish I was born at a different time, like ancient Rome” therefore illustrated that Mr. Caston was socially conflicted.  She saw no evidence that he was morally conflicted.  The importance of this to her was that those who are socially conflicted tend to have a higher risk of recidivism.  Also on the issue of motivation, Dr. Thomas attempted to determine what would motivate Mr. Caston not to reoffend.  Were his motivations externally (i.e. he did not want to go to jail or be deemed a dangerous offender) or were they internally (i.e. I don’t want to do this to anyone) motivated?  In an ideal situation both motivations would be present.  She concluded that his motivation was almost exclusively externally motivated.  The significance of that conclusion is that once external motivators do not exist, the behaviour comes back.

[127]     Dr. Thomas also discussed with Mr. Caston his use of fantasies of young boys to which he masturbates.  She testified that there is a strong correlation between that practice and the behaviour a person exhibits.  That correlation had not always been appreciated, as it was thought that relying on fantasies could act as a release of sexual energy and reduce the risk of offending.  In current thinking, however, fantasies are considered a pathway to offending and have been so considered for the last approximately ten years.  As was summarized earlier, Dr. Johnson testified to not discouraging Mr. Caston more than ten years ago from using fantasies of boys in the context of his treatment of Mr. Caston.

[128]     Dr. Thomas took from the materials before her that Mr. Caston’s pedophilia was chronic and severe.  She concluded that his interest in boys is entrenched making it more difficult to change.

[129]     She also conducted psychological testing.  That testing sought to measure his static (i.e. unlikely to change over time) and dynamic (i.e. capable of change over time) risk factors.  For the static risk factors, Dr. Thomas administered the STATIC-99-R and for the dynamic risk factors she administered the STABLE-2007.  However, Dr. Thomas pointed out that her report of May 2015 was not a risk assessment but only to determine Mr. Caston’s suitability for group sex offender treatment.  Nevertheless, the result for the STATIC-99-R was a high risk and for the STABLE-2007 his risk was, again, high.  The combined result of the two tests was that Mr. Caston was considered a very high risk of re-offence.

[130]     Dr. Thomas was of the view that medication would be helpful to him and that there were psychological strategies that could be applied to help him manage his interest and reduce his risk of re-offence.  As a result, a three-pronged approach was adopted for Mr. Caston:  first, he would be prescribed medication by Dr. Wang; second, she would provide him with cognitive behavioural therapy; and, third, he would be supervised by his probation officer Ms. Dhaliwal.

[131]     For her part, Dr. Thomas was of the view that she had developed some rapport with Mr. Caston.  In her opinion, and based on research, it is established that rapport is the most powerful predictor of outcome.

[132]     It should be noted that there was to be a referral of Mr. Caston to Dr. Lopes in Surrey for one on one counselling as Dr. Lopes has expertise in dealing with lower functioning sexual offenders.  However, Mr. Caston’s s. 810.1 recognizance prohibited from him going to New Westminster and, accordingly, his counselling was done by Dr. Thomas who does not have a specialty in working with low functioning offenders.  His probation officer, Rita Dhaliwal, testified that she could not remember if consideration was given to changing the recognizance to permit Mr. Caston to attend to Dr. Lopes.

[133]     With that approach in place, Dr. Thomas embarked on 13 sessions with Mr. Caston over approximately nine months commencing in July 2015.  It is not necessary to summarize each of those sessions although certain themes do stand out on review of Dr. Thomas’ notes.  First is Mr. Caston’s openness in talking about his offending and his preference for very young children.  His discussion of his offending was done with great enjoyment, “like someone recounting war stories”.  Second is the existence of “entrenched cognitive distortions”, namely Mr. Caston’s view that children were interested in him and were open to sexual activity.  Third is an obsessional component to his sexual preoccupation with children evidenced by his daily masturbation and his obsessive fantasies about young children during ejaculation.  Finally, the sessions do show some effort by Mr. Caston to cooperate in his treatment by taking medication and adopting behavioural skills that were discussed including actively staying away from children.  However, Dr. Thomas noted that it was rare that Mr. Caston would apply the suggestions to his behaviour.

[134]     The sessions, however, were occurring less frequently into the winter months changing from weekly to monthly meetings.  A considerable amount of time was spent on Mr. Caston creating a self-management plan to assist him in staying out of trouble.

[135]     During his sessions, Mr. Caston indicated to Dr. Thomas a willingness to start on anti-androgen medication, such as CPA again.  As a result, Dr. Thomas referred Mr. Caston to Dr. Wang, a psychiatrist with expertise in the use of drugs to manage sex offenders.

[136]     That referral resulted in an initial consultation on July 31, 2015.  Dr. Wang testified that at that consultation, Mr. Caston was adamant that he was not going to take anti-androgen medication.  He gave as a reason, the side effects he experienced in the 1980s.

[137]     Mr. Caston told Dr. Wang that he was masturbating daily to thoughts of pre-pubescent males, including the victim of his 2000 offence, N.T.W.  To Dr. Wang, this indicated that Mr. Caston did not feel badly for his past offence.  He opined that feeling bad regarding offending behaviour may operate as a deterrent and accordingly would reduce the risk of re-offence.  Mr. Caston did not feel bad about his prior offence.

[138]     Also, Dr. Wang concluded that “Jim’s judgment is rated as chronically impulsive and his insight as limited”.  The significance of this conclusion to Dr. Wang is that a person with less impulse control is more likely to re-offend.  As to limited insight, Dr. Wang’s opinion was that Mr. Caston does not have a full appreciation of the harm of sexual offending.  This too increases the risk of re-offence.  In assessing risk for Mr. Caston, Dr. Wang identified seven factors:  past history of sexual offences (“the best predictor of future behaviour”); chronic deviant sexual arousal (“a very important risk factor”); anti-social personality (“a well-established risk factor in the literature”); negative attitudes; lack of remorse; attitudes condoning sexual offending (“also well established in the literature on re-offending”); and impulsivity.

[139]     Dr. Wang, along with Dr. Murdoch in 1979, Dr. Posthuma in 1984 and Dr. Levy in 1992, became the fourth treatment professional to note Mr. Caston’s anti-social personality traits.  Dr. Wang felt, as did Dr. Levy, that anti-social traits cannot be treated.  To be clear, I fully accept the opinions of these three psychiatrists and one psychologist as to the anti-social personality traits of Mr. Caston.

[140]     Given his expertise, Mr. Caston’s history of use of anti-androgen medications was reviewed with Dr. Wang.  He testified that the 300 mg dosage given to Mr. Caston was approaching the highest dosage that he would prescribe.

[141]     Mr. Caston did agree to take medication for his depression and anxiety and that medication, Dr. Wang testified, would have some impact in reducing his sex drive.

[142]     I would pause at this point to note that, I have listened to a great deal of evidence regarding the use of medications (SSRIs) to manage Mr. Caston, other than CPA and Lupron (which will be discussed below).  Peer reviewed research has been entered as an exhibit and has been commented on by several witnesses.  Dr. Wang particularly was of the view that these medications were of assistance to the management of sex offenders.  I note, however, that they were not the first choice of Dr. Wang and appear not to have been a pillar of any management plan for Mr. Caston.  I have concluded that, in the particular circumstances of Mr. Caston’s management, these SSRI medications play such a minor role that they do not merit any lengthy consideration.  Accordingly, I do not intend to explore the evidence on these medications any further.

[143]     Dr. Wang concluded by stating his formulation of what is happening with Mr. Caston under the heading “Impression”:

[144]     The treatability concern identified by Dr. Wang was whether there would be a good therapeutic relationship or rapport.  His concern arose from inappropriate comments Mr. Caston made during the consultation and his odd demeanour when he was asked about the gaps in his criminal record:  did he not offend or did he just not get caught?  Mr. Caston’s back and forth on whether he would take medication was a factor as well.

[145]     Dr. Wang next saw Mr. Caston on August 28.  He took his medication for two weeks and then stopped because it led to difficulties with masturbation.  “He is now masturbating once daily, exclusively to thoughts of children”.  After much discussion, Mr. Caston agreed to go back on the medication.

[146]     Mr. Caston was next seen at the Forensic Clinic on October 2, 2015, after missing a September appointment.  At that time his file was closed as “client declined to continue with psychiatric recommendation for treatment with medication.”  His level of engagement was described as “poor”.

[147]     In cross-examination, Dr. Wang was asked about what he had noted in his file review, namely, the gaps in offences in Mr. Caston’s criminal record.  He agreed with the suggestion that it seems the person was able to behave themselves and that there may be something in that experience that could be used to prevent offending in the future.  To the suggestion that the gaps may mean that there may be treatments in the community that may assist, he replied, “all things being equal that could be true.”

[148]     Returning to Mr. Caston’s ongoing treatment by Dr. Thomas, there was a session on January 13, 2016 in which Mr. Caston stated he was feeling low and recounted his problems with drinking, conflicts with his neighbours, and the difficulty of the holiday season given how many children were out.  Mr. Caston made no mention at that session of the time he was spending at the library:  30 times over the two months prior to February 10.  This was to be the last session that Dr. Thomas had with Mr. Caston given the events of February 10, 2016.

[149]     Dr. Thomas wrote a Discharge Note dated March 10, 2016 in which she concluded that Mr. Caston would be best managed by very assertive supervision and monitoring, possibly coupled with medication management.  She also opined that further psychological intervention was unlikely to be of any assistance in managing his level of risk.  In testifying about the discharge report, Dr. Thomas stated that she felt further psychological intervention by her was a door that was closed.  She did, however, concede that such intervention may be possible with other doctors.

[150]     The self-management plan prepared by Mr. Caston, and just referred to, was a significant part of the evidence and submissions made.  Its importance is based, at least in part, on the recognition that Mr. Caston’s diagnosis of pedophilia is not susceptible to cure but to management of his acting out on that sexual identity.  Accordingly, it is worthwhile to review how Mr. Caston set out his own management of his behaviour.

[151]     In the self-management plan, Mr. Caston sets out his triggers (i.e. seeing young boys on the street) and how he would cope with them, such as avoiding access to children and staying inside during summertime.  He would also avoid places where he knows children to be and would avoid employment, such as at a daycare, school or library.  He described his ‘thinking errors’ as he was not hurting the children, that he was pleasuring them, and the children were too young to remember his offending behaviour.  With regard to these errors he wrote “I still believe this to be true.  I would still go for it.”  He wrote that he would try not to fantasize about children.  In answering the question “[w]hat could you do to obtain help if your risk to offend increased?” he responded, “I sought out help in the past, voluntarily, and still re-offended within weeks of completing.”  He is asked his short and long-term goals and then what barriers there are to him achieving those goals.  He wrote, “[k]ids (access to a kid).  Sexually offending and mom finding out.  I would likely still offend if the opportunity presented itself.”

[152]     Rita Dhaliwal testified that in addition to her training as a probation officer, she had received sexual offender training in 2014.  She was the primary probation officer for Mr. Caston as of February 26, 2015 when he entered into his s. 810.1 order and would remain so until his offence of February 10, 2016.

[153]     She testified that at the commencement of her supervision, she prepared a Sexual Offender Needs Assessment Rating (SONAR).  That rating includes a compilation of other assessments.  In Mr. Caston’s case that meant three tests, two of which rated his risk of re-offence as high and one as moderate.  As a result, the overall rating of Mr. Caston’s risk was high.  The SONAR rating determines the Case Management Plan.

[154]     The Case Management Plan for Mr. Caston is a document containing a thorough analysis of the issues to be addressed by Ms. Dhaliwal.  Some of those issues involve referrals to outside agencies.  Also included in the Plan was monitoring of Mr. Caston’s movements by ISPOT, a police surveillance unit.  For her part, Ms. Dhaliwal had Mr. Caston report on a weekly basis, at which time she would use her training to manage Mr. Caston’s risk of reoffending.  When the entire Case Management Plan is reviewed, it is difficult to imagine that there was anything more that could be done to assist and supervise Mr. Caston.

[155]     Ms. Dhaliwal saw Mr. Caston on a weekly basis and, on the basis of reading her logs, it is clear that she was very active in seeing that the Case Management Plan was followed.  To his credit, Mr. Caston consented to Ms. Dhaliwal speaking with other agencies and sharing information that would otherwise be inaccessible.

[156]     Mr. Caston expressed a motivation to attend programming.  With regard to medication, he changed his position.  On April 27, 2015 he met with Ms. Dhaliwal and advised that he would not see Dr. Wang as he was not planning on taking any medication.  By July 20, he changed his mind about medications and stated that he would meet with Dr. Wang for that purpose.  (It will be remembered that the resulting consultation with Dr. Wang was 11 days later on July 31, at which time Mr. Caston refused anti-androgen medication.)  On October 5, he reports that he has stopped taking medications as of one month ago.

[157]     Mr. Caston was introduced to COSA (Circle of Support and Accountability), a group of volunteers who meet with persons with a sexual offending history.  He started meeting with them one time per week in September for a three month period.

[158]     Although reluctant at first, he agreed to attend substance abuse management (SAM).  He was referred to the program in November 2015.  He successfully participated until the occasion that he arrived intoxicated at a session in January 2016.  He continued to attend the substance abuse meetings, although a review of the records contained in Exhibit 1 reveal that there are notes of him being disruptive at those meetings.

[159]     Of significance is his meeting on February 9 with Ms. Dhaliwal, the day before the predicate offence at the library.  The log notes state that ‘James states he is compliant with his order.  He is aware of his final SAM meeting which he plans to attend.  He does not have a meeting with COSA this week but knows of his appointment with Dr. Thomas on Wednesday and he will be there’.  It should be remembered that by this point, his meetings with Dr. Thomas had switched to once per month.

