[1]           The respondent, Skylar Wayne Pelletier (the “accused”), was born in Regina on November 21, 1999. He is Indigenous. He struggles with a variety of diagnosed mental health issues.

[2]           On August 14, 2017, the accused was found guilty of breaking and entering a dwelling house on September 14, 2016 for the purpose of committing sexual assault, contrary to s. 348(1)(d) of the Criminal Code of Canada (the “Code”), and committing sexual assault on September 14, 2016, contrary to s. 271 of the Code (the “predicate offences”).

[3]           He was 16 years old at the time he committed the predicate offences.

[4]           Reasons for Judgment are indexed at R. v. S.W.P., 2017 BCPC 234 (CanLII).

[5]           Following conviction, but prior to sentence, the applicant (the “Crown”) applied to have the accused sentenced to an adult sentence pursuant to s. 64(1) of the Youth Criminal Justice Act (the “YCJA”).

[6]           On March 29, 2018, the court ordered that the accused was to be sentenced to an adult sentence.

[7]           Reasons for the ruling are indexed at R. v. S.W.P., 2018 BCPC 71 (CanLII).

[8]           On April 18, 2019, the Crown filed notice of its intention to have the court designate the accused to be a dangerous offender pursuant to Part XXIV of the Code.

[9]           The Supreme Court of Canada (the “SCC”) has confirmed that dangerous offender proceedings form part of the sentencing process: R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229 at pp. 279-280. The SCC has also confirmed that when interpreting the dangerous offender provisions, the court must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 - 718.2 of the Code: R. v. Johnson, 2003 SCC 46 (CanLII) at para. 23.

[10]        At their root, the dangerous offender provisions are preventative sanctions. The protection of the public must ultimately be at the forefront of a court decision to declare or not declare an offender as a dangerous offender: R. v. Sipo, 2014 SCC 47 (CanLII).

[11]        An offender cannot be designated as a dangerous offender unless a court concludes, after an assessment of prospective risk, that the offender is a future “threat”. This future risk assessment requires a consideration of future treatment prospects: R. v. Boutilier, 2017 SCC 64 (CanLII) at para. 23.

[12]        In the leading case of R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at 338, the SCC read the objective element of the designation - the requirement that the predicate offence be a “serious personal injury offence” - together with the subjective element - the “threat” assessment - and concluded there were four criteria explicit from the language of s. 753(1): (1) the offender has been convicted of, and has been sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable.

[13]        The SCC in Boutilier, supra, at para. 27 defined “intractable” conduct as meaning behaviour that an offender is unable to surmount.

[14]        Additionally, for an offender to be declared dangerous and then to be penalized with the extreme form of a preventative sentence, the offender “must pose a future threat to public safety”: ibid at para. 34.

[15]        Determining whether or not a high risk of recidivism and intractability is present necessarily involves a prospective inquiry into whether the offender will continue to be “a real and present danger to life or limb”: ibid at para. 35.

[16]        The second category of dangerousness based on sexual conduct, under s. 753(1)(b), reinforces the conclusion that s. 753(1)(a) mandates a prospective assessment. This category requires, in addition to evidence of a pattern of past conduct, an independent assessment of future risk: ibid at para. 38.

[17]        Evidence of future treatment prospects must be considered at both the designation stage and penalty stage of dangerous offender proceedings.

[18]        The Crown and the accused “must” present any prospective evidence concerning risk, intractability, or treatment programs, including the required assessment report pursuant to s. 752.1 addressing prospective treatment options. Many aspects of clinical evaluations provide evidence going to both the assessment of the offender’s future risk and the penalty necessary to manage this risk: ibid at para. 44.

[19]        The concluding remarks of the SCC in Boutilier, supra, at para. 46 are apposite to this hearing:

[20]        The conduct to be considered in determining whether the Crown has proven beyond a reasonable doubt that an offender poses a future danger to society is conduct in “any sexual matter”. Offences that are not “sexual” cannot be considered in assessing whether the Crown has proven the criteria under s. 753(1)(b) of the Code.

[21]        The determination as to whether there is a likelihood that an offender will commit future harm through a failure to control sexual impulses must be made with reference to his “present condition according to past behaviour and patterns of conduct”: ibid at para. 26.

[22]        A core issue in this case turns on the principle of restraint enunciated in subparas. (d) and (e) of s. 718.2 of the Code, which provide as follows:

[23]        The joint impact of these principles is that a sentencing judge must consider the possibility that a less restrictive sanction could attain the same sentencing objectives that a more restrictive sanction would attain.

[24]        Specific principles contained in s. 3(1) of the YCJA apply to young persons. This includes the principle that a young person’s moral blameworthiness is diminished:

[25]        In R. v. B. (D.), 2008 SCC 25, the SCC addressed the validity of the “presumptive offence” provisions of the YCJA. Writing for the majority, Abella J. made the following observation:

[26]        The court also observed that young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. The court went on to note:

[27]        The Alberta Court of Appeal in R. v. Neve, 1999 ABCA 206 at para. 259, commented on the interaction of the dangerous offender provisions of the Code and the Young Offenders Act (“YOA”), R.S.C. 1985, c. Y-1 (replaced by the YCJA in 2003).

[28]        The Court found that the dangerous offender provisions of the Code did not trump the provisions of the YOA and, in particular, that the YOA specifically emphasized that the principle of rehabilitation was to be taken into account in sentencing of a Young Person.

[29]        As noted at para. 24 of this ruling, s. 3(1)(b)(i) of the YCJA places an emphasis on rehabilitation and reintegration. Following the reasoning of the Court of Appeal in Neve, I find that it is necessary to exercise caution when placing weight on the accused’s prior behaviour, including weight that would attach to his prior youth criminal record in dangerous offender proceedings.

[30]        The accused was 16 years old at the time he committed the predicate offences.