[160]     Ms. Dhaliwal testified that Mr. Caston did not, to her recollection, tell her that he had attended the library 30 times over the last two months or that he was accessing children.  Reference has already been made to Dr. Thomas’ evidence that Mr. Caston also did not disclose his attendances at the library to her.

[161]     The history of Mr. Caston’s supervision and treatment changes as of February 10, 2016 as he is, from that time on, in custody at the North Fraser Pretrial Centre.  Dr. Emeline Murphy, the consulting psychiatrist at the North Fraser Pretrial Centre, testified to her dealings with Mr. Caston while he has been on remand.  Her first dealings with him were in April 2016, and she continued to see him intermittently until February 19, 2017.  His original blood work from April 2016 listed his testosterone level as 9.7, i.e. within the normal range of 8.4 to 28.7.

[162]     At first, Mr. Caston was taking medication for his depression and anxiety which had an expected side effect of reducing his sex drive.  Indeed in his April and May consultations with Dr. Murphy, he reported that side effect.  In August 2016 he agreed to and was administered CPA and by the end of the month the dosage was raised.  In her consultation with him on September 4, Mr. Caston told Dr. Murphy that he has had no erections since the dosage was raised.  He also stated his belief that the dangerous offender question will not be raised now that he was accepting treatment.  He stated that he will switch to receiving injections of CPA when he gets out.

[163]     On September 11, 2016, Dr. Murphy noted that his testosterone level was 1.2.  Dr. Riar was to later describe this level as at ‘near castration level’.  She would expect that his testosterone level would remain at that level into February 2017 if he continued taking the medication.  In cross-examination, she testified that the level may go down as he ages although it may go up if he stops taking his medications.  She gave her opinion that the lowering of testosterone does not completely remove sexual interest and it does not change the target of a sexual interest.

[164]     In December 2016, his dosage of CPA was raised from 100 mg to 125 mg.  She next saw him in early February 2017, as a result of reports of Mr. Caston repeatedly hitting his head on a wall.  She was not aware of Mr. Caston’s sexually assaultive behaviour of February 5.  He was refusing medications at that time.  She saw him for the last time on February 19 by which time he was much improved.  He was taking his medications again.

[165]     Also testifying as to this period of time were two employees of North Fraser Pretrial Centre, Mr. Atkinson, Assistant Deputy Warden, and Correctional Officer Anderson.

[166]     Mr. Atkinson testified to the logs which are kept of the inmates’ behaviour.  In addition to the details of daily behaviour, the logs show that Mr. Caston has always been on separate confinement while in pre-trial custody and the majority of that has been voluntary.  These logs were to become an important part of the information relied on by the court ordered assessor, Dr. Riar.

[167]     From those logs, Mr. Atkinson referred to sexually inappropriate advances noted in November 2016.  He also noted an allegation of sexual assault against Mr. Caston from February 5, 2017.  On that date a correctional officer observed Mr. Caston take his hand and grab an inmate’s buttock and try to go further down into his groin area from behind.  The correctional officer heard the inmate say, “no, no, no don’t touch me” and try and push away Mr. Caston.  Shortly thereafter, Mr. Caston was seen to be hitting his head against a wall and would not stop on direction.

[168]     I am satisfied that this act of February 5, 2017 is proven beyond a reasonable doubt, even though it is contained solely in the institutional log.  First it is a record made at the time by a correctional officer who is under a duty to accurately create log entries.  In this case, it is a record made of events specifically witnessed by the correctional officer.  The observations are detailed and clear.  Bearing in mind that there are few of the dangers associated with hearsay evidence, I find it to be credible and trustworthy.  As I say, I find those facts to be proven beyond a reasonable doubt.

[169]     Then on September 14, 2017 there was a further sexual allegation against Mr. Caston.  That allegation will be dealt with in the context of Mr. Anderson’s evidence.

[170]     Mr. Atkinson testified to a log entry for September 18, 2017.  On September 18, Mr. Caston stated that he wished to remain in separate confinement as he would not be able to control his sexual urges.  He also admitted that he had been performing sexual acts on other inmates.  Is that evidence which I can take to be proven beyond a reasonable doubt?  It is made difficult by the lack of clarity as to who made the log entry and whether that person was the one to whom the admission had been made.  I have concluded that that difficulty does not deprive the statement of its evidentiary value.  It is not a situation in which the credibility of the person entering the note in the log can be seriously in issue.  I repeat the inferred duty to provide accurate entries.  The admission made is the kind of evidence which is frequently considered to not have hearsay dangers:  it is an admission against interest.  It does not seem to have been made under any circumstances of compulsion which would rob it of its weight.  In all the circumstances, I am satisfied beyond a reasonable doubt of Mr. Caston’s admission that he performed sexual acts on other inmates.

[171]     In cross-examination, Mr. Atkinson agreed that, with few exceptions, Mr. Caston was polite and cooperative with staff and had built up some rapport with the mental health liaison.

[172]     Mr. Anderson testified to the events of September 14, 2017.  These events were contested by the defence.  For me to rely on them, this occurrence must be proven beyond a reasonable doubt.  In brief, Mr. Anderson testified that he observed inmates gathered outside the door of Mr. Caston’s cell.  They were peering in the window.  Mr. Anderson went to Mr. Caston’s door and observed Mr. Caston and an inmate named M. in the cell.  It is contrary to the rules of the institution that an inmate be in another inmate’s cell.  Mr. Anderson told Mr. M. to leave the cell and when asked what had happened, Mr. M. “was not forthcoming.”  Mr. Anderson then set up an interview room to interview the inmates.  He did so and received their statements.  In various ways, the statements supported the conclusion that Mr. Caston had performed oral sex on Mr. M.

[173]     The defence submitted that the hearsay statements of the inmates ought not be used to conclude that Mr. Caston performed oral sex on Mr. M.  The Crown submitted that I should be so satisfied.  I have concluded that I am not satisfied that the act has been proven.  I simply do not have enough circumstances which can satisfy me as to what happened.  The inmates may well have reason to not be truthful in what they said to Mr. Anderson.  The amount of time which passed before they gave statements may have given them an opportunity to concoct a false allegation.  What was said to Mr. Anderson was not reduced to a statement nor did the inmates review what had been written to ensure it was properly recorded.  The timing of events as developed in cross-examination weakened the likelihood of what the inmates said happened.  The hearsay evidence which I have heard on this topic, I have concluded, is entitled to no weight.

[174]     However, I would note that it does not appear that Dr. Riar relied on the September 14 event in coming to his opinion.

[175]     Mr. Anderson did go on to testify that he would be on a graveyard shift on Mr. Caston’s unit four times per month.  He testified that at 6 a.m., shortly before he got off shift, on nearly every shift, he would see Mr. Caston staring at him masturbating.

[176]     Mr. Caston has, between the approximate ages of 18 to 54, been supervised and offered treatment for almost twenty of those thirty-six years.  That treatment has included psychotherapy of many types from a wide variety of professionals.  He has been seen, at the very least, by five psychiatrists, seven psychologists, and a host of counsellors, psychiatric social workers, probation officers and volunteers.  It has included medications of many kinds.  There has been supervision often provided by professionals specifically trained to work with people such as Mr. Caston.  Many of these people have worked with him for extended periods, thus creating all the advantages of continuity of their attention.  From the earliest times, that treatment and supervision has been described as the “best available” and has even been provided on a pro bono basis.  A reading of the voluminous notes made and seeing the witnesses testify, leaves an overwhelming sense of highly skilled people doing their very best to provide all that they could for Mr. Caston.  The analysis of the value of that effort will await the penalty stage portion of these reasons.

[177]     As of February 10, 2016, the date of the predicate offence, Mr. Caston was reporting weekly to a probation officer, was seeing Dr. Thomas, and was being assisted by the COSA community group, which helps sex offenders function in the community.  He was not receiving medication from Dr. Wang as he had expressed his unwillingness to do so.  He was about to attend his last substance abuse management meeting after recently attending intoxicated and having been disruptive.

[178]     Since February 10, 2016, Mr. Caston has been incarcerated.  During that time he has, at times, taken medications that have reduced his testosterone level to a ‘near castration level’.  Yet he has still acted inappropriately sexually in a setting where the monitoring and supervision could not be at a higher level.

[179]     The Crown seeks the designation of Mr. Caston as a dangerous offender under sections 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b).  The wording of the Criminal Code is disjunctive so that the Crown would succeed in their submission for the dangerous offender designation if any of those three routes were proven.  Of course the Crown is required to prove each element of the routes to the designation beyond a reasonable doubt.

[180]     As I have said, the defence opposes the Crown and urges that, in interpreting the sections relied on by the Crown, I bear in mind that those sections are designed for that very small percentage of offenders who exhibit a high likelihood of serious re-offence and whose behaviour is intractable.  I accept what the defence submits in this regard, particularly as it is consistent with general sentencing principles of proportionality.

[181]     It is now necessary to analyze whether the Crown has discharged the onus on it with respect to any of those three routes to the dangerous offender designation.  To do so requires, first of all, a summary of the evidence provided by the court ordered assessment.

[182]     Pursuant to s. 752.1 of the Criminal Code, I made an order that there be an assessment performed by an expert.  That assessment was conducted by Dr. Kulwant Riar, a psychiatrist.  Dr. Riar is a member of the medical staff at Vancouver General Hospital and a clinical professor at the University of British Columbia.  He was qualified to give opinion evidence in forensic psychiatry including:  diagnosis of mental health disorders; identification of the elements of an offender’s past sexual behaviour and risk factors; approaches to the assessment of risk; treatment interventions for sexual offenders to address and manage their risk while in custody and in the community; and the use of anti-libidinal and anti-depressants in the treatment of sex offenders.

[183]     In these circumstances, Dr. Riar’s opinion provides the most current insight into Mr. Caston.

[184]     Dr. Riar’s assessment report is dated October 13, 2018.  He also testified at this hearing.  At the time of preparing his report, he had available to him the six binders that constitute Exhibit 1 in this trial, however, his binders did not have all the updated information that the court exhibit contains.  He did not have Exhibit 2, the Agreed Statement of Facts; Exhibit 3, the facts surrounding the prior convictions and some of the updated institutional records.  His materials were approximately 3,000 pages in length.  In reviewing the materials, he testified that he concentrated on the criminal convictions, the reports of the psychologists and psychiatrists and the probation officers.  He testified that the jail logs were very important as they record behaviour without interpretation.  Given my review of what Dr. Riar did not have in front of him and the lack of cross-examination on those materials, I am satisfied that the weight to be given to Dr. Riar’s opinions is not impacted by the more limited materials before him.

[185]     In his report he states that his opinion will mainly concentrate on addressing the issue of Mr. Caston’s psychopathology treatment needs and future risk.  Mr. Caston refused to be interviewed by Dr. Riar.  Nevertheless, Dr. Riar had before him reports from Mr. Caston’s early youth to 2016.  The information had, in Dr. Riar’s view, ‘much consistency’ such that it provided greater certainty as to what was going on with Mr. Caston.  Other than not knowing what was happening with Mr. Caston when he was not in trouble with the law, he was satisfied with the completeness of the information.  He did not have any doubt about the patterns of behaviour he saw in the materials.

[186]     After summarizing Mr. Caston’s lengthy history of treatment and interventions, Dr. Riar’s report states that Mr. Caston has a pedophilia disorder, exclusively homosexual type.  He then goes on to the issue of risk of offending and his opinion is worth quoting at length:

[187]     Dr. Riar then goes on to discuss, in a general way, treatment options for a person such as Mr. Caston.  He states that there has to be a comprehensive approach where pharmacological agents, psychological interventions and close supervision in the community is needed.  During cross-examination, Dr. Riar agreed that with this approach in place, Mr. Caston could be managed in the community.  However, he was equally clear in his opinion that if Mr. Caston fails in any one of the three areas, then he will likely re-offend.

[188]     He was asked at the hearing as to what psychological interventions he envisaged and he referred to the availability of psychologists in federal institutions to deliver programming.  He was not aware of the current use of facilitators rather than psychologists.  With regard to what he meant by “close supervision” he meant a hands-on situation where a supervisor is always with the person.  ‘Even in the washroom’ he said.  What he had in mind was the kind of supervision that is provided on occasion to young offenders where their supervisor is always with them when they are in the community.

[189]     He then added a caveat to the three-pronged approach he has just detailed when he said, “In order to benefit from the afore-mentioned treatments, it is paramount that the individual should have insight, motivation and interest to engage in treatment and benefit from it.”

[190]     On the topic of insight, Dr. Riar was asked about the relapse prevention plans that Mr. Caston had prepared in the past.  It will be remembered that Wendy Tobin testified that she was impressed with what Mr. Caston had written in 2001.  Dr. Riar testified that Mr. Caston is saying ‘what we want to see.  But is he assimilating?  I don’t think so’.  Dr. Riar was referred in cross-examination to Mr. Caston’s expression of willingness to take medication to reduce his pedophilic thoughts.  Dr. Riar agreed that that showed ‘some insight’.  He was referred to other statements of Mr. Caston saying he wanted help as evidence of Mr. Caston’s insight.  Dr. Riar responded that that could be so or it could be Mr. Caston deflecting.