[31]        The dangerous offender scheme is designed as a “two-stage” process. The first stage is the designation stage.

[32]        The statutory provisions that are relevant to the designation stage in this case are found in s. 753 of the Code:

[33]        The second stage of the process is characterized as the “penalty stage”. The statutory provisions that are relevant to the penalty stage in this case are also found in s. 753 of the Code:

[34]        Section 753(1) contemplates two categories of dangerousness: (a) dangerousness resulting from violent behaviour, and (b) dangerousness resulting from sexual behaviour.

[35]        The Crown is applying under s. 753(1)(a)(i) and (ii) and (b), seeking a designation that the accused is a dangerous offender due to his sexual behaviour. Both subsections require that the Crown must establish beyond a reasonable doubt that one or both of the predicate offences are serious personal injury offences as defined by s. 752 of the Code.

[36]        The accused has admitted that the predicate offences are serious personal injury offences.

[37]        The purpose of an LTSO is twofold: (1) to protect the public, and (2) to rehabilitate and reintegrate offenders back into the community. Further, the intention behind the legislative scheme was to create a mechanism which would be speedy and flexible and which would not result in lengthy re-incarceration of offenders in the absence of a new crime being committed: R. v. Ipeelee, 2012 SCC (CanLII) 45 at para. 54.

[38]        The supervision period in an LTSO is not intended to be penal, but rather to accomplish the goal of preventing future crimes: R. v. R.(J.W.), 2010 BCCA 66 (CanLII) at para. 43.

[39]        By operation of ss. 134 and 134.1 of the Corrections and Conditional Release Act (“CCRA”), an offender is subject to conditions that are imposed by the National Parole Board (“NPB”), as well as being subject to instructions imposed by a Community Parole Officer (“CPO”). The NPB may set or cancel conditions. In other words, once an offender’s sentence has expired, he or she is essentially on parole. As such, “an order of this nature is a drastic interference with the liberty of the subject”: R. v. Norman, 2015 ONSC 2735 (CanLII), applied R. v. Davidson, 2015 BCPC 335 (CanLII), 2015 BCPC 0335.

[40]        While the NPB will not impose a supervision condition requiring that an offender take a specific type of medication, the NPB can require an offender to follow psychiatric counselling, which may include a prescription of a specific type of medication: Davidson, ibid at para. 57.

[41]        If the offender refuses to take prescribed medication, then the NPB can view that failure as a potential breach. Under s. 135.1 of the CCRA, the NPB can then suspend the order, authorize the apprehension of the offender, and commit the offender to a community-based residential facility or into custody until the suspension is cancelled or new conditions have been imposed. The period of the commitment must not exceed 90 days: ibid at para. 58.

[42]        The opinions of psychiatrists concerning treatability and risk to reoffend play a significant role in dangerous offender proceedings. In R. v. Pike, 2010 BCCA 401 (CanLII) at paras. 61 and 63, the Court of Appeal described the role of psychiatric evidence as “vital” in dangerous offender proceedings.

[43]        At para. 64 of Pike, the Court of Appeal, citing R. v. Neve, supra, listed the following non-exhaustive factors to be considered in assessing the weight to be given to psychiatric evidence:

[44]        In the court’s reasons for Ruling on Application, supra, to have the accused sentenced to an adult sentence, the court provided an overview of the predicate offences, which is reproduced here to give context to these proceedings:

[45]        The accused was the only resident at a specialized residence, Sherbrooke House, located in Vancouver, where he was being supervised 24/7. After approximately 3 weeks at this residence, he took advantage of an opportunity to sneak out and commit the predicate offences.

[46]        On July 22, 2016, the accused pled guilty to 4 separate offences, including:

[47]        The accused received a global sentence of an Intensive Support and Supervision Order (“ISSP”) that expired on November 21, 2018, and a 6 month Deferred Custody and Supervision Order (“DCSO”). The DCSO required 24/7 supervision.

[48]        The accused has also pled guilty to two assault charges relating to incidents on July 22, 2017 and November 13, 2017 at the Burnaby Youth Correction Centre (“BYCC”). In the July 2017 incident, he became involved in a physical altercation with another inmate. In the November 2017 incident, he hit a guard multiple times with a closed fist when he was told to return to his room after calling the guard a “goof”.

[49]        The accused is to be sentenced on the two outstanding assault charges following the ruling in these proceedings.

[50]        The accused’s behaviour while in custody at the BYCC for the predicate offences has been problematic for him.

[51]        Tonje Olson, Psychiatric Social Worker, in her report dated October 12, 2017 [Exh. 2, Tab 21], reports that the accused has been involved in 130 reported incidents which included “immature posturing… physical violence… intimidation… sexualized behaviour… public masturbation… and an inability to control his sexual impulses”.

[52]        His sexually inappropriate behaviours reached such a level that a decision was made to limit his contact with female staff and volunteers at the BYCC.

[53]        The accused was involved in a lengthy counselling relationship with Dr. Bodnarchuk. Three days after the accused ended that counselling relationship, he was found with marijuana and matches in his room at the BYCC. In August of 2017, the frequency of the accused’s sexualized behaviour increased to ten incidents over the course of that month: ibid.

[54]        On the day the accused was found guilty of committing the predicate offences, when he was being returned to the BYCC by a female Sheriff, she reported that when she opened the wagon door, she observed him masturbating.

[55]        A further incident occurred in the summer of 2017, when the accused and a female youth inmate were attending a professional visit at the BYCC. It was reported that the accused was sent back to his room, but about one hour later it was discovered that the accused had hidden in a hallway out of camera view, apparently waiting for the female youth inmate. On another occasion, the accused hid in a female youth inmate’s room while she was out of her room and staff were preoccupied: ibid.

[56]        Largely as a result of the accused’s inability to control his sexual impulses, the Provincial Director of Corrections applied to have the accused transferred from the BYCC to the North Fraser Regional Correction Centre (“NFRCC”). The application was granted on February 16, 2018 by Bahen P.C.J.

[57]        After the accused was transferred to NFRCC, the number of reported incidents decreased dramatically. He was involved with another inmate in a fight over food on March 19, 2018.

[58]        More importantly, there appear to be no reported incidents of inappropriate sexual behaviours.

[59]        The accused’s response to community supervision as a youth was problematic.

[60]        In particular, he committed the predicate offences when he was a resident of Sherbrooke House, a specialized residence specifically designed to address the accused’s impulsive behaviours.

[61]        Dr. Bodnarchuk is a clinical psychologist. He provided counselling and treatment to the accused from 2016 through 2018. He prepared several reports that were filed in these proceedings.

[62]        He was qualified to give expert opinion evidence in the area of clinical psychology and to provide opinion evidence relating to the accused’s risk and treatment suitability.

[63]        He testified that the accused displayed personality traits that would need to be addressed. Those traits included:

[64]        His formal treatment of the accused commenced on August 3, 2016. Between September of 2016 and October of 2017, the accused participated in 27 sex offender treatment sessions with Dr. Bodnarchuk.

[65]        Dr. Bodnarchuk testified that the accused’s response to sex offender treatment was sporadic: Transcript, April 23, 2019, p. 13, ll. 9-44.

[66]        He testified that the accused was taking prescribed medication at the time he was receiving sex offender treatment from Dr. Bodnarchuk, including:

[67]        In June of 2016, Dr. Bodnarchuk utilized an actuarial tool called Estimate of Risk Adolescent Sex Offence Recidivism 2 (“ERASOR 2”) to determine the accused’s risk to reoffend. The test is valid for two years.

[68]        It was his opinion that the accused was at a moderate risk to reoffend if efforts were not made to manage this risk: ibid at p. 15, ll. 1-33.

[69]        In relation to treatment, Dr. Bodnarchuk opined:

[70]        He was also of the opinion that the accused would benefit from group sex offender treatment therapy.

[71]        Dr. Paul Janke is a forensic psychiatrist. He was qualified to provide opinion evidence in the areas of the accused’s risk for recidivism, including sexual and violent recidivism; his treatability; recommendations for his treatment; and strategies for his management in the community.

[72]        Dr. Janke met with the accused on three occasions for a total of just under three hours. As well, he reviewed various reports of other clinicians who were involved in the assessment and treatment of the accused.

[73]        He prepared a Psychiatry Report dated October 24, 2017 [Exh. 2, tab 23].

[74]        In both his testimony and in his Psychiatry Report, he was of the opinion that the accused had a prior diagnosis of obsessive compulsive disorder that was in remission as a result of the accused taking prescribed medication.

[75]        In addition, he was of the opinion that the accused easily meets the criteria for paraphilia, not otherwise specified.

[76]        He also testified that at the time he completed his Psychiatry Report, a diagnosis of specific arousal to rape was not available in the diagnostic manual, though experts who assess and treat individuals who commit sexual offences agree that specific arousal to non-consensual sexual activity can occur: Psychiatry Report at p. 8.

[77]        He expressed concern that while the accused’s sexual offending behaviours had not involved penetration, if the accused’s behaviour is not checked, it could result in an escalating pattern of more aggressive sexualized behaviour: ibid at p. 8 and 9.

[78]        He described the accused as an individual with:

[79]        He testified that he would place the accused in the high-risk category to reoffend, and that his inappropriate sexual behaviour was more likely than not to increase over the next 10 or even 15 years before he might experience a radical reduction in sexual drive and interest: Transcript, supra p.26, ll. 39-47.

[80]        From a treatment perspective, it was his opinion that the Provincial Correction system had only limited programming that was not specific enough to address the needs of the accused.

[81]        It was his understanding that the Federal Correction system would be more appropriate, as the accused would have access to intensive programming specifically designed to address his deviant sexual arousal: ibid at p. 9.

[82]        It is noteworthy that Dr. Janke contemplated the future reintegration of the accused into the community, but with strict supervision:

[83]        Dr. Su is a psychologist. She conducted a psychological assessment of the accused for use in the hearing to determine if the accused should be sentenced as an adult. Her psychological report was filed in these proceedings [Exh. 5].

[84]        The accused was assessed in September 2017 by Dr. Su at the Inpatient Assessment Unit of the Youth Forensic Psychiatric Services.

[85]        Dr. Su noted that the accused was first admitted to the BYCC in March 2016. From her review of BYCC records, Dr. Su noted that the accused frequently instigated acts of physical and verbal aggression with other youths.

[86]        The accused readily acknowledged that he did get into fights with other youths because he viewed himself to be a “top dog”.

[87]        The accused told Dr. Su that he first came into contact with pornography when he was nine years old. He reported that shortly afterwards he began to masturbate to ejaculation thinking about pornography. His principal fantasy involved heterosexual sex with females of his age or older.

[88]        He reported to Dr. Su that the indecent act offences that occurred prior to his commission of the predicate offences were impulsive acts.

[89]        He admitted that he committed the predicate offences after he became sexually aroused when he observed L.A. standing at a window of her residence when he was looking out of a window at Sherbrooke House.

[90]        He admitted slipping away from his residence on the night before the commission of the predicate offences and was surprised when he found the back door to L.A.’s residence to be unlocked. He went into the residence for a brief period of time, decided that it was not right, and left.

[91]        He acknowledged the urge to return to L.A.’s residence the following evening. When he managed to sneak away from his residence he was surprised when he again found the back door unlocked. Faced with this opportunity he felt himself “… ruminating on the possibility that he could get away with this plan if he was quiet enough and not make noise”: ibid at p. 8.

[92]        Dr. Su performed psychological tests to confirm the accused’s Full Scale IQ. It was her opinion that his intellectual ability was in the borderline range of 76. It was also part of her conclusion that, based on current psychological testing, the accused was of “borderline intelligence”: ibid at pp. 11 and 13.