[191]     Dr. Riar then concluded on the treatment prospects for Mr. Caston:

[192]     Dr. Riar continued in his report:

[193]     In his evidence, Dr. Riar expanded on the difficulties in managing Mr. Caston.  He testified that Mr. Caston lacked the internal controls over his own behaviour.  He testified that he exhibits behaviours in addition to his sexual deviancy, such as lack of insight, manipulation and deceitful behaviour.  For Mr. Caston, these behaviours are ingrained as he has been thinking of how to manipulate since he was young and has not been called on that behaviour.  Dr. Riar did acknowledge in cross-examination that Mr. Caston’s two gaps in offending did show some ability to control his behaviours.  However, his return to offending showed the entrenchment of those behaviours.  He also testified that gaps in offending are seen in sex offending as it tends to occur in cycles.  Therefore, he was unable to say that the gaps showed some benefit from treatment or a ‘natural evolution of the problem’.

[194]     While acknowledging that a diagnosis of personality disorder is no longer given for a person under 18 years of age, Dr. Riar testified that Dr. Murdoch’s diagnosis of Mr. Caston with a personality disorder in his teens shows how serious his problems were.  The description of those problems has remained the same over the years.

[195]     Dr. Riar testified that it is very hard to treat a person when you cannot rely on what they are saying:  “it is more a game for them”.  Rapport with a therapist must include honesty and that is lacking for persons with anti-social personality traits, such that exist with Mr. Caston.  His manipulation is a character trait so it is hard to treat.  Later in his evidence, he was asked about the value of psychotherapy to Mr. Caston.  Dr. Riar responded that its assistance can be discussed at length but without motivation it is all a moot point.  And Mr. Caston, concludes Dr. Riar, does not have that motivation.  However, he conceded on cross-examination that Mr. Caston going to forensics voluntarily in 1994 to1995 was some evidence and showed some honesty in recognizing the need for treatment.

[196]     However, using a more recent example of Mr. Caston’s interaction with Dr. Thomas, as an example, Dr. Riar noted that with all the supports around him, he has not opened up to treatment.  When it was pointed out that Mr. Caston had expressed to Dr. Thomas the willingness to go to sex offender programming, Dr. Riar acknowledged that that was positive but asked ‘why now?’  In response to Mr. Caston’s expression of surprise to Dr. Thomas at the psychological counselling available, Dr. Riar testified that Mr. Caston should not be surprised.  Having attended for this counselling before, he ‘should know better than to be surprised’.

[197]     Similarly, Mr. Caston has stated that CPA lowered his sexual interest, but for Dr. Riar, ‘can you believe what he says?’  It will be remembered that other evidence referred to Mr. Caston’s inconsistent narratives of the impact of treatments on him.

[198]     As to the use of medication to treat Mr. Caston, Dr. Riar noted that the offence which occurred in 1987 while he was on 300 mg of CPA weekly signalled that the drug was not working for him.  Similarly, Mr. Caston’s sexual actions toward another inmate on February 5, 2017 signalled that the SSRI (anti-depressant and anxiety) medication and the CPA that he was on at the time was not working.  Nevertheless, he testified that there was room to use anti-androgen medication effectively and beneficially.  Dr. Riar testified that he prefers to prescribe Lupron which operates differently than CPA.  Of concern is Mr. Caston’s complaints of side effects to medications, for example, that it made him tired.  Dr. Riar testified that people generally manage side effects so that complaints of side effects can simply be looking for an excuse not to use the medication.  For Mr. Caston, in Dr. Riar’s opinion, “it comes back to, he is not serious in taking medications.”

[199]     The supports, in addition to medication, he had in 2016 (i.e. probation officer Dhaliwal, the psychologist Dr. Thomas, substance abuse management and COSA) were not enough to stop him offending.  In Dr. Riar’s opinion that fact shows that the problem is entrenched.  On the other hand, Dr. Riar testified that there is always hope.  When asked if there was a reasonable expectation that Mr.Caston could be managed in the community, he answered yes, if Mr. Caston accepts medical treatment and is honest in his therapeutic relationships.

[200]     Dr. Riar did emphasize, however, that Mr. Caston was a matter of management not treatment.  For example, Dr. Riar expressed the opinion that Mr. Caston does not have the ability to experience remorse and that he does not have empathy for others:  “Even those close around him, he doesn’t care.”  Those are issues of management not treatment according to Dr. Riar.  I pause to note that Dr. Riar’s opinion on this point was the same as several of the experts who had previously testified.

[201]     Dr. Riar was asked if Mr. Caston’s age (53 at the time of the predicate offence and 57 as of February 16, 2019) meant a reduction in his offending behaviour, i.e. the so-called ‘burn out’ effect.  He stated quite clearly that that does not apply to Mr. Caston.  Violent offending may result in a lowering of offending as one loses physical strength.  With deviant arousal, that arousal will continue.  For Mr. Caston he may not get aroused as often but when he does it will be to boys.

[202]     It is worthwhile, at this stage, to make findings with respect to Dr. Riar’s evidence.  Dr. Riar showed a thorough knowledge and grasp of the voluminous material regarding Mr. Caston.  I appreciate that he did not have the opportunity to interview Mr. Caston.  Given the volume of materials and the extent to which they describe a consistent narrative, I accept Dr. Riar’s evidence that he is able to provide his opinions with respect to Mr. Caston.  I do not find that the weight to be given to those opinions suffers at all as a result of the inability to interview Mr. Caston.  Nor do I attribute less weight to his evidence because he relied on the institutional logs, admittedly created for the purposes of the jail.  I have read those logs and I agree with Dr. Riar’s description of them as describing behaviour without interpretation.  They are a witness’ observations often clearly expressed.  I can easily see why Dr. Riar relied on them.

[203]     I also noted that Dr. Riar was extremely fair in his evidence regarding Mr. Caston.  He readily acknowledged those pieces of evidence which favoured Mr. Caston and the inferences which were possible from that evidence.  He was in no way an advocate.  For these reasons, I have no hesitation in accepting Dr. Riar’s evidence and I do accept it.

[204]     There still remains, however, the weight to be given to Dr. Riar’s opinions.  This is clear from the summary of his evidence.  In particular, the defence submitted that some of the opinions offered by Dr. Riar ought not to be given the weight necessary to satisfy me on specific factual issues.  For example, the defence submitted that Dr. Riar’s pessimism about Mr. Caston’s chances of responding to treatment and benefitting from it was unwarranted.  Additionally, the defence questioned what inferences I ought to draw from Dr. Riar’s opinions, even if I did accept them.  In short, the acceptance of Dr. Riar’s evidence requires further analysis of that evidence.

[205]     I will consider each of the three sections of the Criminal Code relied on by the Crown in turn.  It will become clear quite quickly that the analysis of the evidence as to designation (and for that matter as to penalty as well) involves an unavoidable amount of repetition.  However, I do not intend to include repetition at every stage, relying instead on the obvious inference that I have kept in mind the totality of the circumstances throughout the analysis of the evidence in these reasons.

[206]     Section 753(1)(b) of the Criminal Code provides:

[207]     In short, “[t]he offender must be shown to have failed in the past ‘to control his or her sexual impulses’ and, in the future, that there is a ‘likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.” (paragraph 38 of R. v. Boutilier, 2017 SCC 64)

[208]     I intend to review the evidence and submissions that I have heard with respect to each of the elements of subsection (b) to determine whether they have been proven beyond a reasonable doubt.  Although here, and in later sections, I have separated out individual items of the evidence, I have ensured that I have kept in mind the context and the totality of that evidence before coming to any conclusion.

[209]     The precondition of a “serious personal injury offence” applies to all three routes to a dangerous offender designation, albeit using different sections of the definition.  Irrespective of the definition used, the finding of a serious personal injury offence was not contested by the defence.  I find that the “serious personal injury offence” as defined for each of the three routes to the dangerous offender designation has been proven.

[210]     Consideration of this element requires review of the evidence heard of Mr. Caston’s conduct in “any sexual matter” showing a failure to control his or her sexual impulses.  The use of the words “has shown” necessitates a look to the past.  With respect to those past events, I am to look for “a failure to control”.  The sexual matters to be considered for Mr. Caston are the four sexual offences of 1985, 1987, 2000 and 2016.

[211]     It is not possible to realistically determine whether there has been a “failure” to control an “impulse” at the time of the four offences without briefly summarizing the context in which Mr. Caston’s impulses arise.

[212]     As early as his time in Riverview Hospital, Mr. Caston was diagnosed with pedophilia.  Some question was raised with respect to that diagnosis by the 1984 report of Dr. Posthuma. It will be remembered that he did not have the Riverview records before him at the time.  However, shortly thereafter, starting with Dr. Kerr (“strong homosexual pedophilic drive”), followed by Dr. Levy and consistently from that time on, Mr. Caston has been so diagnosed.  Bearing in mind, as Dr. Levy testified, that pedophilia is a life-long condition for which there is no cure, only management, it is clear that Mr. Caston’s pedophilia was operative at the time of the offences.  I accept that his condition creates “impulses”.  If there were any doubt on that topic (and I have none), it is removed by the descriptions of his pedophilia as ‘severe’ (Dr. Thomas) and ‘entrenched’ (Dr. Riar).

[213]     With that context in mind, I find that it is proven beyond a reasonable doubt that the four offences show his failure to control his pedophilic impulses.  A review of the circumstances makes this clear.  In 1984, he confessed that he had been watching the three and a half year old boy for months.  I draw the inference that he lured the boy into his yard with the offer of cherries with the plan in mind that he was going to molest the boy.  He did molest the boy.  He failed to control his impulses from the beginning of his interaction and during the three occasions that he fondled the boy.  In 1987, at the home of a friend, he touched a five year old boy three of the four mornings he was in the home.  The impulses were such that he failed to control them each and every morning.  This is despite the fact that he had spent five months in jail two and a half years earlier and was on a strictly supervised probation order at the time.  Just weeks before he had been warned on two separate occasions to stay away from the boy.  In 2000, Mr. Caston was left alone with a four year old boy.  I conclude that Mr. Caston locked the door to lower the prospect of his detection at the molestation he planned to carry out.  Acting within a fourteen minute window of opportunity, he failed to control his impulses.  Again, this was at a time that he was on a probation order which was rigorously applied and monitored.  In 2016, Mr. Caston waited outside a washroom at the Vancouver library for three or four days with a plan for his actions.  When the five year old boy went into the washroom, Mr. Caston followed him with the intent to carry out his plan and follow his impulses.  He fondled T.G.  He told the police that if the boy had said no, he would not have stopped.  He could not control his impulses.  The support he was receiving at the time did not assist him in controlling those impulses.  Of this offence, Dr. Riar said, ‘he lacks internal control’.  This offence also occurred at the time that he was under a two year fear of sexual offending against a child recognizance with numerous, detailed conditions designed to manage his risk of re-offending.

[214]     Finally, we have Mr. Caston’s own words.  First, from his autobiography given to Dr. Peter Johnson.  Mr. Caston said in recounting the 1984 offence, his impulsive fantasies “were strong and I could not contorl [sic] them.”  He described watching the young boy and that “I wanted so bad to masterbate [sic] him it hurt not to think about it”.  Second, in his Relapse Prevention Plan of October 11, 2001, Mr. Caston said about his emotional reaction during offending that “all the time I know I should not be doing it but I don’t care I’m getting what I want out of the boy sex!!!”  In 2017, while in custody, he requested to remain in separate confinement because he could not control his urges.

[215]     The defence relies on the gaps in Mr. Caston’s offending as evidence of his control of his impulses.  The evidence of Dr. Riar is relied on when he said that the gaps in offending show Mr. Caston had some ability to control his impulses.  As to Dr. Riar’s evidence that the gaps were part of the cyclical nature of sex offending, the defence submitted that such a description was too amorphous to apply to these gaps.

[216]     I have some difficulty drawing the inference of the control of his impulses from the gaps in offending without any further evidence to strengthen that inference.  There is certainly no necessary conclusion as to why nothing happened.  Nevertheless, even if I did draw the inference that the gaps in offending showed an ability to control his impulses, such an inference would be an incomplete answer to what the section requires.  The section requires that he has shown a failure to control his impulses in any sexual matter.  The four offences and their circumstances show that failure to control.

[217]     Mr. Caston’s statements show it as well.  To say that there are gaps in offending only goes so far as to say that the failure to control impulses was not without interruption.  That is to put a requirement on s. 753(1)(b) which it does not have.

[218]     In my view, the issue of gaps in Mr. Caston’s offending is more properly considered when analyzing the prospective ‘likelihood’ of his failure to control his sexual impulses, a topic to which I now turn.

[219]     The issue of “likelihood” is not as easily resolved.  An element was added to the analysis of this issue by R. v. Boutilier, 2017 SCC 64.  After deciding that future treatment prospects formed part of the analysis at the designation stage, the Court explained further at paragraph 45:

[220]     While the language used above causes some trepidation, it is clear that proof by the Crown beyond a reasonable doubt of a high likelihood of harmful recidivism is required and that treatment prospects may create a reasonable doubt on that point.  With that proposition in mind, I intend to analyze the question of ‘likelihood’ in the context of the four offences and then address, specifically, the issue of whether Mr. Caston’s treatment prospects create a reasonable doubt as to that high likelihood.

[221]     In order to assess that likelihood of Mr. Caston’s behaviour being repeated in the future, it is necessary to look more closely at how he has behaved in the past.  As Dr. Wang testified, the past history is the best predictor of future behaviour.  In doing so, I do not intend to repeat all of the evidence that I have heard and summarized.  I take all of it into account while referring only to those portions which are the most persuasive on this specific issue.

[222]     I have already found that Mr. Caston has been diagnosed as a pedophile since approximately 1980.  That life-long condition has continued creating an ongoing risk of re-offence.  His pedophilic condition, however, is not his only risk factor.  There are multiple risk factors for Mr. Caston, each one adding to the likelihood of him re-offending.  I intend to review the risk factors which stand out in reviewing Mr. Caston’s offending behaviour.  In doing so, I am selecting some risk factors, although the evidence is clear that there are many more.  Discussion of all the risk factors identified in Mr. Caston’s case may add texture to the picture of the likelihood of him causing harm but would not change it.  The risk factors referred to below create a very clear picture on their own.

[223]     With respect to his first offence of sexual assault which occurred in August 1984, he was seen by Dr. Posthuma in October.  Dr. Posthuma noted that Mr. Caston was masturbating nightly to fantasies of young boys.  He also detected anti-social personality traits.  Dr. Kerr saw Mr. Caston for the same offence and reported that Mr. Caston had been aroused by young boys since he was age 13.  The early onset may result in the person becoming fixated in their arousal.  Dr. Kerr’s February 26, 1987 report refers to Mr. Caston’s anti-social behaviour.

[224]     I emphasize these observations and opinions at the time of Mr. Caston’s first offence for several reasons.  First, they support a conclusion that Mr. Caston has a pedophilic fixation.  Such a fixation is one that, by that very characterization, is more difficult to change and, accordingly, is a risk factor that increases the likelihood of re-offending into the future.  Thirty-five years of Mr. Caston’s behaviour has not altered that conclusion.

[225]     Second, Mr. Caston’s anti-social traits are observed from the beginning of his treatment straight through to Dr. Wang in 2015.  The anti-social traits in refusing to follow rules and the willingness to break those rules create another risk factor for re-offending into the future.  Anti-social traits were remarked on by Pioneer House staff in 1986 when it was said, “Manipulative behaviours increased under restrictions as did inappropriate feelings for children and his lack of control over such feelings”.  That risk factor rose to the surface when, in May 1987, despite being on a strict probation order with intensive oversight from a probation officer and a psychiatric social worker (Hitchcock and Friesen, respectively) and taking weekly CPA injections, he offended again.  Dr. Levy notes the anti-social traits in his report of 1991.  They are seen in the deception that he practiced in making false allegations that were the foundation of the 2001 and 2003 public mischief convictions.  They are seen in his deceptions of Wendy Tobin.  Dr. Wang, in 2015, specifically referred to Mr. Caston’s anti-social personality as a risk factor.  And of course he was calculating and deceptive in his interactions with Ms. Dhaliwal and Dr. Thomas around the time of the predicate offence.

[226]     I digress at this point to emphasize the importance of Mr. Caston’s anti-social traits to the analysis of this issue and the entirety of the issues raised by this sentencing.  They are an over-arching consideration in both the designation and the penalty phase.  It is because of the importance of these anti-social traits that Dr. Riar’s evidence that ‘can you believe what he says?’ and ‘it is more a game for them’ will be returned to a number of times in the analysis which follows.

[227]     Also with respect to this first offence, Mr. Caston’s autobiography raises another risk factor:  his cognitive distortions about his offending.  Dr. Thomas explained that cognitive distortions are inaccurate perceptions that are used to rationalize or excuse behaviour.  Dr. Wang testified that the existence of these distortions are well established as a risk factor in the literature.  In Mr. Caston’s context, cognitive distortions refer to his perception of children liking, enjoying, or encouraging sexual activity with adults.  Mr. Caston in his autobiography stated that he thought ‘B.’ would like being molested and ‘it would make him feel good.’  These cognitive distortions are a recurring factor in the treatment of Mr. Caston.  He wrote in his Relapse Prevention Plan for his probation officer, Ms. Tobin, that his red flags included, “thinking about kids all the time, looking at kids pants to see if they got a hard on, getting hard on over kids around me.”  Dr. Johnson noted cognitive distortions in his treatment starting in 2004.  Dr. Thomas, in 2015, described Mr. Caston’s entrenched cognitive distortions.

[228]     Indeed, when creating his self-management plan with Dr. Thomas, he described his thinking errors, including that he was pleasuring children and concluded, “I still believe this to be true.  I would still go for it.”  It will be remembered that Mr. Caston told the police in his statement regarding the February 2016 offence that the five year old boy was enjoying being touched by a stranger in a washroom stall.

[229]     As to the offence in 1987, I have already referred to this offence occurring when Mr. Caston was under a restrictive order and was being provided with intensive support.  The prospect of him reoffending should be greatly decreased when he has that support, and yet he still continues to offend.

[230]     In January 2000, Mr. Caston offended again.  He wrote for his probation officer at the time of his emotional reaction while offending:  “all the time I know I should not be doing it but I don’t care I’m getting what I want out of the boy sex!!!”  Years later he spoke of this offence with Dr. Thomas.  As he described to Dr. Thomas what happened “his affect was bright as he described the incident and he seemed to be reminiscing as he did so.”  This was not a unique occurrence:  on a later occasion Mr. Caston reported to Dr. Thomas of fantasizing about this victim “chuckling as he shared this.”  Mr. Caston in 2015 also told Dr. Wang that he was masturbating daily to thoughts of pre-pubescent males including the victim of his 2000 offence.  To Dr. Wang this indicated that Mr. Caston did not feel badly for his past offence.

[231]     Clearly this evidence illustrates Mr. Caston’s lack of empathy for his victims and constitutes a significant risk factor in his behaviour.  That risk factor is not reduced by the single statement made to Dr. Levy in 1998 that what he had done in the past could have caused psychological damage.  His lack of empathy continued over the time of his offending.  Dr. Riar noted in cross-examination that Mr. Caston lacked emotional insight and could not really see how his actions affected others:  “Even those close around him, he doesn’t care”.  Dr. Riar testified that emotional insight is where empathy comes from.  In his written report, he stated, “I do not believe that he has insight. . .”

[232]     Finally, the 2016 offence also occurred at the same time as the intensive supervision and support that ought to have reduced the likelihood of his offending.  It did not.  As Mr. Caston said in his self-management plan he prepared with Dr. Thomas, “I would likely still offend if the opportunity presented itself.”

[233]     On the issue of the likelihood of causing injury through his failure to control his sexual impulses, the defence, as I understood their submission, relied on several factual matters.  First, the defence pointed to the gaps in offending as undermining the Crown submission.  Second, they pointed to the ‘burn out’ effect given Mr. Caston’s age as impacting the ‘likelihood’ issue.  Third, they relied on Mr. Caston’s ability to develop rapport with those who treat him such that that therapy may be successful and, again, undercut the ‘likelihood’.  Finally, it was submitted that there are pharmacological options that have not been attempted and, if they were, the ‘likelihood’ would not be established.

[234]     I have previously referred to the gap in offending from 1987 to at least 1997 when he was charged with the child pornography offence.  Submissions were made as to exactly how long these gaps were and, for the sake of completeness, I will answer those submissions.  I say for the sake of completeness as, on any finding of fact, there are still significant gaps in the offending of Mr. Caston and the exact mathematics of those gaps is not the key feature.

[235]     The defence urged that the child pornography offence was of a very different kind from the direct offending behaviour on the persons of small children.  As such, the gap should be more precisely as continuing from 1987 to 2000 making it a gap of just under thirteen years.  I have already found as a fact that Mr. Caston’s offending against N.T.W. commenced in 1996, although it did not result in a conviction.  The fact of a conviction ought not to be decisive and, accordingly, I conclude that the gap during this period of time is nine years.  The other gap was from 2000 to 2016 and the defence argues that the 2013 recognizance should not be considered.  I agree with that submission given that there was no admission made that Mr. Caston had actually touched the young boy.  Accordingly, the second gap of offending is 16 years.

[236]     It now falls to be determined what the significance is of those gaps to the element of proof of the ‘likelihood’ of causing injury through failure to control his sexual impulses.

[237]     To do so requires some repetition of the evidence on this point.  Dr. Wang was asked in cross-examination about the gaps in offending.  He stated that there may be something in that experience that could be used to prevent offending in the future.  To the suggestion that the gaps may mean that there may be treatments in the community that may assist, he replied, “all things being equal that could be true”.  I have already referred to Dr. Riar’s evidence on the gaps as conceding that they may show some control by Mr. Caston.  He did testify, however, that the inferences to be drawn worked both for and against Mr. Caston.  The gaps work for him as they show him as not offending.  They work against him in that even with the lapse of time he returns to the same offending.  At the same time, Dr. Riar also noted that sexual offending tends to be cyclical.

[238]     In order to determine ‘likelihood’, I must consider the context of the gaps in offending.  That context includes what I have already referred to by way of risk factors.  It also includes that Mr. Caston’s pedophilic condition is life-long.  It includes how often he has knowingly engaged in those behaviours that are a precursor to offending: collecting images of children over a ten year period; hanging around the water park at Stanley Park; going to clothing optional swimming amongst children at Templeton Pool; and ‘trolling’ at the public library for children over a two month period.  These factors must have been included in Dr. Riar’s reasoning when, with full knowledge of the gaps in offending, he concluded “I don’t think he has the ability to control.”  I accept Dr. Riar’s opinion on this point and infer and conclude from it that the gaps in offending are a very minor factor in the overall analysis of Mr. Caston’s behaviour, both past and prospective.  In the totality of the circumstances, the gaps in offending do not undermine this element of proof either by itself or in conjunction with the other points raised by the defence.

[239]     With respect to the issues of burn out, the rapport with a therapist and the utility of pharmacological treatment, I intend to only refer briefly to my conclusions in response to the defence submission.  With the greatest of respect, I view these factual issues of greater importance at the penalty stage and intend to deal with them more fully at that time.  At this stage, I would only note that Dr. Riar rejected in the clearest of terms that burn out was a factor for Mr. Caston.  With respect to rapport, it is only one aspect of the therapy question and Mr. Caston has, even with it, been inconsistent in developing and benefitting from it.  With regard to pharmacological treatment, it has been largely unsuccessful to date and cannot operate to undercut the likelihood which emerges on the evidence.

[240]     In summary regarding the risk factors of Mr. Caston, there are many and they are entrenched.  The fact that there are so many greatly increases the likelihood of re-offending.  The fact that they are entrenched means they are difficult to change and can reasonably be expected to continue in force into the future.  I am satisfied that these risk factors when taken individually or together create a high likelihood of Mr. Caston’s recidivism and of him causing harm by the failure to control his impulses.

[241]     I am reinforced in this conclusion by the opinions expressed by experts who have seen Mr. Caston at about the time of his offending.  Defence counsel submitted that the psychological testing conducted reflected what category Mr. Caston fell into but did not rise to the level of being of predictive value as to his behaviour.  I accept that submission but note that it was said at several junctures in the evidence that assessments of risk are a combination of testing and clinical judgment.  That was certainly the case for Dr. Williams.  Dr. Thomas, however, did not perform a risk assessment so the defence submission ought to be accepted with respect to her evidence as to risk.  However, Dr. Wang based his conclusion of Mr. Caston being a high risk on “actuarial and structured professional judgment tools.”  Dr. Riar appeared to place much less weight on test results and more on clinical judgment.  In light of my acceptance of the evidence of Dr. Riar, I have no hesitation in relying on that judgment.  Dr. Riar concluded in 2018, “As far as his risk of offending sexually towards young boys, it is very high.”

[242]     In conclusion, therefore, I find that the Crown has proven that, for Mr. Caston, there is the likelihood as set out in s. 753(1)(b).

[243]     As set out in Boutilier, it is now necessary to review the future treatment prospects of Mr. Caston to determine if they are sufficient to raise a reasonable doubt about a high likelihood of harmful recidivism.

[244]     I have determined that his treatment prospects do not raise a reasonable doubt.  I do not intend to review at great length the reasons for this conclusion at this stage.  It must be remembered that Boutilier tells us that at this stage the future treatment prospects only “inform” the designation decision.  When considering Mr. Caston’s treatment prospects at the penalty stage (where they are determinative according to Boutilier), I will review in detail the evidence as it relates to those prospects.  That review and analysis applies equally to this conclusion at the designation stage.

[245]     The reasons for my conclusion that a reasonable doubt is not raised are that the evidence satisfies me as follows:

[246]     All of these considerations lead to the inevitable conclusion that Mr. Caston’s treatment prospects are so tenuous that they cannot create a reasonable doubt about the high likelihood of his reoffending and that his behaviour is intractable.

[247]     A re-offence by Mr. Caston would cause “injury, pain or other evil to other persons”:  see R. v. D.L.S., 2000 BCSC 40 (CanLII), [2000] BCJ No. 47 at paragraph 28.  Lest there be any doubt on that point, the evidence from the Victim Impact Statement completed by T.G.’s mother ought to be borne in mind:  “I’m constantly vigilant and on the alert because despite the briefness, those three minutes in the bathroom in which his abuse occurred I am devastatingly aware of the possibility of the psychological repercussions to echo throughout the entirety of his life.  As his mother this knowledge manifests itself in a deep, agonizing sense of failure that penetrates me, echoing in the hollows it has created in my soul.”

[248]     Therefore, in conclusion, I am satisfied beyond a reasonable doubt that the elements of s. 753(1)(b) have been proven and Mr. Caston is designated as a dangerous offender.  I will go on, however, and consider the two remaining routes to a dangerous offender finding in the event that my conclusion on s. 753(1)(b) is in error.