[93]        In evaluating the accused’s risk to reoffend, Dr. Su opined that the risk would be high “… if no efforts are made to manage his risks” (emphasis added): ibid at p. 13.

[94]        In relation to treatment and management of the accused, Dr. Su, in part, was of the opinion that the accused would require long-term therapy, including a requirement that he receive consistent supervision and external controls on his behaviours, which could be provided through a custodial setting: ibid at p. 16.

[95]        Dr. Su recommended that in light of the accused’s low intellectual abilities, he would require specialized treatment programs specific to his cognitive limitations. In addition, given his Indigenous status, he may be more receptive to therapeutic interventions using culturally specific treatment approaches available within a custodial setting: ibid.

[96]        Dr. Su also recommended that when the accused is returned to the community, he should have intensive supervision over a long period of time, as well as comprehensive and culturally specific treatment: ibid.

[97]        Dr. Tomita is a forensic psychiatrist. Pursuant to an order under s. 752.1 of the Code, he conducted a psychiatric assessment of the accused, including a risk assessment. His findings are contained in his Assessment Report dated June 26, 2018: [Exh. 11].

[98]        He was qualified to provide opinion evidence in the area of clinical and forensic psychiatry, including the accused’s risk of recidivism, his treatability, recommendations for his treatment, and strategies for managing him in the community.

[99]        In preparing his report, and in preparation for testifying at this hearing, Dr. Tomita reviewed all of the materials filed as exhibits at this hearing. He also interviewed the accused.

[100]     At the beginning of his report, Dr. Tomita noted that there were several factors that should be kept in mind, including the relatively young age of the accused and the fact that he has never received sex offender treatment in the Provincial or Federal Correction systems: Assessment Report at para. 10.

[101]     In his report, Dr. Tomita gave the following opinions in relation to the accused’s future risk of reoffending:

[102]     Dr. Tomita utilized three different risk assessment tools with the accused including the Psychopathy Checklist-Revised (PCL-R), the Risk for Sexual Violence Protocol (RSVP), and the Historical Clinical Risk-20 Version 3 (HCR 20 version 3), a tool designed to look at the risk of general violence, not specifically sexual violence.

[103]     He testified that the PCL-R measures the personality profile of psychopathy, but has also been found to be of assistance when predicting risk for an offender.

[104]     He concluded that the accused has the following markers of psychopathy: callousness/lack of empathy, poor behavioural controls, and juvenile delinquency. It was Dr. Tomita’s opinion that the accused would fall at the border between low and moderate levels of psychopathic personality traits.

[105]     Applying the RSVP tool, Dr. Tomita opined (Assessment Report, para. 134):

[106]     He testified that the accused’s risk of future sexual violence is a product of paraphilia, coupled with mild intellectual disability and sexual immaturity.

[107]     He stated, in part, in his report:

[108]     Dr. Tomita concluded, in part, that the RSVP test results establish that it is “… difficult to conclude that he is higher than a moderate risk, but his escalation scenario is the most concerning scenario”: ibid at para. 135.

[109]     Dr. Tomita reported that the accused has been diagnosed with a number of psychiatric disabilities including mild intellectual disability, unspecified schizophrenia spectrum disorder with a historical diagnosis of schizophrenia, exhibitionistic disorder, frotteuristic disorder, and childhood attention deficit hyperactivity disorder: Assessment Report at p. 14.

[110]     Dr. Tomita testified that if the accused in fact has schizophrenia, the symptoms should present within the next five years; this would simply add a further burden for the accused: Transcript, April 24, 2019, at p. 13, ll. 33-47.

[111]     Dr. Tomita testified that exhibitionistic disorder and frotteuristic disorder paraphilias are chronic in nature. He described the accused as an individual who acts on his impulses, which are driven by these disorders. If he does not learn to manage them, he will continue to commit sexual offences: ibid at p. 14, ll. 21-45 and p. 18, ll. 2-8.

[112]     Dr. Tomita testified that, in his opinion, the accused committed the predicate offences due to his inability to control his sexual impulses: ibid at p. 17, ll. 19-25 and p. 39, ll. 40-45.

[113]     He testified that, in his opinion, the accused was clearly motivated by and was intent on sexual gratification: ibid at p. 41, ll. 1-10.

[114]     He also testified that the accused was able to recall and reconstruct what was happening to him at the time that he committed the predicate offences. The accused also admitted that he became sexually aroused by the thought of breaking into the house where the predicate offences took place, and that this sexual urge preceded the offences: ibid at p. 58, ll.39-45.

[115]     While the accused’s commission of the predicate offences did not involve sexual penetration, Dr. Tomita was of the opinion that there remained a likelihood of progression by the accused to more intrusive forms of sexual offending, including rape: ibid at p. 20, ll. 11-33 and p. 22, ll. 20-21.

[116]     Dr. Tomita testified that, in his opinion, an individual’s lack of insight into his offending behaviour can be addressed by appropriate treatment, if the individual accepts the treatment. He expressed concern over whether or not the accused would accept treatment: ibid p. 69, ll. 16-20.

[117]     It remained a live concern to Dr. Tomita as to whether or not the accused would be responsive to treatment. If the accused was not prepared to undergo treatment, then his risk to reoffend would increase.

[118]     The accused reported to Dr. Tomita that he told his treating psychologist, Dr. Bodnarchuk, that the treatment he received helped him learn that “not everything” was about sex.

[119]     Dr. Tomita reported that from his review of Dr. Bodnarchuk’s clinical records relating to the accused, the results of the treatment received by the accused appeared “mixed”: Assessment Report at para. 68.

[120]     Dr. Tomita reported that it was Dr. Bodnarchuk’s impression that the accused withdrew from further treatment due to a lack of motivation: ibid at para. 70.

[121]     Dr. Tomita reported that the accused lacked an established network of peers, either prosocial or antisocial. The only people in his social network appear to be his family and professional supports: ibid at para. 20.

[122]     Dr. Tomita was asked if he had any concerns with respect to the accused’s parents supporting a treatment program specific to the accused’s needs:

[123]     Dr. Tomita also reported that, in his opinion, the accused had problems with his ability to adaptively function in the community, and that he avoided close interpersonal relationships to avoid rejection, thus keeping some strong feelings to himself: ibid at paras. 28 and 29.

[124]     Dr. Tomita testified that, in his opinion, the accused was treatable. He would require the high intensity sexual offender treatment that is available in the Federal Correction system. He would likely be required to complete a sex offender maintenance program in custody, and a further sex offender maintenance program in the community while on parole: Transcript, supra p. 29, l. 47 and p. 30, ll. 1-27.

[125]     Further, if the accused was involved in other kinds of treatment, such as taking sex-drive-reducing medication, then he would need to be medically monitored. Dr. Tomita opined that “… anti-androgens, given his level of risk and the severity of his conditions, are the medications to treat his paraphilias”: ibid p.44, ll. 12-15.

[126]     Dr. Tomita testified that, in his opinion, the treatment needs for the accused would take years rather than months. The planning of a treatment program specific to the accused should also involve an investigation of his potential for a future schizophrenia diagnosis: ibid p. 30, ll. 5-30.

[127]     To meet the treatment needs of the accused, Dr. Tomita recommended that a “cautious approach”, in which the accused is placed under legal supervision for as long as possible, would give the accused the best chance of future success, and would be the best approach for containment of the risk he presents: ibid p. 35, ll. 23-37.

[128]     Mr. Devlin was one of the accused’s Youth Probation Officers. He was involved with the accused for several years when he was incarcerated at the BYCC until the accused was transferred to the NFRCC in February, 2018.

[129]     He testified that, according to the accused’s client logs, the accused was involved in 130 incidents during his stay at the BYCC: Transcript, April 26, 2019, p. 56, ll. 21-36.

[130]     A number of these incidents were sexual in nature, and were ultimately the reason why the accused was transferred to the NFRCC: Reasons for Judgment of Judge Bahen, February 16, 2018, [Exh. 1, Tab 4].

[131]     Ms. Dunbar is the Assistant Warden at the NFRCC. She described the different categories for the classification of inmates at the NFRCC: general population inmates, protective custody inmates and enhanced supervision (“ESP”) inmates. She testified that the accused spent a considerable amount of time in the ESP category.

[132]     She also reviewed various client logs relating to the accused. She testified that the accused was involved in several reported incidents at the NFRCC.

[133]     Ms. McKenzie was a Parole Officer with CSC for six years before becoming the Regional Manager of the Conditional Release Program for the Pacific Region.

[134]     She gave evidence concerning the parole process and the powers of both the Parole Board and Parole Officers within the parole process. She testified that there is a significant onus on a parolee to abide by conditions of release.

[135]     She testified that if there is a recommendation for an offender to take anti-androgen medication, he would have to consent to take the medication, and thereafter he would have to be monitored. This would require him to consent to disclosure of his medical records: Transcript, April 26, 2019, p. 90, ll. 1-3.

[136]     Ms. McKenzie testified that when an offender such as the accused is released on parole, he would be required to participate in a sex offender treatment program, with the objective being to learn the requisite skills to self-manage once he has re-integrated into the community.

[137]     Ms. Goldstone is the Regional Manager of programs for the CSC.

[138]     She described the sex offender treatment programs that are available in the Federal Correction system. These programs can include an Indigenous focus.

[139]     She described the intake procedure for the sex offender programs that are provided within a federal institution. One of the goals of the sex offender programs is to teach the offender the necessary skills to self-manage once that individual is released back into the community.

[140]     She testified that the accused, if sentenced to a federal sentence, would likely be placed into a formal Sex Offender Program, which does have an adaptive stream that could address the specific challenges posed by the accused’s intellectual deficits.

[141]     A Gladue Report was prepared for this hearing [Exh. 10].

[142]     James Perrin, the author of the report, reported that the accused lived on reserve at the Ocean Man First Nations Reserve in Saskatchewan until he was five years old.

[143]     Mr. Perrin, in reviewing the accused’s social and Aboriginal history, reported:

[144]     Mr. Perrin reported that a number of the adverse factors affecting Indigenous people were present in the accused’s personal life, including:

[145]     Mr. Perrin also reported that the accused actively participated in various alternative education programs designed for Indigenous youth from the ages of 13 to 15. The accused indicated to Mr. Perrin that he was very interested in furthering his education, including an Indigenous component: ibid at p. 3.

[146]     The accused also told Mr. Perrin that he understood that he needed to address his mental health, and that he accepted the need to do so regardless of the outcome of these proceedings: ibid at p. 6.

[147]     The victim of the accused’s sexual assault, L.A., and her daughter-in-law, K.A., both filed Victim Impact Statements in June 2017 (“VIS”): [Exh. 3].

[148]     L.A. described, in part, that she feared being alone and experienced paranoia. At times she suffered from panic attacks and had trouble sleeping.

[149]     She was fearful and did not want to be left alone. She expressed being scared that when the accused was released from prison, he might take revenge against her family, as he knows where they live.

[150]     As a result of the sexual assault, she participated in 10 therapy sessions at a cost of $900. She also had to take some time off work, and lost $900 in wages.

[151]     K.A. described, in part, that after the incident she no longer felt safe in her home. She experienced occasional nightmares in which a person entered the family home when she was alone with her newborn baby.

[152]     She also feared that the accused would return to her residence to take revenge.

[153]     As a result of the incident with the accused, she experienced loss and damage, including lost wages, in the approximate sum of $2,500.