[249]     Section 753(1)(a)(i) provides:

[250]     As I have indicated, the defence does not challenge that the predicate offence is a serious personal injury offence.  The concession is completely appropriate and I find that the element of serious personal injury offence has been proven.  It remains to analyze the balance of s. 753(1)(a)(i).

[251]     The meaning of the word “pattern” as it is used in s. 753 has been judicially considered.  In R. v. Dow, 1999 BCCA 177, a pattern was described in this way (at paragraph 25):

[252]     Since Dow, the British Columbia Court of Appeal has said in R. v. Walsh, 2017 BCCA 195 (at paragraph 50), that in examining similarities and differences among offences, the sentencing judge must also take into account the motive and context of the two offences.

[253]     To look for that pattern, I refer to the circumstances of the 1985, 1987 and 2000 offences.  The Crown’s submission is that there is a pattern in Mr. Caston’s offending.  Specifically, they note the similarity of age and gender of his victims in all three offences.  In addition, the actions are all of the same type and can be described as fondling by Mr. Caston of the children.  As he said in his 1987 statement, he likes to ‘do it’ to the children rather than them ‘do it to me’.  More importantly, the Crown submits, the motivation for the offences is all the same:  it is Mr. Caston acting on his pedophilia.  Finally, the Crown submits that the context is always that Mr. Caston creates opportunities to offend by creating situations where he has access to children.

[254]     There can be no question that the age and gender of Mr. Caston’s victims are similar, all of them being five years of age or under.  As well, all the actions constituting the offences may be described as fondling.  Nor can it be disputed that the motivation for the offences is for Mr. Caston to satisfy his pedophilic urges.  However, I have difficulty with saying that there is a similarity in the offences by the fact of Mr. Caston creating opportunities.  His first offence was as a result of going to his father’s home when he no longer wanted to remain under the rules of Pioneer House.  He went there to find a place to stay.  It is difficult, if not impossible, to conclude that he went to his father’s home to create an opportunity to offend.  I also find it difficult to describe an offender looking for an opportunity to offend as a similarity between the offences.  The commission of so many offences can be described as looking for an opportunity as to make the ‘similarity’ meaningless.  To this extent, I disagree with the Crown submission.

[255]     That, however, does not end the matter.  In my view, there is another similarity to his prior offending.  In my view, each offence is committed according to a thought out plan that incorporates actions to reduce the chance of detection.  It will be remembered that Dr. Johnson noted in Mr. Caston a clear capacity to plan his behaviour.  The plan may not be sophisticated or detailed but it is a plan nevertheless.  In the first offence, Mr. Caston remained outside and thought through how to have the child come into a place where he could commit the offence with little prospect of being seen.  That place was in his own yard behind the house.  A clear priority in his plan was to minimize the chance of detection.  In the second offence, Mr. Caston waited outside the boy’s room.  In the morning when the boy was alone and no one else was awake, he went into the room and fondled the boy.  A clear priority in this plan was to minimize the chance of detection.  In the third offence, Mr. Caston waited until the others had left the home.  He then locked the door and went with the boy to the bedroom where he fondled him.  Given the return of the grandmother 14 minutes later, it is clear that Mr. Caston planned to move quickly before she returned.  A clear priority in this plan was to minimize the chance of detection.  This characterization of his offence planning is supported by Mr. Caston’s statements to Dr. Levy in the early 1990s (i.e. he hadn’t acted on his fantasies of children because he was afraid of being caught and labelled a dangerous offender) and Dr. Thomas’ opinion that his motivation to not reoffend was almost exclusively motivated by external consequences.  To use the language of Walsh at paragraph 50, it is an ‘essential characteristic’ of his offending to plan the offence in a way that minimizes the chance of getting caught.  While many offenders consider getting away with their offence, many fewer actually incorporate into their plan of the offence, what specific steps they will take to avoid detection.  There is method and similarity to each plan for each offence by Mr. Caston.

[256]     I am satisfied that the similarities to the offences are such that there is a pattern to them as that term is used in the authorities and that this element is proven beyond a reasonable doubt.

[257]     It remains to be determined whether the pattern is one of ‘repetitive behaviour’.  The defence has pointed to the gaps in Mr. Caston’s offending.  To repeat, they are from 1987 to 1996 and from 2000 to 2016.  The defence submits that these gaps are inconsistent with repetitive behaviour.  I disagree.  The Oxford English Dictionary defines “repetition” as, “[t]he action or fact of doing something again; renewal or recurrence of an action or event.”  Repetition does not connote frequency.  An act can be repeated even if that act occurs very infrequently.  In my view, the word ‘repetitive’, as used in this section, should not have a restricted meaning given to it which is not justified by its plain meaning or its context.  I am satisfied that Mr. Caston’s pattern is one of repetitive behaviour.

[258]     The next element is whether the 2016 offence is part of that pattern.

[259]     The similarities of victim, offending actions of fondling and of motivation, i.e. pedophilia, all apply to the 2016 offence.  However, there are differences which are clear.  This offence was against a total stranger.  It happened in a public place, a library washroom.  On first review, it appears that there is more aggression in this offence in his handling of the boy by taking him to a stall and not letting him leave even though he was crying.  Do these dissimilarities serve to remove the February 2016 offence from the ‘pattern’?

[260]     In my view they do not.

[261]     In waiting at the library, Mr. Caston had a plan.  The plan was to wait until a child that fit the victim he was seeking went into the washroom by themselves.  Mr. Caston then would have the victim in a place where the possibility of detection was greatly reduced.  In this case, it became necessary to use some aggression given the limited time available and the boy expressing concern that he would miss his bus.  He took the boy into a washroom stall.  But the exercise of that aggression was based on the circumstances of the plan that he had in mind before he commenced the offence.  The ‘essential characteristic’ of isolating a victim in circumstances where the chance of detection was minimized, exists as well for the 2016 offence.  I am satisfied beyond a reasonable doubt that the 2016 offence forms a part of the pattern as I have identified it.

[262]     Having described the pattern as I have found it to be, does it show a failure to restrain his behaviour in the past?  To answer that question, I return to facts to which I have already referred.  In 1987, Mr. Caston was on a probation order providing strict supervision and conditions to keep him away from children.  He was being followed by a probation officer (Mr. Hitchcock) and two psychiatric social workers (Freisen and Chow).  He had been told on two occasions, approximately three weeks before offending, that he was to have no contact with the boy who was to become a victim.  Instead, he started to stay at that home overnight.  He was receiving antiandrogen medication to reduce his sexual urges and had been receiving it for months.  In 2000, he was on a similar strict order and was being monitored closely by Ms. Tobin.  Included in the conditions were those to keep him away from children.  While telling her he was doing well, he was about to, and did, offend again.  Finally, in 2016 he was on yet another comprehensive order again with terms designed to keep him away from children.  Despite psychotherapy with Dr. Thomas and supervision by Ms. Dhaliwal, he offended again.  This behaviour can only be described as a failure by him to restrain his behaviour.

[263]     I have already referred to the damage to other persons caused by the 2016 offence.  That such injury would occur as a result of Mr. Caston’s particular pattern of offending would be an obvious conclusion even without the specific evidence which I have in this case that it did occur.  From that evidence and the totality of the circumstances, I conclude that the pattern does show such a likelihood of injury.  I am satisfied beyond a reasonable doubt that this element of the section has been proven as well.

[264]     The conclusions I have already reached as to Mr. Caston’s future treatment prospects are also applicable at this point to the designation of him as a dangerous offender under s. 753(1)(a).  I find him to be a dangerous offender under this section as well.

[265]     Section 753(1)(a)(ii) provides:

[266]     I have already referred to the pattern of behaviour as I have found it to be.  The question becomes whether that pattern can be described as one of persistent aggressive behaviour.

[267]     I note at the outset the difference in language of this subsection.  It uses the word ‘persistent’ as opposed to ‘repetitive.’  I have already concluded that ‘repetitive’ does not carry with it any connotation of frequency.  Is the same true for ‘persistent’?  The Oxford English Dictionary defines persistent as, “[e]xisting continuously in time; enduring. Of an action or condition: continued, continuous, constant, constantly repeated.”  This definition does, contrary to that of ‘repetitive’, include the meaning of frequency or lack of interruption.  I have only been able to locate one authority where this precise point has come up.  In R. v. Yanoshewski, (1996) 1996 CanLII 4916 (SK CA), 104 C.C.C. (3d) 512, the Saskatchewan Court of Appeal dealt with a ground of appeal which alleged the trial judge had found ‘persistent aggressive behaviour’ as opposed to merely ‘repetitive behaviour’.  Specifically, it was argued that ‘persistent’ should be read as meaning something more than merely ‘repetitive’.  After referring to the Oxford English Dictionary definition as quoted above, the court said, “[t]he judge made no error in finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed the offences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences were being committed”.  [Emphasis added.]  I take two things from that holding.  First, in the circumstances of that particular case, a finding of ‘persistent’ was fully open to the trial judge.  Second, and more importantly for the circumstances of Mr. Caston’s case, the court seems to implicitly accept that significant periods of time during which no offences occurred would undercut any finding of ‘persistent’ aggressive behaviour.

[268]     I appreciate that, at one point in his evidence, Dr. Riar referred to Mr. Caston as a persistent sexual offender.  While I take Dr. Riar’s opinion into account, I do not take it as determinative, particularly given the interpretation that I have given to the word ‘persistent’ as used in the Criminal Code.

[269]     Mr. Caston’s offending behaviour has been interrupted by two lengthy periods in which there are no offences.  In those circumstances, I am not satisfied beyond a reasonable doubt that this element of the route to dangerous designation has been proven.

[270]     I should be clear that this is the only basis on which I find that this route to designation is not proven.  In particular, I accept that the pattern of behaviour does include ‘aggressive’ behaviour, bearing in mind that the assaultive nature of the offences necessarily import a level of aggression.  I also accept that the 2016 offence forms a part of that pattern insofar as it too is an act of aggression.  That the level of aggression is heightened in the 2016 offence does not, in my view, operate to remove it from the pattern.  Finally, I am satisfied that his pattern of behaviour exhibits a substantial degree of indifference to the consequences of his behaviour on others.  Although I am of the view that the acts themselves on very small children show that substantial degree of indifference without anything more, there is in this case more evidence.  Mr. Caston has shown over the decades, in which he has offended and been treated, a clear lack of empathy.  The evidence that I have already summarized is clear that he looks back on his offending against N.T.W., not with empathy, but with a sense of nostalgia.  He has, again over decades, shown cognitive distortions that these small children enjoy sexual activity with him.  In the totality of the circumstances, it could not be clearer that he has a substantial degree of indifference to the consequences of his behaviour.  Accordingly, if I were wrong in my interpretation of the word “persistent”, I would otherwise have found Mr. Caston to be a dangerous offender under this section as well.

[271]     In summary, however, there is a reasonable doubt as to Mr. Caston’s designation as a dangerous offender under s. 753(1)(a)(ii) and I decline to designate him a dangerous offender under that section.

[272]     I have concluded beyond a reasonable doubt that Mr. Caston is, pursuant to s. 753(1)(a)(i) and s. 753(1)(b), a dangerous offender.  I am satisfied that Mr. Caston presents a high likelihood of harmful recidivism and that his behaviour is intractable.

[273]     Having found that Mr. Caston is a dangerous offender, it remains to determine what penalty is to be imposed.  The relevant portions of s. 753 provide as follows:

[274]     Boutilier makes clear that s. (4.1) does not place a burden of proof on the offender to prove the possibility of a lesser sentence.  There is no obligation on any of the parties to prove the adequate sentence one way or another.

[275]     As also stated in Boutilier at paragraph 69, s. 753(4.1) guides the sentencing judge to exhaust the least coercive sentencing options regarding the risk posed by the offender before arriving at indeterminate detention as the last option.  Therefore, I intend to proceed with the least restrictive option for Mr. Caston’s management in the community and continue through the available options.

[276]     Prior to delving into the specifics of that analysis, it is important to bear in mind general sentencing principles and their application to the sentencing of Mr. Caston.  It goes without saying that all aggravating and mitigating circumstances must be taken into account in order to arrive at an appropriate sentence.

[277]     As dangerous offender proceedings form part of the sentencing process, this sentencing must still be guided by the fundamental purposes and principles of sentencing as contained in ss. 718 to 718.2 of the Criminal Code: see Boutilier at paragraphs 53 and 56.  However, having designated Mr. Caston as a dangerous offender, it is necessary to sentence in accordance with the logic of that decision.  As was stated in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at paragraph 27:

[278]     With that in mind, I turn to the sentencing factors which must form part of my ultimate sentencing decision.

[279]     The first set of circumstances revolve around those of the offence.  On February 10, 2016, Mr. Caston waited, as he had for three or four days, for a small boy to be his victim.  The victim was a stranger.  The washroom served, very much, as Mr. Caston’s trap.  And once the five year old boy was in the trap, Mr. Caston acted.  It is difficult to exaggerate the predatory nature of this offence.  Mr. Caston took control of the boy to an extent that, at the very least, approaches confinement.  The aggressiveness and the force of his actions are significant aspects of his offending behaviour.  The brevity of the offence does not mitigate its seriousness.  I also add to my conclusion as to the extreme seriousness of the offence, the statutory aggravating factor of this being an offence against a child.

[280]     What of the moral culpability of Mr. Caston?  In one sense, it is reasonable to note that his pedophilic condition coupled with his low IQ are not choices that Mr. Caston has made.  I accept that many of his problems arrived with him at his birth.  Yet that does little to reduce his moral culpability at age 53.  He has known since a very young age of his attraction to very young boys and that that attraction is wrong and he must not act on it.  He has said so to those who deal with him.  He has been offered treatment over many years and, most importantly at this stage, he had available that treatment at the time of this offence.  It will be remembered that he was on a court order at the time of this offence and that his plea in this matter includes the acknowledgement that he breached that order.  Therefore when having the opportunity to work on not offending, he was not accepting that treatment.  He had refused medication.  He was accomplishing virtually nothing with Dr. Thomas and, indeed, was actively misleading her as to his own thoughts and urges at the time of the offence.  He told her nothing of his actions at the library as he lay in wait.  He was similarly deceptive with his probation officer, Rita Dhaliwal.  He had some engagement with COSA, however, that engagement clearly was of little assistance.  He had recently had involvement with substance abuse management but his commitment was, to put it mildly, uneven.  It is difficult to imagine what more could possibly have been available or in place for Mr. Caston.  Yet he chose to wait outside the library.  In those circumstances, I have concluded that his moral culpability is at a very high level.

[281]     His criminal record is also an aggravating factor.  This is his fourth sexual offence against a small child.  I accept some of what the defence says of the child pornography conviction:  namely, that subsequent jurisprudence may make that conviction unlikely today.  Yet it still is a conviction and its circumstances (the collection of hundreds of images of naked children over a ten year period starting on the heels of his last conviction) are still aggravating.  I also accept that the seriousness of the criminal record is mitigated by the gaps in that record.

[282]     As to Mr. Caston’s personal circumstances, they can fairly be described as difficult.  He has lived alone for decades in single room occupancy accommodations.  He has spent a great deal of his time staying inside his room in order to avoid offending.  He has very limited engagement with any family members.  His life is a lonely one.  These circumstances provide some mitigation, however, in the overall balancing of sentencing factors, that mitigation does not reduce the primacy of denunciation and deterrence over rehabilitation.

[283]     Finally, there are his guilty pleas to the two offences before the court.  His pleas are clearly mitigating in saving the time of the administration of justice and in sparing the victim and his family the rigours of a trial.  Yet, when the circumstances of the offence (the evidence of the person who entered the washroom, Mr. H.; the spontaneous utterance of the victim that he had been touched on his penis; and the complete confession of Mr. Caston) are examined, it is clear that the guilty pleas in this case were a recognition of the futility of contesting the allegations.  Guilty verdicts were virtually inevitable.  In short, there is a limited mitigation to be recognized for the guilty pleas.

[284]     Of course, there are other sentencing principles which apply:  proportionality (s. 718.2(b)), the use of the least restrictive sanction (s. 718.2(d)), and the step up principle.  The latter is significant as Mr. Caston’s longest sentence to date is five months.  I intend to bear each of these in mind in the analysis which follows.

[285]     In summary, the sentencing factors to which I have just referred lead to the clear conclusion that general deterrence and denunciation are the dominant principles to be applied in this sentencing.  I would arrive at that conclusion even if it were not so required by s. 718.01 of the Criminal Code.  The seriousness of the offence, the vulnerability of the victim, and the criminal history of Mr. Caston lead to that conclusion before any consideration is given to the broader considerations which led to his designation as a dangerous offender.  The general sentencing considerations lead to Mr. Caston’s separation from society as a necessary goal of this sentencing.

[286]     In assessing whether there is a ‘reasonable expectation’ I bear in mind what was said in R. v. Walsh, 2017 BCCA 195 at paragraph 95:

[287]     In order to analyze this question, it is necessary to review the sentence sought by the Crown and how that sentence may be served.

[288]     The Crown’s submission is that a sentence of 11 years for the sexual assault offence is appropriate and one year consecutive for the breach of the fear of sexual offending against a child recognizance.  Mr. Caston has been in custody since February 10, 2016.  He has served just over three years and four months.  The Crown accepts that he should receive 1.5:1 credit for that time.  The result is that he would have approximately five years deducted from the sentence imposed.  For the purpose of analyzing whether a conventional sentence adequately protects the public, I will assume that Mr. Caston receives the sentence requested by the Crown.  The result is a sentence of 12 years less five years pre-trial custody for a sentence of seven new years.  How much of that time Mr. Caston will actually serve in custody is unknown:  he is eligible for day parole after serving one-sixth (i.e. one year and two months), and full parole after one third (i.e. two years and four months).  In the event his behaviour while in custody does not warrant parole, his statutory release would be after two-thirds (i.e. four years and eight months).  In the event that the inmate’s behaviour, if released, becomes of concern to public safety, there is power for all release to be denied and the inmate to serve every day of their sentence, in this case, seven years.

[289]     Accordingly, there is a wide range of possibilities for how much time Mr. Caston would spend in custody serving a determinate sentence, from as little as one year and two months to seven years.  No matter how those possibilities play themselves out, one thing is clear:  in seven years, there would be no supervision of Mr. Caston whatsoever.

[290]     It is in that context that consideration must be given as to whether a determinate sentence adequately protects the public from the prospect of Mr. Caston committing a serious personal injury offence.

[291]     I have come to the conclusion that such a sentence would not adequately protect the public.  I say so for the following reasons:

[292]     The defence submits that the goal must be to reduce the risk of re-offence to an acceptable level, not to eliminate it.  I accept that submission, however, it does not assist the defence in this particular case.  Mr. Caston, as a homosexual pedophile, will never be treated so as to eliminate the risk.  His anti-social traits will never be treated so as not to be a factor.  Those facts alone do not lead to my conclusion.  It is the totality of the circumstances in which Mr. Caston’s pedophilia and anti-social traits have played themselves out for over thirty-five years which is determinative.  The risk cannot be reduced to an acceptable level within the time frame of a conventional sentence.

[293]     The next least restrictive sentencing option is a determinate sentence followed by a long-term supervision order.  A long-term supervision order can be in place for ten years after a sentence of imprisonment that is in excess of two years.  An aspect of whether a long-term supervision order is appropriate is to have in mind the resources that are available to monitor Mr. Caston on such an order and thereby protect the public.  To do so, it is necessary to review further evidence given during the course of this sentencing.  This evidence was not challenged at the time it was given, nor during submissions and, therefore, I accept this evidence as fact.

[294]     Kandice Goldstone, a program manager with Correctional Services of Canada, testified to the programs available in federal institutions for sex offenders, including those with cognitive disabilities.  Specifically, she testified that the Integrated Correctional Program Model is offered at all federal institutions.  The program for those with cognitive difficulties is called the Adapted Sex Offender Program and is available only at Pacific Institution.  These programs are now delivered, not by psychologists, but by facilitators, although psychologists may be consulted.  These facilitators must have post-secondary education and two years of relevant experience.  The adapted program for offenders with cognitive difficulties has 72 sessions.  It requires five to six months to complete.  At the conclusion, the offenders receive a “successfully completed”, an “attended all classes” or an “incomplete” score depending on their performance.  There is a 12 session maintenance program which is available both while incarcerated or while in the community.

[295]     Defence counsel emphasized that Mr. Caston has never served a federal sentence and therefore has never had the opportunity to access this programming.

[296]     Shannon Plumpton, a parole officer supervisor with Correctional Services Canada, testified to the supervision of offenders on parole.  Offenders who are on a long-term supervision order may be released on detailed conditions.  For high risk offenders, parole officers may supervise eight offenders.  The supervision team includes three psychologists who service over 300 offenders.  There is a 12 week treatment program for sex offenders to reinforce the skills they learned while in custody.  For medications, the offender can attend a community clinic to receive their injection.  On very rare occasions, she has seen a mental health worker accompany an offender to their appointment.

[297]     As to residence, high risk offenders are most often placed in Belkin House which has four parole officers who work at the facility during daytime business hours.  High risk offenders are usually required to meet with a parole officer once or twice a week.  Curfews commence at 6 p.m. and are often gradually relaxed to 11 p.m.  Parole supervision is based on the “honour system”.  That system, she testified, is only as good as the offender who is self-reporting.

[298]     If the offender does not follow the conditions of release, the parole officer can issue a warrant to have the offender brought back into custody.  A warrant can also be issued prior to the commission of a breach.  If the offender is convicted of a breach of a long-term supervision order, the Crown can proceed with a dangerous offender proceeding.

[299]     With this evidence in mind, it is now necessary to turn to the position of the parties and an analysis of those positions.

[300]     Crown counsel submits that Mr. Caston’s risk cannot be managed with any expectation of success in stopping him from re-offending.  The future treatment of Mr. Caston on any front, be it pharmacological, psychological or supervisory, or all three together has already shown itself ineffective in stopping Mr. Caston’s commission of serious personal injury offences.  There is, the Crown submits, no possibility that his risk can be controlled in the community.

[301]     Defence counsel submits that Mr. Caston is likely to benefit from the Adapted Sex Offender Program.  This is because he benefitted from the treatment by Dr. Johnson who had some expertise in dealing with low functioning offenders.  Apart from Dr. Johnson, Mr. Caston has not had the benefit of treatment geared to his needs as a low functioning offender.  The defence also submits that the heightened level of supervision in the federal system will adequately monitor Mr. Caston.  The defence also relies on the heightened prospect of an indeterminate sentence in the event of breach of any long-term supervision order.  In light of Dr. Johnson using that fear of Mr. Caston’s incarceration when treating him, those consequences would be a strong motivator for Mr. Caston not to offend.

[302]     The positions taken by both parties, quite appropriately in light of Boutilier at paragraph 43, rely on the conclusions to be drawn from Mr. Caston’s history of supervision and treatment and the possible approach to his future treatment.  In light of those submissions, I will analyze each of those two areas.

[303]     Having earlier summarized Mr. Caston’s history of supervision and treatment, it is now necessary to come to conclusions with respect to that supervision and treatment in determining the appropriate sentence.  It has been recognized since Mr. Caston was a teenager that he required specialized, intensive attention and supervision.  With the behaviour that led to his admission at Riverview Hospital, the scope of the issues that required that supervision and treatment began to crystallize.

[304]     In 1980, he was diagnosed with pedophilia.  Regardless of the questions that can be raised about the diagnosis of an adolescent, the reality is that the diagnosis has turned out to be accurate and beyond question.  After his first offence in 1984, the treatment of his pedophilia included the administration of medication.  Specifically, for five years, from 1986 to 1991, he was administered CPA.  Although Dr. Riar was of the view that the dosage could be higher, it was the dosage at the high end of what Dr. Wang would have prescribed.  Either way, it was a prolonged administration of a significant amount of a drug to inhibit his reoffending.  The 1987 offence showed that it did not do so.  Mr. Caston did miss one injection around the time of the 1987 offence but the expert evidence I have heard does not create a link of causation between the missed injection and the offence.  I have already made a finding of fact in this regard.  I have heard the evidence of Dr. Kerr and Dr. Wang on the limited impact of one missed injection.  However, the issue may have been expressed best by Dr. Wydra who spoke with Mr. Caston after the offence and opined that the missed injection was less likely to be important:  “Rather a pattern of increasingly stronger sexual urges can be seen when talking with Mr. Caston about the months prior to the incident.”

[305]     Mr. Caston told Dr. Thomas in 2015 that he would use CPA again, however, he had changed his mind when he saw Dr. Wang.  Mr. Caston used a different medication that Dr. Wang felt would reduce his sexual urges.  However, he stopped taking that medication as it decreased his ability to masturbate.  He was next prescribed CPA by Dr. Murphy when in custody at a time when it was thought he might be released.  During the time he was on CPA, he was regularly seen to be masturbating by Mr. Anderson, the correctional officer.  As well, he was seen to be sexually aggressive with another inmate on February 5, 2017.  Dr. Murphy provided her opinion that she would expect Mr. Caston’s testosterone level at approximately 1.2 in February 2017.  Dr. Riar opined that this was at near ‘castration level’.

[306]     Not only has CPA had virtually no impact on his offending behaviour, Mr. Caston’s attitude to taking medication is inconsistent with the successful management of his behaviour.  To his credit he requested the use of CPA from Dr. Kerr in the 1980s and even requested an increase in dosage when he questioned its effectiveness.  He expressed that he thought it helped until at least July 1988.  Since 1991, however, his willingness to take medication has been poor.  He did not take it as part of his engagement in the mid-1990s.  He refused to take the medication with Dr. Tomita in 2002.  He said he would take it with Dr. Thomas but when he saw Dr. Wang to prescribe it, he did not take it.  The defence submitted that his not wanting to take medication was for bona fide reasons and not as a manipulation.  I do not accept that submission.  I find that his reasons for doing so were not due to side effects from prior usage or his concern for side effects from reading literature provided by Dr. Thomas.  He did not take the medication because he did not want to decrease his urges.  At the time he took medication while in custody, he told Dr. Murphy that the dangerous offender question would not be raised now that he is accepting treatment.  I conclude that he only takes it when he wants to present as someone that he is not: serious about his own treatment.

[307]     The defence relied on Dr. Riar’s evidence that there was still room for Mr. Caston to use anti-androgen medication effectively and beneficially.  The problem arises from Mr. Caston’s anti-social traits.  He lies, manipulates and deceives in order to do what he wants.  His highly inconsistent statements about the effect of the medications on him makes the monitoring of his progress, if there is any, impossible.  This inconsistency does not arise from the variable effects of the medication:  it will be remembered that Mr. Caston gave very different versions of the impact of the aversion therapy.  In answer to Dr. Riar’s rhetorical question, ‘can you believe what he says?’ the answer is clearly no.