[154]     On behalf of the accused’s parents, his mother submitted a five-page letter in which she details the accused’s life from the time he was born until the present.

[155]     The submission of the parents is deeply personal. I do not believe it is necessary to describe it in detail here. Some general observations will suffice.

[156]     The accused is the middle child of five. His parents have been together for over 25 years. They clearly love and are devoted to all of their children.

[157]     From the time the accused was born until the present, he has experienced many difficulties, including many medical issues and hospital admissions, age-delay deficits, being bullied at school, receiving an ADHD diagnosis at the age of four, being hit by a car when he was riding his bicycle, and intergenerational impacts arising from his Indigenous heritage.

[158]     Despite those trials and tribulations, he still managed to excel in team sports, in particular basketball and soccer, and enjoyed outdoor activities such as skiing and snowboarding.

[159]     His parents are clearly devoted to their son, and stand ready as a resource for him in the community when he is permitted to join society outside of a custodial setting.

[160]     It is the opinion of his parents that “with supports and groups, structure set up a comfortable environment [the accused] can lead a happy healthy life, be able to enjoy his young life. Please give him that chance”.

[161]     The Crown submitted that the evidence establishes beyond a reasonable doubt that the accused “must be declared a dangerous offender” pursuant to ss. 753(1)(a)(i) and (ii) and (b) of the Code.

[162]     In its Written Submissions at para. 173, the Crown summarized what it submitted was the pertinent evidence in relation to a finding of dangerousness. This included evidence that the accused was motivated by sexual fantasies, found opportunities to engage in inappropriate sexual behaviour, and failed to control his impulses and his behaviour. Of further concern is the fact that the female victims were all strangers that he watched for a period of time before committing his offences. The Crown argues that the offences committed by the accused constitute a pattern of repetitive behaviour.

[163]     The Crown also relied on the evidence of Dr. Tomita, who opined that there was a high risk of the accused committing exhibitionism and/or frotteurism in the future, and that such offences could inflict psychological damage on the victims, as evidenced by the victim impact statements of L.A. and K.A. Dr. Tomita concluded that there was a moderate risk of more serious sexual violence in the future.

[164]     The Crown argues that the opinions of the psychiatrists and psychologists establish a likelihood that the accused will fail in the future to control his sexual impulses, and that this failure will likely cause psychological harm to others.

[165]     The Crown submitted that the court ought to give significant weight to the opinion of Dr. Tomita that due to the young age of the accused and the unpredictability of his future behaviour, his treatment needs would require a federal custodial sentence.

[166]     In its Written Submission with respect to the s. 753(4.1) of the Code analysis, the Crown proposed:

[167]     In the event the accused is not found to be a dangerous offender, the Crown submitted that, pursuant to s. 753(5) of the Code, the evidence led by the Crown at this hearing was more than ample to justify a designation that the accused is a long-term offender, and that he be subject to a 10-year LTSO.

[168]     The Crown submitted that a 4-year penitentiary sentence would be appropriate for the accused if he was to receive a determinate sentence. That sentence should be followed by the imposition of a 10-year LTSO.

[169]     The Crown identified the following aggravating factors pertaining to the accused’s commission of the predicate offences:

[170]     Regarding credit for time in custody, the Crown submitted that the Court ought not to give enhanced credit for the time the accused has been in custody, as it would potentially put the public at risk.

[171]     As of this date, the accused has not received appropriate treatment specific to his needs. The goal of public protection would be best met by ensuring that the sentence for the accused would place him in the federal correctional system where his specific treatment needs could be addressed.

[172]     The accused submitted that the evidence fell short in establishing beyond a reasonable doubt that the accused ought to be designated as a dangerous offender.

[173]     The accused relied heavily on the British Columbia Court of Appeal (“BCCA”) decision in R. v. Walsh, 2017 BCCA 195, to justify his position.

[174]     The accused submitted that the BCCA in Walsh established that the dangerous offender legislation was only intended to capture “… a relatively small number of offenders, most of whom have committed a relatively large number of very serious offences, and whose actions show strong evidence of a pattern that is likely to continue”: ibid at para. 18. The accused says that he does not fall into that category.

[175]     The accused submitted that his conduct falls short of being “highly dangerous” or falling “… at or near the extreme end”: ibid.

[176]     The submissions of the accused on this issue can be summarized as follows:

[177]     The accused submitted that the Crown’s analysis of the similarities between the predicate offences and the accused’s prior offences [Crown Written Submissions at para. 173] was based more on an analysis of similar fact evidence rather than actual similarities. This approach was described as “not helpful” in Walsh: supra at para. 46.

[178]     The accused submitted that his commission of the predicate offences was completely different in nature from his prior offences.

[179]     The predicate offences involved a break and enter into private property, while his prior sexual offences involved voyeurism, exhibitionism and frotteurism, committed in relatively public spaces and ending almost immediately when the victim protested.

[180]     The accused submitted that the Crown has failed to prove beyond a reasonable doubt that he has shown a failure to control his sexual impulses.

[181]     Dr. Tomita testified that there were no incidents of exhibitionism, frotteurism or voyeurism when the accused was transferred to NFRCC: Transcript, April 25, 2019, at p. 2, ll. 34-39.

[182]     Dr. Tomita formed the opinion that the accused wanted to avoid being labelled as a “skinner” at NFRCC: ibid at p. 3, ll. 17-23.

[183]     Dr. Tomita agreed with the suggestion of the accused that he has the ability to control his impulses if motivated to do so: ibid at ll. 27-32.

[184]     The accused submitted that his ability to control his impulses to avoid being labelled a “skinner” is an example of him being able to control his impulses if he is properly motivated.

[185]     The accused submitted that the court should recognize his diminished moral culpability when determining an appropriate sentence. This diminished responsibility arises from the following factors:

[186]     The accused submitted that a time served sentence ought to be imposed, because his time in custody since the commission of the predicate offences is more than enough to meet the principles of general and specific deterrence.

[187]     He submitted that since he was transferred to NFRCC, his inappropriate sexual behaviours have ceased. This demonstrates his ability to control his behaviour. His parents stand ready to have their son return to live with them. Additionally, appropriate treatment needs specific to the accused could be met through the fashioning of a lengthy probation order.

[188]     The accused submitted that his submissions opposing a dangerous offender designation apply equally to his opposition to the imposition of a LTSO.

[189]     Both subsection (a)(i) and (ii) of s. 753(1) of the Code require that the Crown must establish a “pattern of behaviour” - either “repetitive” or “persistent aggressive”. The term “pattern” has been subject to appellate judicial consideration.

[190]     In R. v. Dow, 1999 BCCA 177 (CanLII), 1999 BCCA 0177, the BCCA noted:

[191]     The elements of a “pattern”, as articulated in Dow, were applied by the BCCA in Walsh, supra. Bennett J.A. summarized the Dow analysis as follows:

[192]     In R. v. Cook, 2010 MBQB 237 (CanLII), 2010 CarswellMan 622 (Man. Q.B.) Duval J. considered the relevance of a prior criminal record when determining whether there is a “pattern” in a dangerous offender proceeding. The court adopted the approach taken by the Alberta Court of Appeal in R. v. N. (L.), 1999 ABCA 206, noting at para. 43:

[193]     In addition to establishing a “pattern”, the Crown must also establish, in the case of ss. (i), that the pattern demonstrates a “likelihood of causing death or injury to other persons, or inflicting severe psychological damage through failure by the offender, in the future, to restrain his or her behaviour: R. v. Pascal, 2013 SKQB 447 at para. 83, affirmed on appeal, 2016 SKCA 152.

[194]     In the case of ss. (ii), the Crown must not only establish a “pattern”, but it must also establish that the offender’s persistent aggressive behaviour demonstrates a “substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of that behaviour”: ibid.

[195]     I have already noted the criminal record of the accused, and the circumstances surrounding his criminal record. I would describe the criminal record of the accused to be relatively short and not involving very serious offences.

[196]     The accused’s commission of the predicate offences was sexually motivated, but otherwise dissimilar to his prior convictions for indecent acts. The predicate offences involved planning and deliberation, whereas the prior indecent acts were essentially opportunistic offences. The prior indecent acts involved exhibitionism and frotteurism, which I find would be consistent with the accused’s diagnosis of immature sexual behaviour, and inconsistent with intractable sexual behaviour.

[197]     In Pascal, supra, at para. 89, in the context of the establishment of a “pattern” of repetitive behaviour or persistent behaviour, the young age (18) of Mr. Pascal was a critical feature:

[198]     At para. 15 of the appeal decision, supra, the Court of Appeal made specific reference to para. 89 of the trial ruling and commented, in part, “… the fact of Mr. Pascal’s young age was central to the trial Judge’s rejection of the Crown’s application for a DO designation”.

[199]     Dr. Tomita was the court-appointed assessor. I am required to give deference to his opinions and conclusions: R. v. Badger, 2012 SKCA 119.

[200]     As previously noted, Dr. Tomita completed three different risk assessment tools with the accused. I find the risk assessment tools reliably establish that the most likely future risk scenario of sexual violence by the accused would include exhibitionism, voyeurism and frotteurism.

[201]     In relation to ss. (i), I find that the Crown has not proven beyond a reasonable doubt that the evidence establishes that the accused’s conduct, in the future, will likely cause death or injury to other persons or inflict severe psychological damage to other persons through a failure to restrain his behaviour.

[202]     In relation to ss. (ii), I find that the Crown has not proven beyond a reasonable doubt that the evidence establishes that the accused’s conduct amounts to a “pattern of persistent aggressive behaviour”, showing a substantial degree of indifference on the part of the accused respecting reasonably foreseeable consequences to other persons because of his behaviour.

[203]     The accused has admitted that he committed a serious personal injury offence when he sexually assaulted the complainant in her residence.

[204]     As previously noted, Dr. Tomita testified that, in his opinion, the accused committed the predicate offences due to his inability to control his sexual impulses.

[205]     I am satisfied, based on that opinion, that the Crown has proven beyond a reasonable doubt that the accused “showed a failure to control his sexual impulses” when he committed the predicate offences.

[206]     However, the Crown must also prove beyond a reasonable doubt that it is more likely than not that the accused’s failure in the future to control his sexual impulses will cause “injury, pain or other evil to other persons”.

[207]     Given the age of the accused, along with his diagnosed sexual immaturity, social awkwardness, developmental delay, intellectual deficits and paraphilia, it is difficult to come to any clear prediction that the accused will fail in the future to control his sexual impulses, causing injury, pain or other evil to other persons.

[208]     I find the best predictions of the accused’s future behaviour come from the opinions of the experts. Dr. Bodnarchuk, Dr. Janke, Dr. Su and Dr. Tomita were all alive to the accused’s risk of sexually reoffending in the future. Yet, with those risk considerations in mind, they all contemplated the accused’s eventual reintegration into society under close supervision.

[209]     As previously noted, Dr. Tomita opined that the accused was “treatable”. The Crown has conceded that the accused is “treatable”.

[210]     In R. v. Yogaratnam, 2009 ONCJ 121, a dangerous offender case, Hawke J. (at para. 48) was of the view that it was necessary for the court to exercise “great caution” before designating the accused as dangerous, in light of his young age.

[211]     The predicate offence in Yogaratnam was sexual assault. At the time the accused committed the sexual assault, he was 18 years old. At the time of the dangerous offender proceeding, he was 21 years old.

[212]     In declining to designate the accused as dangerous, the court took into account psychiatric evidence that the accused was not only young, but also lacked maturity, lacked education, and possibly had a learning disability: para. 49.

[213]     The court was satisfied that there was evidence to support the imposition of an LTSO, as there was a reasonable possibility of eventual control of the risk in the community: para. 52.

[214]     In LSJPA-146, 2014 QCCA 303, the Québec Court of Appeal upheld a designation of dangerousness with respect to a young accused who had repeatedly committed serious personal injury offences (sexual assaults) against vulnerable victims.

[215]     The Court of Appeal held that the judge’s assessment of the evidence, in particular the expert evidence, must be given significant deference. However, the court also stated in part at para. 76:

[216]     I am not satisfied that the Crown has proven beyond a reasonable doubt that it is more likely than not that the accused will cause injury, pain or other evil to other persons through his failure in the future to control his sexual impulses.

[217]     Gladue factors have played a role in this hearing. In R. v. Mattson, 2014 ABCA 178 at para. 49, the Alberta Court of Appeal noted that Gladue factors are applicable to the “sentencing” stage rather than the “designation” stage of dangerous offender proceedings.

[218]     I am not satisfied beyond a reasonable doubt that the accused constitutes a threat to the life, safety or physical or mental well-being of other persons. I therefore decline to designate the accused as a dangerous offender.

[219]     In its written submissions, the Crown provided the court with various authorities to justify its position that the accused ought to receive a determinate sentence of four years concurrent, to be followed by a 10-year LTSO pursuant to s. 753(5) of the Code.

[220]     The Crown has submitted that the accused should not receive enhanced credit for the time he has served in prison, as that would result in the potential for his release back into the community untreated, which would put the public at risk.

[221]     Dr. Tomita testified that the accused would require the high-intensity sex offender treatment that is available in the Federal Correction system. After his release, he would require sex offender maintenance programs in the community while on parole. His treatment could take years, and would likely include the use of anti-androgen medication.

[222]     Dr. Janke held a “very strong opinion” that the accused would require very close supervision in the community following his release from prison. He also believed that the treatment of the accused could include anti-androgen medications.

[223]     Ms. Goldstone testified that there were specific sex offender treatment programs available in the Federal Correction system that could include an Indigenous focus. She as well testified that, within the Federal Correction system, the accused could avail himself of a sex offender program that had an adaptive component to address his intellectual deficits.

[224]     Between the BYCC and NFRCC, the accused has spent almost 3 years in custody. He has not received any formal sex offender treatment at either facility.

[225]     If he was to receive enhanced credit following his transfer to the adult system, there would be little, if any, opportunity for him to receive treatment to address his specific treatment needs. This lack of treatment would place the public at risk.

[226]     In the context of dangerous offender proceedings, a court may withhold enhanced credit to ensure that adequate treatment can be achieved while the offender is being incarcerated: R. v. Davidson, supra at para. 424.

[227]     I adopt the submission of the Crown that public protection would best be achieved if the sentence for the accused places him within the Federal Correction system: Written Submission at para. 195.

[228]     I find the following factors are aggravating with respect to the accused’s commission of the predicate offences: the offences were planned and premeditated; he knew the residence was occupied; the complainant was sexually assaulted in her bedroom; he inflicted psychological harm on the complainant and the other occupants of the residence; and, the offences occurred in the early morning hours when the occupants of the residence were sleeping.

[229]     I find the following factors are mitigating with respect to the accused: his young age at the time he committed the predicate offences; his intellectual deficits; his social and sexual immaturity; his mental health challenges; his expressions of remorse reported by the various clinicians; strong family support; his ability to control his behaviour since his transfer to NFRCC; and, his Indigenous status.

[230]     I have also taken into account the overarching need to protect society. This would best be met through the imposition of a sentence that would afford the accused the best opportunity to receive sex offender treatment specific to his needs. The accused needs to receive sex offender treatment that will promote both his rehabilitation and his eventual reintegration into society.

[231]     I have taken into account the principles contained in s. 718.2(d) and (e) of the Code. I find those principles, in the circumstances of this case and having regard to the harm done to the victims, do not justify a sentence of essentially time served.

[232]     The accused is sentenced to four years in prison for breaking and entering a dwelling house and committing sexual assault contrary to s. 348(1)(d) of the Code.

[233]     The accused is sentenced to four years in prison for sexually assaulting the complainant contrary to s. 271 of the Code.

[234]     The sentences are concurrent each to the other.

[235]     For time served in custody, the accused shall be credited for two years, leaving two years remaining on the balance of the prison sentence.

[236]     It is recommended that the accused serve his sentence at a Federal Correction prison that will provide sex offender treatment specific to his needs, including sex offender treatment with an Indigenous focus.

[237]     As previously noted, the purpose of an LTSO is twofold: (1) to protect the public, and (2) to rehabilitate and reintegrate offenders back into the community.

[238]     I accept the diagnoses of Dr. Janke and Dr. Tomita that the accused suffers from paraphilia (not specified) and requires treatment to control this condition.

[239]     I accept the opinions of Dr. Bodnarchuk, Dr. Su, Dr. Janke and Dr. Tomita that the accused will require close community supervision over an extended time frame. This timeframe could be years.

[240]     If the accused does not receive close community supervision and treatment specific to his needs, there is a substantial risk that the accused will reoffend.

[241]     I accept the opinion of Dr. Tomita that the accused is treatable. His opinion in particular satisfies me that if the accused responds to treatment specific to his needs, there is a reasonable possibility of the eventual control of his risk in the community.

[242]     I am satisfied that the protection of the public and the accused’s ultimate rehabilitation and reintegration into society require the imposition of a 10-year LTSO pursuant to ss. 753(5) and 753.1(1) of the Code.

[243]     DNA on Counts 1 and 2 pursuant to s. 487.051 of the Code.

[244]     SOIRA for life on Count 1 of the Information pursuant to s. 490.012 of the Code.

[245]     Lifetime firearms prohibition on both Counts 1 and 2 pursuant to s. 109(3) of the Code.