[308]     In sum, Mr. Caston’s history of medication use as a treatment has not been successful when he has engaged with it.  Just as often he has not engaged with it.  And it is not possible to reliably state whether medications really are beneficial for him as you cannot rely on what he says.

[309]     Mr. Caston’s history of treatment includes counselling much of it by trained psychologists.  That counselling covers the period from the early 1980s to approximately 1991.  It continues in 1995 for approximately six months.  It starts again in mid-1998 until approximately the end of 2005.  It recommences in 2013 until his incarceration in February 2016.  It covers nearly 20 years.  It covers a wide variety of techniques.  It was administered by a variety of individuals all of whom brought to bear their own skills and abilities.  Of course counselling has had to attempt to manage a wide variety of behaviour traits of Mr. Caston.  First is his lack of empathy which was noted in 1980 (“Expressions of remorse and a return to the behaviour as soon as the opportunity presented itself”), in 2001 (Ms. Tobin said that Mr. Caston ‘lit up’ as he discussed his offence) and in 2015 (Dr. Thomas testified that Mr. Caston spoke of his 2000 offence as if it were a good memory).  Second are his cognitive distortions which he worked on with Dr. Johnson in 2004 and Dr. Thomas in 2015.  It will be remembered that in his statement to the police regarding the predicate offence, Mr. Caston stated that the five year old boy enjoyed being touched.  Third is his impulsivity which was noted by Dr. Murdoch in 1980, in his own autobiography in 1988, by Dr. Bowden in the same year and Dr. Wang in 2015.  Finally, and perhaps most importantly, are his anti-social traits (i.e. manipulation, lying and deception).  They too have been identified consistently over many years:  by Dr. Murdoch in 1979, Dr. Posthuma in 1984, at Pioneer House in 1985, by Dr. Levy in 1991, and by Dr. Wang in 2015.

[310]     The number of behaviours to be managed suggests how much psychological and counselling work there has had to be done with Mr. Caston.  As Dr. Johnson said, “[h]e is a very psychologically damaged man.”  Their persistence over decades makes clear that management of Mr. Caston has not been successful.

[311]     The defence submits that Mr. Caston’s willingness to engage in therapy is a very positive attribute.  The defence points to those occasions when Mr. Caston has engaged in therapy when under no legal obligation to do so.  I am unable to give his willingness to engage in therapy much weight.  First, therapy has had virtually no success.  He has offended in 1987, 2000 and 2016 when treatment was available.  Second, and most troubling, is Dr. Riar’s comment on the impact of Mr. Caston’s anti-social traits:  ‘it is a game’.

[312]     The defence submits that Mr. Caston has succeeded when he has been provided the appropriate therapy.  Specifically, the defence submits that Dr. Johnson, with his experience in working with low functioning offenders, was able to succeed in his treatment of Mr. Caston.  The proof is a lengthy period of non-offending which followed the conclusion of Dr. Johnson’s treatment in approximately 2005.

[313]     I am unable to draw that sweeping conclusion.  First, to do so is to deny the skill and ability of a long line of professionals who have worked with Mr. Caston.  I had the opportunity to listen to Dr. Levy and Dr. Thomas for example.  I also was able to read their notes of their interaction with Mr. Caston.  I simply cannot attribute their lack of success to an inability to work with an offender who is low functioning.  Second, I am unable to attribute that success to Dr. Johnson when Mr. Caston does not do so.  His reference to ‘chums talking’ with no other significant work being done does not suggest Dr. Johnson as the source of Mr. Caston’s non-offending.

[314]     Nor does it appear that Mr. Caston has any confidence that therapy will assist.  In his self-management plan completed with Dr. Thomas in 2015, he was asked what he could do if his risk to reoffend increased, to which he said, “I sought out help in the past, voluntarily, and still re-offended within weeks of completing.”

[315]     It is not possible to conclusively determine why therapy has had such negligible results and is described by Dr. Thomas as a ‘closed door’.  Certainly, Dr. Thomas was influenced by her observation that Mr. Caston would rarely apply her suggestions to his behaviour.  For example, several of the experts testified that good rapport between Mr. Caston and the treatment professionals is key to that counselling being successful.  Dr. Johnson and Dr. Thomas testified that they felt that they had good rapport with Mr. Caston.  The defence argued that Dr. Johnson’s good rapport led to success.  Even accepting that inference, it is conspicuous how solitary that success is in years and years of treatment.  Dr. Thomas did not have that success as Mr. Caston offended, indeed was planning his next offence, during the time that he was seeing her.  Certainly, his anti-social traits make it problematic for even a professional to be confident that they have, in fact, a ‘therapeutic alliance’ with him.  Even if that professional does have that rapport, it is clear that it is insufficient to stop his offending.

[316]     His history makes clear that there is no reasonable expectation that psychological treatment would be successful.

[317]     Mr. Caston’s history also includes his supervision.  That supervision of Mr. Caston by probation officers and through related services has been much more frequent than the psychological counselling.  An example is in 1987, before Mr. Caston’s second offence, he was monitored by the IMP program which saw him four times per week.  It was that monitoring which was able to see Mr. Caston’s contact with the victim of the second offence and warn him on April 28 and 29, 1987 to stay away.  As we know, Mr. Caston went on to offend just over three weeks later.  When he came to be supervised for his child pornography conviction, he neglected his hygiene to the point that he could not be placed in a relapse prevention group setting.  Ms. Tobin concluded that his actions in that regard were deliberate.  I note that shortly thereafter when the opportunity to see Dr. Johnson arose, Mr. Caston cleaned himself up.  I have drawn the conclusion and find as a fact that Mr. Caston did plan a course of action to ensure that he would not go into that group setting.  As well, Mr. Caston reported to Ms. Tobin that he was staying away from children at about the time of his 2000 offence.  It is therefore understandable that Ms. Tobin would conclude that while on supervision, “he has been manipulative, provocative and self-focused.”  It will be remembered that when asked in 2003 what has changed in the last ten years in his risk level, Mr. Caston replied, “not much.”

[318]     Although there is a gap in his offending, it should be remembered how Mr. Caston came to be supervised again in 2013.  He was attending a clothing optional swim at Templeton Pool where children were present.  For Mr. Caston, with his history of more than thirty years of pedophilia, to engage in that conduct makes very clear how little impact all previous treatment and supervision he has had.  He had said himself what behaviour led to his re-offending, yet here he engaged in exactly that behaviour.  He then was supervised by Rita Dhaliwal who saw Mr. Caston weekly.  In addition to monitoring his behaviour on his order, she put him in touch with COSA and with substance abuse management meetings.  She saw him on February 9, 2016, the day before the offence at the library.  Mr. Caston had not disclosed to her that he had been ‘trolling’ at the library.  With these layers of supervision he still offended.

[319]     Finally, while incarcerated, Mr. Caston has not avoided sexually inappropriate behaviour.  In other words, in circumstances of the most stringent supervision where his misbehaviour does have consequences, he still is unable to bring his behaviour within acceptable norms.

[320]     Taken separately, Mr. Caston has had virtually no benefit from pharmacological, psychological or supervisory assistance.  I have already noted the number of highly skilled people doing their best for Mr. Caston.  Taken together, this support and treatment has had no appreciable gains.  This can be seen most clearly when Mr. Caston’s own relapse prevention plans are reviewed.

[321]     Mr. Caston prepared two such plans with Ms. Tobin in 2001.  The more detailed of the two shows how clearly Mr. Caston understands what his risks (being around kids, parks, pools or if left alone with a kid) are and his emotions (“all the time I know I should not be doing it but I don’t care I’m getting what I want out of the boy sex!!!”) around his offence cycle.  That part of Mr. Caston’s knowledge and insight is positive.  However, it is central, in my view, to look at what he does with that knowledge and insight.  As noted above, he was picked up by the police in the summer of 2002 at the Stanley Park water park after complaints from parents.  In October, he admitted to Ms. Tobin that he had been attending the water park regularly.  Even with Mr. Caston’s clear knowledge of the issues to be dealt with, the supervision and treatment made no gains.  As Dr. Johnson summarized in 2005, “[i]t would be hard to look at specific gains in terms of Mr. Caston’s progress, though he has stayed primarily out of offending.”  As Dr. Riar said, “he is not assimilating.  He is saying what we want to see.”

[322]     Mr. Caston came to perform the same exercise of planning in 2015 when he filled out with Dr. Thomas what was now called a self-management plan.  The plan again shows the level of insight he had exhibited when preparing the plan of 2001.  He discussed the places he should avoid and his ‘thinking errors’.  He wrote that he would try not to fantasize about children.  He referred to getting help by saying, “I sought out help in the past, voluntarily, and still re-offended within weeks of completing.”  He concluded by saying, “I would likely still offend if the opportunity presented itself.”

[323]     That conclusion by Mr. Caston is extraordinary when one considers the amount of time and effort that has gone into his supervision and treatment.  It also leads to an analysis of his future treatment prospects.

[324]     While Mr. Caston’s past response to treatment and supervision is important, the prospective view is, in the words of Boutilier (at paragraph 45) determinative.  Accordingly, I will now analyze in greater depth the evidence already summarized on his future treatment prospects.  This analysis is intended to build upon what was said at the designation stage about the ‘likelihood’ of his behaviour.

[325]     Prior to doing so, it is important to be clear about this issue as it relates specifically to Mr. Caston.  Mr. Caston is a pedophile.  He will not be cured of that condition.  He has anti-social personality traits.  He will not be cured of those traits, ‘you can only smooth the rough edges’ according to Dr. Levy.  Therefore, while I will use the word ‘treatment’, what is actually in issue is management.  In short, can the public be adequately protected by the management of Mr. Caston in the community?

[326]     On this issue, I view the evidence of Dr. Thomas and Dr. Riar to be the most important.  Dr. Thomas has met with Mr. Caston thirteen times leading up to his last offence.  Dr. Riar brings the perspective of a court ordered assessor.  It is they who have recently reviewed Mr. Caston’s history and applied their knowledge of his past and their expertise to what treatment or management prospects there are for him at this time.

[327]     Both Dr. Thomas and Dr. Riar opined that a three-pronged approach to Mr. Caston’s management was essential.  Indeed, Dr. Riar expressed the view that if any of the three approaches were not being utilized, Mr. Caston would likely re-offend.  It was clear that both of the doctors viewed a three-pronged approach as essential as Mr. Caston requires comprehensive and intensive management:  his challenges are simply that numerous.

[328]     The three prongs of the recommended approach are medication, psychotherapy and supervision.  I intend to analyze each of those approaches in turn.  In doing so I will refer to the defence submissions and alternatives with regard to each prong.  However, it is important to also analyze the appropriate sentence comprehensively and, accordingly, I intend to conclude with an over-arching view of Mr. Caston’s future treatment prospects.

[329]     Most of Mr. Caston’s treatment with medication has been with the drug CPA.  Dr. Riar expressed the opinion that CPA did not work for Mr. Caston.  (He did remark however, that he would likely consider continuing to administer it in conjunction with Lupron.)  CPA certainly did not work in 1987 when Mr. Caston offended while in the midst of five years of the administration of the drug.  It certainly did not work during the time that he was in custody when he was sexually aggressive in February 2017.  Several of the experts agreed that the scientific research does not clearly support the effectiveness of CPA.  Dr. Wang however, was of the view that CPA could be of assistance to Mr. Caston.  The conflict with the evidence of Dr. Riar was raised in submissions.  I am of the view that the conflict is not of critical importance.  I say this as I do not view either witness to be suggesting that medication is the complete answer to the management of Mr. Caston.  Both view medication as of some benefit.  I expect that both would not be dogmatic about how to achieve that benefit.  In short, it is a difference of perspective, not of right or wrong.

[330]     More importantly, the effectiveness of CPA (or any other medication) is based, to some extent, on Mr. Caston accurately reporting the impact of the medication on him.  His history shows that it is not possible to rely on the accuracy of his self-reporting.  In those circumstances, Dr. Riar opined that a different medication, Lupron, would be what he would prescribe for Mr. Caston.  That suggestion must be considered in conjunction with the complex practicalities of the administration of medication to Mr. Caston.

[331]     It is taken as a given that the prescription of Lupron to Mr. Caston would be more effective than CPA or any other prescription that has been discussed.  Given the history, however, that is not necessarily saying much.  It is still an unknown how effective Lupron would be with Mr. Caston.  To come to that conclusion is not to second guess Dr. Riar, it is simply to recognize the reality of individual variability in response to medication.  We commence the analysis of the issue of medication for Mr. Caston from a perspective of uncertainty.

[332]     All of these considerations are secondary to the practicalities associated with Mr. Caston receiving the medication that may work for him.  Here I am not going to pause over the possibility that Lupron may not ever be prescribed for him:  different treatment professionals have different points of view and that may be the case with the prescription of medications for Mr. Caston.  The practicalities that are more concerning are that the conditions of release of an offender cannot contain a requirement to take a specific medication:  a specific medication is the prerogative of the medical profession.  Nor is it likely that a member of the medical profession will administer a medication without the consent of the patient.  All of which is a way to say that, at the end of the day, Mr. Caston will exert control over what medication he takes.  He did so in 2002 with Dr. Tomita while on his order from 2000; he did so in 2015 with Dr. Wang while on his order from 2013.  The possibility of some sanction after he stops taking medication is a cold and inadequate comfort to those in the public against whom he is likely to offend against in the meantime.  That will remain the case until such time as a court order expires and then he can decide to take no medication at all.

[333]     As to the effectiveness of Lupron during the time that Mr. Caston is taking it, Dr. Riar emphasized that one needs to know the impact of the drug on the sexual interests and sex drive.  That is not known through lab tests on testosterone levels but through self-reporting.  Again, effective use of Lupron ultimately depends on Mr. Caston and no reliance can be safely placed on Mr. Caston.

[334]     Finally, the evidence of Ms. Plumpton as to the practicalities of administration of the medication was not reassuring.  For Mr. Caston, who has a history of deciding for himself when he takes his medication, the only reasonable mechanism of administration is by injection.  In that way there can be clarity that he actually took the medication.  When supervised by a parole officer, Mr. Caston would have to attend a community clinic for his injection.  It is possible that he could be accompanied to that clinic by a mental health worker.  In short, Mr. Caston receiving his medication is very dependent on Mr. Caston.  His willingness and his follow through are key to him receiving his medications and he cannot be relied on.  As Dr. Riar said, “he is not serious in taking medications.”

[335]     I appreciate the defence submission that Mr. Caston was the one who asked for medications in the first place with Dr. Kerr in the 1980s.  Indeed, when Mr. Caston felt that dosage was inadequate, he said so to Dr. Kerr.  He continued the medications for five years.  Those are circumstances to be taken into account.  However, those actions are expressions of his attitude at that time.  It is the utter inconsistency of Mr. Caston’s approach to medications since then which defines him.  He does what he pleases when he pleases.  Examples of a positive engagement only underline that inconsistency.  Mr. Caston has agreed to take medication while incarcerated which, it is submitted, shows his current motivation for change.  I have already noted the evidence of Dr. Murphy that Mr. Caston said that now that he was taking treatment, the dangerous offender possibility was off the table.  Even without that calculated statement, I would and do conclude that Mr. Caston’s motivation is more a gambit than a change of heart.

[336]     Dr. Riar spoke of a chance for Mr. Caston to ‘prove himself otherwise’.  Mr. Caston has had that opportunity for the last 30 years.  Are we further ahead with his risk?  To Ms. Tobin, Mr. Caston said, ‘not much’.  Mr. Caston has used the opportunity that he has had to offend again.

[337]     Defence counsel relied on paragraphs 62 and 66 of Jones to submit that the control provided by a long-term supervision order coupled with Mr. Caston’s fear of a dangerous offender designation and indeterminate sentence will deter Mr. Caston.  Yet in 1992 Mr. Caston spoke to Dr. Levy of his fear of being labelled a dangerous offender.  That was two sexual offences ago.  He spoke to Dr. Thomas of his fear of being labelled a dangerous offender.  This was within months of him reoffending.  Mr. Caston’s own words make it clear that he acts out sexually despite knowing that it is wrong and there are consequences.  Awaiting this sentencing hearing, his incarceration did not have a deterrent effect on him:  he was sexually inappropriate in the very environment he now suggests he does not want to return to.  I place no weight on the prospect of specific deterrence to Mr. Caston.

[338]     After analyzing all the evidence I find myself in complete agreement with the following excerpt from R. v. R.B., [2011] O.J. No. 1871 at paragraph 14 where it was said:

[339]     The second prong is the use of psychotherapy.  The defence relies on the treatment that would be available to Mr. Caston prior to his release from prison and the supervision that would follow thereafter.  The treatment relied on by the defence is that of the facilitators as described by Ms. Goldstone.  It should be noted that Dr. Riar took into account in coming to his opinion, that Mr. Caston could be managed in the community was that he would receive his treatment by trained psychologists.  While recognizing that concern, it is very much an unknown how much any treatment really stays with Mr. Caston before he offends again.  Even taking into account the gaps in his offending, it is clear that treatment has existed at the same time as he is offending.

[340]     The defence submits that if Mr. Caston develops a good rapport with a treatment professional, there is a reasonable prospect of success in controlling his offending behaviour.  Several witnesses, including Dr. Wang, stressed that a good rapport can lead to positive outcomes of psychotherapy.  Mr. Caston has shown an ability to develop good rapport as he has done so in the past with Dr. Johnson and with Dr. Thomas.  The defence also points to Dr. Thomas’ evidence in which, although referring to psychotherapy as a ‘closed door’ for Mr. Caston, did agree in cross-examination that it was possible that a different psychologist would have a better result.  There are also professionals who specialize with patients with a lower IQ (i.e. Dr. Lopes) who Mr. Caston could work with if given the opportunity.  He has not yet had that opportunity.  Finally, the defence points to the evidence of both Dr. Riar and Dr. Levy who acknowledged that Mr. Caston has shown some insight about his offending behaviour.  That insight, the defence submitted, is a foundation on which successful psychotherapy could be built.

[341]     I disagree with the inference that the defence asks me to draw from this evidence.  It does not stand up against the totality of the evidence.  Mr. Caston has had more than twenty years of psychological counselling and support from many professionals.  Two have reported having a good rapport with him.  Dr. Wang was skeptical about Mr. Caston’s ability to build rapport.  He offended during his time of seeing one of them, Dr. Thomas.  Dr. Thomas agreed that it may be possible that psychotherapy would work for Mr. Caston with another treatment professional.  I can only treat that ‘possibility’ as one in the order of ‘anything is possible’.  She remained clear that further psychological intervention was unlikely to be of any assistance in managing his level of risk.  I note and accept the evidence of Dr. Bowden and Dr. Levy who were both of the view that Mr. Caston was unlikely to receive any benefit from psychotherapy.  Dr. Levy opined that this was due to Mr. Caston’s inability to look introspectively.

[342]     I return again to the critical importance of his anti-social traits.  He lied to Dr. Wydra about turning himself in.  He was manipulative with Ms. Tobin by being deceitful with her and even using his hygiene to stay out of group therapy.  Dr. Riar has talked about how it is all a game to him.  In reviewing the evidence, I have attempted to include every positive aspect of Mr. Caston’s interaction with treatment and supervision professionals.  When the totality of those decades of treatment and supervision are added up, his positive efforts are infrequent and fleeting.

[343]     In light of the entirety of Mr. Caston’s history and his current functioning, it is wholly unreasonable to see a benefit to further psychotherapy.  If the only tangible gain that can be pointed to now is that he shows some insight at some points in time, then the counselling has been largely a failure.  And it is important to be specific as to why it has been a failure.

[344]     Mr. Caston has expressed his understanding of his offending to those who have treated him and in his relapse prevention plans.  It will be remembered that Ms. Tobin was impressed by his ability to articulate his offence cycle.  I am satisfied that this signals nothing more than the fact that he has heard what has been said about not re-offending.  He can, as he did with Ms. Tobin, assert his remorse without really having any.  He understands what he has been told, he simply chooses not to do what he has been told.  Dr. Thomas found that he did not follow her suggestions.  Dr. Riar says that he has not assimilated the information.  I find that that is a gentle way of conveying a hard truth:  Mr. Caston does what he wants when he wants.  And often he wants to offend.  As he said in his autobiography, “all the time I know I should not be doing it but I don’t care I’m getting what I want out of the boy sex!!!”  In 2016, he did not report what he was doing or feeling to those around him, including Dr. Thomas.  Instead he went to the library regularly ‘trolling’ for boys.  He refused in 2001 to clean himself in order that his hygiene prevented him having to go to the group that Ms. Tobin wanted him to attend.  He showed up drunk at a substance abuse management meeting.  None of this is an accident but rather the conscious choice of Mr. Caston.  I accept and rely upon Dr. Williams’ opinion that, despite his IQ scores, Mr. Caston is a ‘shrewd man in certain respects capable of adjusting his presentation somewhat to create a desired effect.’  Mr. Caston has shown his shrewdness in playing a game with psychotherapy for many years.  Psychotherapy has failed with Mr. Caston due to Mr. Caston’s actions.  There is no prospect that he will treat it any differently in the future.  That being the case, I am satisfied that psychotherapy will not protect the public while he is receiving it on any type of long-term supervision, nor would his risk be mitigated by the conclusion of such an order.

[345]     Finally is the need for supervision of Mr. Caston.  The defence notes that this is the first breach offence for which Mr. Caston has been convicted.  The defence also submits that Mr. Caston has been very good at reporting, as was testified to by Ms. Tobin.  Additionally, the parole board will fulfill their mandate by ensuring that the supervision Mr. Caston receives is sufficient to protect the community.

[346]     Again, I disagree with these suggested inferences.  One need only look at the supervision that was provided to Mr. Caston.  It was not good enough.  In the late 1980s, he was seen four days per week by the intensive management program.  That did not stop Mr. Caston from offending.  In the late 1990s, for more than four years, he was seen regularly by specialized probation services.  That did not stop him from offending in 2000.  The same was repeated after 2013 to the time of the predicate offence.  The case management plan simply could not have been, practically speaking, stricter.  I do not draw the inference that the federal parole supervision system would be as comprehensive as the one Mr. Caston had at the time of his February 2016 offence.  The problem is not just the quality of the supervision, it is Mr. Caston’s response to it.  He is dishonest in his response.  As Dr. Riar testified, ‘that dishonesty means it doesn’t matter what support you provide’.

[347]     On parole or on a long-term supervision order, Mr. Caston would likely reside at the residence that provided the most thorough supervision, Belkin House.  Yet the evidence is that supervision there is predicated on an honour system.  Mr. Caston, it can be said with certainty, will not respect an honour system.

[348]     Dr. Riar, when asked, spoke of the supervision that some young offenders get where there is a supervisor with them literally at all times.  It is easily understood why that service would be available for young persons who go out into the community.  There is no evidence that there is such a resource available for Mr. Caston.  Without such a resource, supervision simply cannot succeed in protecting the public from Mr. Caston.

[349]     Nor should I assume that the resources to provide that level of supervision might become available.  This issue was dealt with in R. v. Trevor, 2010 BCCA 331, where it was said (at paragraph 35):

[350]     In short, the supervision which Mr. Caston requires is one that, even if it were practical, is simply not available.

[351]     To summarize on the three-pronged approach put forward as the means of managing Mr. Caston in the community, I have concluded that each prong requires, to some extent, the honest, determined and consistent effort of Mr. Caston to not re-offend.  That effort has not existed.  It is also my conclusion that there is no reasonable expectation that it will exist in the time frame of a jail sentence followed by a long-term supervision order.

[352]      As was stated earlier, I am of the view that it is also necessary to view Mr. Caston’s future treatment prospects from a more comprehensive perspective.  In other words, it is necessary to examine the total picture of the appropriate sentence for Mr. Caston, not just the individual pieces of that picture.  In this regard, the British Columbia Court of Appeal, in R. v. Bragg, [2015] BCJ No. 2664 at paragraph 55, has stated the three elements that must be present “to achieve the goal of protecting the public regarding the reduction of the risk to an acceptable level:

[353]     Obviously, several experts, including Dr. Thomas and Dr. Riar, expressed a future treatment scenario for Mr. Caston.  Dr. Riar stated that there were circumstances where Mr. Caston could be managed in the community.  Was that evidence, taken together with the totality of the evidence, more than an expression of hope?  I find that it is not.

[354]     In concluding that, I appreciate that dedicated professionals look to a path of treatment for an individual.  It is the nature of their profession to always look for what might assist a patient to live in the community.  It is not their approach to give up hope.  Yet the guiding approach of Bragg is to recognize when there is no hope that vulnerable members of our communities can be adequately protected from Mr. Caston.  The evidence in this matter puts his successful management beyond hope.  I am satisfied that the prospect of his treatment and management is so tenuous as to be beyond hope.

[355]     The amount of time that has gone by in the treatment of Mr. Caston with little, if any, gain makes clear that any future treatment will not succeed in the time frame of a jail sentence and a long-term supervision order.  A word used repeatedly in connection with Mr. Caston’s behaviour is ‘entrenched’.  That word encapsulates that Mr. Caston’s behaviour will not change in response to treatment offered.

[356]     The evidence has been voluminous and thorough with respect to Mr. Caston’s treatability and management.  That evidence has set out the many issues that comprise his specific treatability issues.  Again and again, professionals have found their efforts thwarted by Mr. Caston’s deceptive and manipulative behaviour.  He simply does as he pleases.  Too often that is to satisfy his sexual urges.  He only conforms to what is required of him when it serves a goal he has in mind.  Recently, for example, he has taken medication in the expectation that doing so would defuse any dangerous offender designation.  It is because of that behaviour coupled with the totality of the circumstances that an indefinite period of incarceration is not only not grossly disproportionate but necessary.

[357]     On the basis of the totality of the evidence, I am not satisfied that there is any reasonable expectation that a lesser measure than detention in a penitentiary for an indeterminate period will adequately protect the public against the commission by Mr. Caston of a serious personal injury offence.

[358]     I am satisfied that the sentence on the count of sexual assault is detention in a penitentiary for an indeterminate period.

[359]     I am satisfied that the sentence on the breach of recognizance is one year in custody concurrent with the sentence on the count of sexual assault.

[360]     The defence, appropriately, concedes that the ancillary orders sought by the Crown should be made.  I agree.

[361]     Pursuant to s. 487.04(a), Mr. Caston is ordered to provide such sample of his DNA as is requested of him.

[362]     Pursuant to s. 490.012(1), Mr. Caston is to comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years.

[363]     Pursuant to s. 109 of the Criminal Code, Mr. Caston is prohibited from possessing any of the items referred to in that section for the rest of his life.

[364]     Pursuant to s.161 of the Criminal Code, Mr. Caston is prohibited for the rest of his life from: