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Docket: |
X051787 |
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Registry: New Westminster |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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BETWEEN: |
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HER MAJESTY THE QUEEN |
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AND: |
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WILLIAM GIBSON BROWN |
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REASONS FOR JUDGMENT |
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Counsel for the Crown: |
W. Dawson |
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Counsel for the Accused: |
T. La Liberte, Q.C. |
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Date and Place of Hearing: |
May 7-11, 14, 17, 18, 2001 |
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New Westminster, BC |
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INTRODUCTION
[1] On January 29, 1999, William Gibson Brown was
convicted of sexually assaulting a five-year-old boy ("the predicate
office"). An appeal of his conviction was dismissed on March 15, 2001, (R.
v. W.G.B., 2001 BCCA 230). Following his conviction for
the predicate offence, the Crown made application, with the consent of the
Attorney-General, to have Mr. Brown declared a dangerous offender or, in the
alternative, a long-term offender, pursuant to the provisions of Part XXIV of
the Criminal Code of Canada ("the Code").
At issue in this sentencing hearing is whether Mr. Brown's pattern of
repetitive behaviour, which is admittedly harmful and causes injury, is
substantially or pathologically intractable, or whether it is treatable and can
eventually be controlled in the community within the limits defined by the
long-term offender provisions of the Code.
[2] The Crown relies on s. 753(a)(i) and s.
753(b) of the Code as the bases for its application to designate
Mr. Brown a dangerous offender. Those provisions apply to an offender who has
been convicted of a serious personal injury offence, which by definition in s.
752(b) of the Code includes the offence of sexual assault, and
meets the following criteria as set out in s. 753(a)(i) and s. 753(b):
1. s.
753(a)(i): a pattern of repetitive
behaviour ... showing a failure to restrain his or her behaviour and a
likelihood of his or her causing death or injury ... through failure in the
future to restrain his or her behaviour...
OR
2. s.
753(b): by his conduct in any sexual matter ... has shown a failure to control
his or her sexual impulses and a likelihood of his or her causing injury ...
through failure in the future to control his or her sexual impulses.
[3] The predicate offence occurred after Part
XXVI of the Code was amended on August 1, 1997 ("the amended
provisions"). The effect of the amended provisions was thoroughly
canvassed in the companion decisions of R. v. Johnson (2001), 158
C.C.C. (3d) 155, 2001 BCCA 456 and R. v. Edgar (2001), 158 C.C.C.
(3d) 212, 2001 BCCA 457. At para. 104 in Johnston, Ryan J.A.
summarized the amended provisions as follows:
1. ... Once
a court determines that an offender meets the dangerous offender criteria, the
offender should be declared a dangerous offender. There is no residual discretion
not to declare the offender a dangerous offender.
...
2. ...
Before a court may declare a person to be a dangerous offender, it must find
that the offender's condition is "substantially or pathologically
intractable". This means that the question of treatability must be
examined in determining whether the offender is dangerous... [The amended
provisions have] eliminated the ability of the court to sentence a person found
to be a dangerous offender to a determinate sentence. It is essential that the
treatability analysis be done under these new provisions at the designation
stage.
3. Under the
new provisions, if an offender is likely to be cured of his or her condition
within the parameters of the appropriate determinate sentence, the condition
cannot be said to be intractable and he or she ought not to be declared a
dangerous offender. If the offender may not be cured, but may be controlled in
the community within the limits defined by a long-term offender sentence, the
offender should not be declared a dangerous offender, but a long-term offender
instead. The long-term offender provisions of Part XXIV of the Code are
thus more beneficial to an offender than the former provisions ...
[4] Ryan J.A. adopted the language of La Forest
J. in Lyons v. The Queen (1987), 37 C.C.C. (3d) 1 (S.C.C.) by
defining the concept of dangerousness as a pattern of behaviour or conduct that
is "substantially or pathologically intractable"; that is, conduct
which is "deep-seated or difficult to cure". (para. 70).
[5] There no longer exists a residual discretion
to decline to designate an individual as a dangerous offender if the criteria
in ss. 753(a)(i) and 753(b) of the Code have been met. The
amended provisions now require the treatability analysis of the offender's
conduct to be conducted at the designation stage of the hearing rather than at
the sentencing stage as occurred before the amended provisions were
implemented. Thus, the offender's prospects of treatment, control and
management in the community now feature a prominent role in determining the
level of intractability of an offender's conduct.
[6] This approach was also taken by Lambert J.A.
in the earlier decision of R. v. Poole (2000), 142 B.C.A.C. 151,
2000 BCCA 481, where he discussed the timing of the treatability analysis at
para. 16:
... possibility and the potentiality for treatment
must now form a part of the consideration of the circumstance of "the
likelihood of causing death or injury to other persons ... through failure in
the future to restrain his behaviour".
[7] In summary, therefore, if the Crown
establishes beyond a reasonable doubt that the offender's pattern of behaviour
or conduct meets the criteria set out in s. 753(a)(i) or s. 753(b), the amended
provisions require the sentencing judge to impose an indeterminate sentence. If
the offender does not meet the criteria for dangerous offender status, the
court may consider the long-term offender provisions of s. 753.1(1) of the Code
as an alternate sentence to the application.
[8] The criteria for a long-term offender
designation include:
1. The
appropriate sentence of incarceration must be two years or more;
2. There
must be a substantial risk that the offender will re-offend; and,
3. There
must be a reasonable possibility of eventual control of the risk in the
community.
[9] A "substantial risk of
re-offending" is defined in terms similar to those found in the dangerous
offender provisions. These include a conviction for certain specified sexual
offences (including sexual assault), and a pattern of repetitive behaviour or
sexual conduct (including the predicate offence) that will cause serious harm
to others and for which there is a likelihood in the future of a failure to
control.
[10] The essential difference between the dangerous
offender and the long-term offender designations is the finding in the latter
that the offender's condition is treatable, (even if not curable), and
eventually controllable in the community under supervision for a period of up
to ten years. In such circumstances, the offender's pattern of behaviour or
conduct would not be "substantially or pathologically intractable".
[11] If the offender does not meet the criteria for
either a dangerous or long-term offender designation, the court may still
impose a determinate sentence.
[12] I turn now to Mr. Brown's background history
in order to address the issue of whether his pattern of behaviour, which is
admittedly harmful, meets the description of being "substantially or
pathologically intractable", or whether his conduct is treatable and
eventually controllable in the community.
SUMMARY OF
HISTORICAL OFFENDING AND ASSESSMENTS
[13] Mr. Brown has a criminal record of 38
convictions spanning a 30 year time frame from 1969 to 1998. He has also
admitted to, or has been implicated in, a number of other offences for which he
has not been charged.
[14] His criminal convictions include 16 for
possession of stolen property, three for theft, three for fraud, two for break
and enter with intent, and one each for attempted break and enter, possession
of house-breaking tools, impersonation, criminal negligence in the operation of
a motor vehicle, and disobeying a court order. Nine of his convictions were for
sexual offences including the rape of his daughter and the rape of a woman
during a residential break and enter.
[15] Over twenty mental health professionals, one
neurologist, a vocational guidance counsellor, and at least one educator have
formally assessed him. As part of the assessments he has completed a variety of
psychological tests. Many of the earlier assessments relied on his
self-reporting for information regarding his personal background. More recently
he has admitted that much of his self-reported history was fabricated. All of
the assessments concluded that he was a high risk to re-offend.
PERSONAL
BACKGROUND
[16] Mr. Brown was apprehended by the Children's
Aid Society ("CAS") of Winnipeg, Manitoba, at about six months of
age. He remained in care until he reached the age of majority (18) in 1970.
During that time he was placed in seven different foster homes. He was
described as being "constitutionally hyperactive" and it is believed,
in hindsight, he probably suffered from Attention Deficit Hyperactive Disorder
("ADHD").
[17] In many of the pre-1992 assessments Mr. Brown
alleged that he had been physically, sexually, and emotionally abused as a
child, particularly in one placement where he had lived for about eight years.
He provided very graphic descriptions of the alleged abuse, which, had it
occurred, would have constituted extremely serious offending against a child
and might have, to some extent, offered some explanation for Mr. Brown's
subsequent criminal behaviour.
[18] However, a detailed review of the CAS records
by the social worker who had supervised Mr. Brown as a child in care showed no
medical, hospital, or other records of any alleged abuse. In 1992, after
completing the Sex Offender Program at the Regional Psychiatric Centre at
Abbotsford, B.C. ("the RPC Program"), Mr. Brown admitted that much of
his reported history, including the allegations of abuse during his childhood,
had been fabricated. The CAS, however, did have records of several complaints
regarding Mr. Brown lying and stealing as a teenager.
1. Early sexual offending
[19] At age 16, Mr. Brown was involved in his first
sexual offence for which he was charged criminally. There is no record of the
disposition of the charge but it seems later to have been dropped.
Subsequently, Mr. Brown admitted to several persons that he had committed the
offence.
[20] The offence occurred on July 24, 1968, and involved
an indecent assault upon a two-year-old boy. The child lived in the apartment
building where Mr. Brown delivered papers. Upon finding the child alone in the
laundry room of the apartment building, Mr. Brown pulled the child's pants down
and ejaculated on the child's anus and penis.
[21] At age 17, Mr. Brown attempted to indecently
assault another young boy. On February 17, 1969, while in the basement of an
apartment building, he had just removed the underwear of the three-year-old boy
when the child's mother came upon him. After being detained in custody, Mr.
Brown denied that he had sexually touched the boy but admitted that he had done
it "a few times before". Although Mr. Brown was not charged as a
juvenile, in April, 1969, he was placed on probation until September, 1969.
[22] Mr. Brown's sexually deviant behaviour
continued as an adult. On November 14, 1969, he was convicted of three counts
of indecent assault. The offences had occurred on September 15, 1969, October
8, 1969, and October 15, 1969, respectively. They involved three six-year-old
girls whose genitals he had licked and fondled. Mr. Brown pled guilty to all
three offences and received a two year custodial sentence. His sentence appeal
was dismissed.
[23] A psychiatric report prepared by the Director
of Forensic Services for his sentencing hearing stated that Mr. Brown did not
suffer from a psychotic mental disorder but that he did have a "schizoid
personality" with superimposed immature personality with sexual deviation.
There was apparently no available psychiatric treatment at that time for this
personality disorder. The report concluded that "... Brown does not appear
to have sufficient super ego strength to overcome the deviant sexual drives
which he experiences".
2. Other criminal behaviour
[24] Upon his release from prison in March, 1971,
Mr. Brown moved to Vancouver, then Medicine Hat, and in September, 1971, to
Edmonton. In both Medicine Hat and Edmonton he continued to be involved in
criminal activity. On December 21, 1971, he pled guilty to fraudulently
obtaining food. A year later, on December 21, 1972, he pled guilty to theft
under $200. He received a fine of $25 for each conviction. On August 21, 1975,
and September 11, 1975, Mr. Brown entered guilty pleas to criminal negligence
in the operation of a motor vehicle and theft over $200 respectively for which
he received concurrent four month sentences. On December 2, 1977, he was
further convicted of break and enter with intent for which he received a
sentence of six months on appeal. On June 18, 1979, he pled guilty to
possession of stolen property over $200, impersonation with intent, and
possession of house breaking instruments. For the latter convictions he
received custodial sentences of four months, a consecutive four months, and
thirty days respectively.
[25] During this time, Mr. Brown experienced severe
emotional and mental instability that included abuse of prescription drugs. He
was unable to maintain steady employment and attempted suicide on several
occasions, albeit more as an attention seeking device. A 1975 pre-sentence
report commented that probation was not an option for Mr. Brown as he was not
willing to be supervised and was unable to tell the truth. It described Mr.
Brown as "a very immature young man with a rather unrealistic view towards
the future. His attitude could be considered poor and he appears to be unable
to relate the full truth when questioned in regard to certain matters." A
1978 pre-sentence report stated that he denied committing the offence of break
and enter (to which he had pled guilty) and showed no remorse.
[26] In 1972, Mr. Brown became involved in a
relationship that resulted in the birth of his daughter J.L. on September 11,
1973. On April 8, 1974, he married J.L.'s mother. They were later divorced in
1985.
3. Sexual assault of his daughter
[27] On November 22, 1980, Mr. Brown was under
investigation as a suspect in a number of break and enters in the Edmonton
area. In that regard, his residence was searched and resulted in the police
finding some nude photos of his wife, some other unknown females and two
Polaroid photographs of his then seven-year-old daughter. The photographs of
his daughter displayed her with her legs up in the air, holding her vagina open
with two hands. In a subsequent police interview the child allegedly reported
that her father had undressed her, touched her vagina, attempted digital
penetration of her vagina, simulated intercourse, ejaculated in the vaginal
area and made her fondle his penis.
[28] Dr. Rouget, a pediatrician who examined J.L.
on November 28, 1980, reported that following a general conversation with the
child, she promptly told him of a long history of molestation by her father who
had told her that she was not to tell anyone about what they did together.
After a physical examination, Dr. Rouget noted the child's vagina was very
abnormal with multiple old tears of the hymen and large scar tissue into the
opening and along the wall of the vagina. Her medical records had noted that
she had required surgery for a large laceration to her vagina on April 1, 1976,
and that she was in the hospital again in May, 1977, for a large vaginal
laceration. It was Dr. Rouget's opinion that J.L. had been subjected to
repeated and severe sexual abuse.
[29] In several of the subsequent assessments, Mr.
Brown claimed J.L.'s 1976 and 1977 injuries were self-inflicted.
[30] On November 28, 1980, Mr. Brown was arrested
on a charge of indecently assaulting his daughter. He admitted taking the
photographs but denied the sexual assault although he said that he would plead
guilty to the offence if he were not granted bail. He was released on bail on
condition that he have no contact with his wife or daughter. In spite of this
prohibition, he had frequent contact with them, which he alleged was at their
invitation.
[31] On January 23, 1981, Mr. Brown pled guilty to
a charge of "indecent assault upon a female" in regard to his sexual
assault of his daughter. He also pled guilty to 13 counts of possession of
stolen property, break and enter with intent, attempted break and enter and
failure to comply with a term of bail. He received an aggregate sentence of
nine years and three months of which four years were for the sexual assault of
his daughter.
[32] J.L., now 27, testified at this sentencing
hearing. She has had a difficult life. She has been involved in a number of
relationships, had three children from three different fathers, and has had to
relinquish the care of all of her children. She has no memory of her father
sexually abusing her except for two snapshot recollections. She recalls one
incident when they were in her parents' bedroom and he was lying naked on the
bed on top of her. In the other incident she recalled being in his car where he
pulled down her pants and spanked her on her bare buttocks for something that
in her view did not warrant such a response.
[33] Her inability to recall this terrible period
of her childhood is not unusual according to many of the professionals in this
field. They advise that it is not uncommon for victims of childhood sexual
abuse to block traumatic memories of the abuse. J.L. was severely traumatized
by her father's sexual abuse and would appear to fall within this category of
victim.
4. Sexual assault during break and enter
[34] On December 27, 1980, while on bail after
being charged with the indecent assault of his daughter, Mr. Brown broke into a
woman's apartment, raped her, and stole some items from her home. The effect of
this assault on the victim was very traumatic. It resulted in her moving from
her home and having a lingering fear that the offence would be repeated even
though she knew that Mr. Brown had been arrested and was in custody.
[35] Around the time of this offence, there had
been a series of break and enters into apartments of young women, many who were
single parents, and many who were sexually assaulted by the home invader. The
suspect was described as a person wearing army fatigues with a fluorescent
"X" on the back and stripes on the arms. The Edmonton police had Mr.
Brown under surveillance as a suspect in these offences as he had been seen
wearing the same type of unique clothing in the condominium areas where the
offences had occurred.
[36] On September 17, 1981, following a jury trial
on the charge, Mr. Brown was convicted of "indecent assault on a
female" for the rape of the woman whose home he had broken into. For that
conviction he was sentenced to four years in custody, consecutive to his
aggregate sentence of nine years and three months. His total aggregate sentence
was thirteen years and three months.
5. Assessments during the 13 year aggregate
sentence
[37] At the outset of his sentence, Mr. Brown
maintained his innocence in regard to having committed any sexual wrongdoing,
especially against his daughter. He also denied having sexually deviant
propensities. He claimed he did not remember having committed any break and
enters stating that he was on valium at the time. In regard to the breach of
his bail condition that he stay away from his wife and child, he said they
wanted him to return home. He expressed no remorse for any of his actions.
[38] While at the Saskatchewan Penitentiary, he
completed some psychological tests. The results indicated that he has a level
of intelligence in the "Bright Normal" range and has well-developed
social skills. However, he was also described as "impulsive,
irresponsible, immature", with a superficial show of feelings and at times
manipulative. Further testing characterized him as "hedonistic, outgoing,
dominant, happy-go-lucky, clever, opportunistic, amoral, charming, popular, and
manipulative". He falls within a profile as having "social skills
[that] may appear quite good, [but which] eventually display[s] lack of
judgement, poor internal controls and neglect of obligations" and "typically
show flagrant excesses in their search for pleasure and self-stimulation".
He also experiences anxious and depressive moods, along with anger and
tensions, which can cause self-destructive thoughts and actions.
[39] It was not felt that he would benefit from a
sex offender program because of his continued denial of any sexual offending or
deviant sexual behaviour. However, on April 18, 1982, at his request, he was
transferred to the RPC Program. After five months, he left the Program by
mutual agreement because of his dishonesty with the group, his lack of
motivation for treatment, and his attempted negative manipulations. It was also
noted that he failed to understand the severity of his criminal activities. His
prognosis for release into the community at his Mandatory Supervision Date of
August 18, 1988 ("MSD"), was considered "guarded to poor".
It was recommended that he be involved in a long-term treatment program to
address his many problems.
[40] By 1984, after participation in a sex therapy
group and receipt of some psychological counselling, Mr. Brown started to
acknowledge his sexual deviance. Day parole was still denied to him. While he
expressed some understanding of his offending, it was felt that he continued to
be a high risk to re-offend unless he successfully completed the RPC Program.
[41] To that end, on June 28, 1984, Mr. Brown was
transferred from the Saskatchewan Penitentiary to the Mountain Institution
("Mountain") near Chilliwack. Further psychometric testing found
elevated depressive features. He was described as "suspicious, withdrawn,
aloof ... [with] difficulty in his sphere of emotions ... [and] will block,
repress or deny their existence. Test results indicate a high escape risk and a
high probability of parole violation."
[42] His requests for parole, day parole and
unescorted temporary absences ("UTA") continued to be denied.
[43] On November 7, 1984, Mr. Brown was again
admitted to the RPC Program. Again in July, 1995, he was asked to leave the
Program due to his lack of commitment to treatment and motivation to change.
[44] Mr. Brown showed some improvement over time.
By 1985, he openly admitted his offences although he did not address them in
any depth. However, at the same time he tended to present himself as a victim
and to rationalize and minimize his involvement. He successfully completed an
alcohol and drug program and continued with regular counselling sessions with a
staff psychologist. While at Mountain he had a satisfactory work record and
kept a relatively low profile. It was felt, however, that he continued to show
signs of manipulative behaviour and his requests for a UTA were denied.
[45] By 1986, Mr. Brown had developed a fatalistic
outlook about his future. He complained of depression for which he received
medication. He was bored and frustrated. Through acts of self-mutilation and
threats of suicide he attempted to manipulate people. His requests for Escorted
Temporary Absences ("ETA") were denied due to his unstable behaviour.
It was recommended that he receive intensive psychotherapy, including a return
to the RPC Program, before he would be considered for day parole. On August 22,
1986, the National Parole Board noted that: "Clearly the man is
deteriorating and is ... more dangerous now than when [seen] two years ago. He
needs help, and lots of it. It is very unlikely he will seek it."
[46] Dr. Gordon Bulmer, who has a three-year
residency in psychiatry and who was a member of the RPC ambulatory medical
services team that attended at Mountain, periodically saw Mr. Brown between
1986 and 1990. He described Mr. Brown as a cold individual who tended to
intellectualize rather than deal with the emotional impact of his offending
upon his victims. He was of the view that Mr. Brown's self-mutilation was a
reaction to his anger, frustration and self-pity.
[47] Although Mr. Brown had a fear of returning to
the RPC Program he did make another attempt on May 25, 1987. Again he was found
to be unwilling or unable to meet the criteria for his treatment and showed
little, if any, motivation. He left the Program on July 29, 1987. His discharge
summary noted that, "Mr. Brown seems unable and/or unwilling to give up
his anti-social sexual behaviour as a paedophile, rapist and homosexual who is
prone to sadistic, self destructive behaviour."
[48] Mr. Gerald Cyr, a staff psychologist at
Mountain, conducted regular therapeutic counselling sessions with Mr. Brown
between 1987 and 1991. He described Mr. Brown as emotionally labile and
requiring intensive treatment to deal with issues of anger management and
insight into his offending. However, Mr. Brown was reluctant to take any
treatment. Mr. Cyr diagnosed Mr. Brown as having a severe personality disorder
although he also saw periodic signs of maturity and rational thought. At Mr.
Brown's request, Mr. Cyr attempted to arrange contact between Mr. Brown and his
natural mother but after one meeting his mother requested that Mr. Brown not
contact her again.
[49] In advance of his MSD, Dr. Robert Ley, a clinical
psychologist, conducted an assessment of Mr. Brown. Dr. Ley concluded that Mr.
Brown had a severe personality disorder of a mixed type, with borderline,
antisocial, and histrionic features. He diagnosed Mr. Brown as having severe
paraphilia, which was multifarious. He was of the view that Mr. Brown was very
dangerous and "an enormous and perpetual risk to the public", and
that he required sustained, extensive and intensive psychological treatment. He
regarded Mr. Brown as one of the two or three most disturbed people he had
assessed in the last five years.
[50] On May 18, 1988, the National Parole Board
("the Board") made an order for Mr. Brown's continued detention. In
August, 1988, at Mr. Brown's request, he was once again transferred to the RPC
Program. He successfully completed a number of the assignments but continued to
show signs of dishonesty, attempted manipulation of therapy staff, and focused
on his own victimization. While in the Program he was found in possession of
pornographic literature which he used to attempt to manipulate peers and to
gain favours from off-ward peers. By January, 1989, he was asked to leave the
Program as he was "not motivated to continue in therapy".
[51] The discharge summary diagnosed Mr. Brown with
an Antisocial Personality Disorder of a Passive Aggressive type, having a
sexual deviation and reactive depression. It gave him a poor prognosis. It
concluded that with his history of violent sexual offending and his lack of
treatment, he remained a high risk to re-offend and cause serious harm to
someone if released into the community before his Warrant Expiry Date
("WED") on April 22, 1994.
[52] In 1990, Corrections Service of Canada
("CSC") retained Dr. Clifford Ratzlaff to complete a further
psychological assessment of Mr. Brown for the purpose of determining if his
continued detention was warranted. In his report of April 13, 1990, Dr.
Ratzlaff concluded that while Mr. Brown was not psychotic he had an Antisocial
Personality Disorder with psychotic features, secondary features of deviant
sexuality, and tertiary features of very serious neurotic depression bordering
on psychosis when alone and unsupervised.
[53] Dr. Ratzlaff was of the view that Mr. Brown
was very emotionally disturbed, lacked empathy and had no sense of remorse for
his victims. Given that past treatment had been unsuccessful, Dr. Ratzlaff
recommended that Mr. Brown receive intensive psychotherapy to deal with his own
problems. He felt that until Mr. Brown began to address his own problems he
could not successfully receive treatment for his victimization of others. He
concluded by recommending that Mr. Brown continue to be detained until he
successfully completed the RPC Program. Until then, in his view Mr. Brown
continued to pose a risk to the community.
[54] On Dr. Ratzlaff's recommendation, Mr. Brown
was granted supervised UTAs in order to attend six, one hour psychotherapy
sessions with Dr. Ratzlaff over a six month period. During these sessions Mr.
Brown provided Dr. Ratzlaff with a fabricated history of his childhood. It
included numerous accounts of severe physical, emotional and sexual abuse.
While Dr. Ratzlaff had considerable empathy for Mr. Brown, after six months of
treatment he concluded that Mr. Brown had made no progress. He recommended the individual
psychotherapy sessions be terminated.
[55] Dr. Ratzlaff described his long-term prognosis
for Mr. Brown as "dark and uncertain". He was of the view that Mr.
Brown continued to be a high risk to re-offend against children and should not
be released before his WED. This opinion was further confirmed when, three days
after Dr. Ratzlaff's final report of October 13, 1990, Mr. Brown was found to
have in his cell child pornography, three items of ripped children's clothing
that Mr. Brown used for masturbation, and a wooden paddle.
[56] Dr. Derrick Eaves, a forensic psychiatrist,
was next retained by CSC to conduct an assessment of Mr. Brown. He prepared
three reports dated April 11, 1991, August 30, 1992, and April 21, 1993,
respectively. Between the second and third reports Mr. Brown attended and
successfully completed the RPC Program.
[57] At Mr. Brown's request, Dr. Eaves did not
review any of the collateral information supplied to him before interviewing
Mr. Brown and completing his first report of April 11, 1991. Again, the history
Mr. Brown gave to Dr. Eaves for this first report was largely fabricated. Mr.
Brown did, however, admit that he had sexually abused his daughter J.L. over an
extended period of time and that the abuse had included sexual intercourse. He
also admitted that during his teens he had committed a number of break and
enters that were sexually motivated and during which he had raped the woman
occupants. He said he carried a gun during these offences and that he obtained
thrills from this activity and by staying one step ahead of the police. He also
admitted to having a strong sex drive that included an interest in younger
persons. He denied having any sexual fantasies of children.
[58] Dr. Eaves diagnosed Mr. Brown as having an
Antisocial Personality Disorder "with self-centredness and hostility so
profound that the diagnosis of psychopathy would also be merited". He
questioned Mr. Brown's truthfulness regarding his denial of sexual fantasies
involving children when he learned of the incident in which Mr. Brown had been
found in possession of items of children's clothing. He concluded his initial
assessment by describing Mr. Brown as "one of the most disturbed persons I
have ever assessed within the prison system and his contact with treatment
agencies does not appear to have produced any substantial improvement". He
concluded his April 11, 1991, report by stating, "Therapeutic
interventions, whilst necessary, are unlikely to modify his personality or his
sexuality in significant ways and the risk of recidivism must therefore remain
high."
[59] It was Dr. Eaves' opinion that Mr. Brown posed
a profound risk of sexual re-offending and that he was a serious threat to
himself and to others.
[60] In spite of this finding, Dr. Eaves
recommended that Mr. Brown again attempt to complete the RPC Program. However,
at Mr. Brown's annual detention review by the National Parole Board on May 16,
1991, it was noted that he "remains steadfast in his refusal to
participate in an intensive sex offender program at either RPC Prairies or
Pacific". As a result, the Case Management Team recommended that Mr. Brown
continue to be detained.
[61] Mr. Brown's resistance to participating in the
RPC Program eventually changed. In July, 1992, he again applied for and was
accepted into the Program. About a month after starting the Program, Dr. Eaves
interviewed Mr. Brown following which he prepared his second report of August
30, 1992.
[62] Prior to the interview Dr. Eaves reviewed all
of the collateral material he had been provided. That material, along with his
interview of Mr. Brown, confirmed his initial opinion that Mr. Brown was
profoundly unstable, lacked appropriate judgement, and presented enormous risk
towards himself and to others. In Dr. Eaves' opinion, Mr. Brown was still not
ready for release into the community and had a "very poor prognosis".
[63] The RPC Program was very intensive and
challenging for Mr. Brown. It is for a term of eight months and is reportedly
the most complex and intensive sex offender program in Canada. It adopts a
multidisciplinary approach that includes intensive group psychotherapy in the
mornings and a variety of focused modules in the afternoons. The modules
address a variety of topics including: developing effective communication skills;
identifying thinking errors; identifying the offender's crime cycle in order to
address relapse prevention; writing an autobiography; anger management;
relationships and sexuality; and developing empathy for the offender's victims
through role-playing.
[64] Mr. Brown's description of his crime cycle
between 1972 and 1980 was very disturbing. In one short statement he described
his sexuality and crimes as "Rape children, adults and daughter". His
autobiography further showed a pattern of unstable relationships.
[65] By January 28, 1993, Mr. Brown had made only
minimal progress. He continued to avoid issues, had difficulty in sharing his
inner feelings, and continued to experience major difficulties relating to
others. In order to continue in the Program, on February 2, 1993, he was
required to sign a behavioural contract which outlined the expectations for his
full and active participation in the Program along with his commitment to do
so.
[66] During the second half of the Program Mr.
Brown showed an improvement in his participation. For the first time he
admitted to having fabricated his childhood history. He also acknowledged his
variety of sexual interests which included women, men and children.
[67] Dr. Justin O'Mahony, a clinical psychologist
who was the Program Director from 1990-1998, supervised Mr. Brown's progress
from June, 1992, until April, 1993. He diagnosed Mr. Brown as having an
Antisocial Personality Disorder, of the Passive Aggressive type, which disorder
in his opinion was not particularly amenable to treatment. He also diagnosed
Mr. Brown as a paedophile based on his pattern of sexual attraction and
interest in pre-pubescent and young teenage children. In his view, Mr. Brown's
propensity to sexual deviancy with a variety of sexual partners was largely
based on opportunity.
[68] Mr. Brown's completion of the RPC Program did
have some positive impact on his behaviour. He showed signs of some behaviour
modification which the staff hoped might "slightly reduce" his
opportunistic offending. However, Dr. O'Mahony felt that Mr. Brown continued to
need further treatment, including another intensive sex offender program,
before his risk of re-offending would decrease. He noted that Mr. Brown
continued to be manipulative, resistant to change, immature and rebellious. He
also thought that Mr. Brown needed to develop personal skills in relating to
others and to learn to form healthy relationships.
[69] Dr. O'Mahony described the task of reducing
Mr. Brown's risk of recidivism as "daunting" in view of Mr. Brown's
very complex, extensive and lifelong emotional problems. In his view, Mr. Brown
continued to be a high risk to children. He also had doubts about whether Mr.
Brown really appreciated the full extent of the harm he had inflicted upon his
daughter. As Mr. Brown was hesitant about repeating the RPC Program, Dr.
O'Mahony's prognosis remained guarded.
[70] During the sentencing hearing Dr. O'Mahony was
advised that within a month of completing the RPC Program Mr. Brown was found
in possession of contraband which had been hidden in his cell. Under his
mattress were found a pink lacy piece of girl's clothing, a 4x4 photograph of
the buttocks of an ape, and a "girly-type" magazine. Upon learning of
this, Dr. O'Mahony expressed serious concerns regarding Mr. Brown's risk of
recidivism. In his opinion, the speed with which Mr. Brown had divested himself
of the gains he was thought to have made in the RPC Program did not bode well
for his prognosis. Dr. O'Mahony also questioned Mr. Brown's motivation to
change his behaviour.
[71] When advised of Mr. Brown's two subsequent
convictions for sexual assault of young children in 1996 and 1998 respectively,
Dr. O'Mahoney opined that Mr. Brown's paedophilic tendencies had failed to be
addressed to any degree and that it would appear they remained very strong. The
convictions confirmed his view that Mr. Brown, even after completing the RPC
Program, remained a "very, very" high risk to re-offend, especially
against children and young persons, and that Mr. Brown's denial of the need for
treatment was a serious issue. Dr. O'Mahoney was very pessimistic about how
much more progress Mr. Brown could achieve even with further treatment. He was
not optimistic that Mr. Brown could be treated and safely released into the
community at a manageable risk within any fixed period of time.
[72] Dr. Eaves' third report of April 21, 1993, was
prepared after Mr. Brown had completed the RPC Program. This was the first and
only time Mr. Brown had successfully completed the Program although he had
attempted it on six prior occasions.
[73] During the interview, Mr. Brown admitted to
Dr. Eaves that he had fabricated much of his reported history. In Dr. Eaves'
opinion while this admission represented some progress, he was concerned about
Mr. Brown's pathological lying and the contents of his lies as those are
features of a profound personality disturbance seen in psychopathy. In his
view, Mr. Brown still tended to justify and rationalize his conduct, and
continued to have little concern for the impact of his behaviour on others. Mr.
Brown's inability to form stable interpersonal relationships and his difficulty
in being honest, in his opinion, affected his treatability and therefore his
risk of recidivism remained substantial.
[74] This opinion was confirmed after Dr. O'Mahony
was advised that contraband had been found in Mr. Brown's cell about one month
after Mr. Brown had completed the RPC Program. Given this information, Dr.
Eaves concluded that the RPC Program did not appear to have benefited Mr. Brown
and that he continued to be preoccupied with children and young persons, all
the while denying any sexual attraction to them. In Dr. Eaves' opinion,
treatment was unlikely to affect Mr. Brown's prognosis, which he described as
"very, very, poor". In his view, Mr. Brown was a high risk to re-offend
irrespective of any treatment he received.
[75] With Mr. Brown's WED of April 22, 1994, fast
approaching, on January 20, 1994, the Board granted his request for a One
Chance Statutory Release at Sumas Centre for the last three months of his
sentence. Sumas Centre is a half-way house that is operated by CSC. It
supervises residents on day parole shortly before their WED in preparation for
their return to living in the community.
[76] Sumas Centre initially declined to accept Mr.
Brown based on the length of his criminal history, the proliferation of his
offences, and his apparent lack of remorse. However, the Deputy Commissioner
and the Board overruled its objection and ordered Sumas Centre to accept Mr.
Brown. The Board imposed six conditions on Mr. Brown's release:
1. abstain
from intoxicants
2. submit to
breathalyzer on demand
3. psychiatric
counselling
4. psychological
counselling
5. participate
in community Sex Offender program
6. not be in
the company of minors under 16 years of age without a responsible adult
present.
[77] While at Sumas Centre between February 2,
1994, and April 22, 1994, (his "WED") Mr. Brown was supervised by
Susan Larson, an experienced parole officer. Ms. Larson had a good rapport with
Mr. Brown and described him as being open with her, co-operative, and having a
positive attitude. She said he seemed "gung ho" to succeed in not
re-offending.
[78] For awhile, Mr. Brown attended the mandatory
psychiatric group sessions. He also obtained a job as a baker at Robin's Donuts
in Abbottsford. When Ms. Larson advised him that he should continue with sex
offender treatment after his WED she said he seemed amenable.
[79] In April, 1994, Mr. Brown lost his job at
Robin's Donuts. He also started missing his group meetings. It was also noted
that his participation in the group counselling sessions had been very
superficial.
6. Behaviour after release from custody in 1994
[80] After his WED and release into the community,
Mr. Brown contacted Ms. Larson on a few subsequent occasions if he felt he was
encountering a problem. However, he advised her that he was not interested in
continuing with any treatment. His last contact with her was to arrange a
meeting for which he did not show up.
[81] After leaving Sumas Centre, Mr. Brown met
Linda White, a woman his own age. He moved in with her at a condominium she
owned in a seniors complex. About eight months later they married on August 19,
1995. However, in spite of this relationship, Mr. Brown returned to his
pre-occupation with teenage girls and young children that was reminiscent of
his behaviour as a young man.
[82] Aura Currie met Mr. Brown in 1994 when he was
working at Robin's Donuts where she was also employed. She was 19 years old at
the time. They continued to meet regularly for coffee. She did not became
involved with Mr. Brown but much of his contact with her exemplified examples
of inappropriate and sexualized behaviour on his part. He invited her to his
apartment for drinks after he was married. He asked her to go skinny dipping
with him at Wreck Beach. And while driving her home from work one night, he
took her to a provincial park by the river where he smoked a joint and then
claimed to have run out of gas. Fortunately, Ms. Currie was able to obtain a
ride home with another vehicle that had also stopped in the park.
[83] In 1994, Mr. Brown also befriended Leah
Bushman, a single mother of three children now ages 13, 11 and 5. Mr. Brown was
very friendly with Ms. Bushman's middle child, S.B., when she was age six or
seven. S.B. referred to Mr. Brown as "Uncle Billy". He would buy her
gifts and told her she was very pretty. She would also regularly sit on Mr.
Brown's lap. On one occasion Ms. Bushman noticed that Mr. Brown had an erection
while S.B. was sitting on his lap. She told her daughter not to bother Mr.
Brown in that way.
[84] A few months later, S.B. told her mother of an
incident that had occurred between herself and Mr. Brown when she had been
sitting on his lap on a bench by the pool. S.B., now 11, testified at this
hearing. She alleged that when she was sitting on Mr. Brown's lap he touched
her vagina over her clothes. She said the touching made her feel uncomfortable
and she jumped off his lap and ran into the house. S.B. was only able to
remember parts of this alleged incident and on cross-examination her memory was
even more vague and confused. She also said she did not tell her mother until
two years after the incident had occurred.
[85] Ms. Bushman recalled seeing S.B. with Mr.
Brown at the pool and seeing S.B. suddenly jump off Mr. Brown's lap and run
into the house. She said that S.B. told her of the alleged incident two days
later and that while she believed her, she chose not to do anything about her
daughter's complaint.
[86] While the circumstances of the pool incident
are consistent with Mr. Brown's past and future conduct, given the
inconsistencies in the evidence it is not possible to conclude beyond a
reasonable doubt that Mr. Brown sexually assaulted S.B. However, given Ms.
Bushman's observations of Mr. Brown when he was with S.B. before the incident,
the circumstances of the pool incident are highly suspicious.
[87] Mr. Brown also had Ms. Bushman participate
with him in an ATM fraud for $2,000. After she had spent the money her
conscience bothered her and she admitted the offence to the bank officials. She
was never charged and did not have to repay the money.
[88] Ms. Bushman confirmed that Mr. Brown was
attracted to young teenagers around the ages of 14, 15 and 16 whom he would
often meet at Robin's Donuts. He would boast to her about picking them up,
giving them drugs and booze, and in return they would give him "whatever
he wanted". He told her he had a preference for the young girls as he
could "teach them" and "train the younger ones".
[89] Ms. Bushman was also a friend of Nicole
Meredith who had an affair with Mr. Brown between August, 1994, and August,
1995. Ms. Meredith advised that her sexual relationship with Mr. Brown included
spanking and bondage before they had sexual intercourse.
[90] Ms. Meredith has two daughters, one of whom
was five at that time. On March 30, 1996, her five-year-old daughter D.I.
disclosed to her that Mr. Brown had licked his finger and touched her vagina.
Using a doll, D.I. showed her mother what Mr. Brown had done to her. For a
period of time following the incident, D.I. was emotionally distraught, had
nightmares and started wetting her bed. She has now recovered from the incident
and is apparently doing well.
[91] On December 7, 1995, Ms. Trudy Chimiuk, the
landlady of the complex in which Mr. Brown and Ms. White lived, found a pair of
soiled women's or girl's panties lying about the building. Similar panties were
found on six or seven more occasions. By January, 1997, Ms. Chimiuk realized
this was not a coincidental happening and she contacted the Abbottsford
R.C.M.P. After Mr. Brown's arrest on charges in 1997, the incidents stopped.
[92] On May 13, 1996, Mr. Brown was arrested and
charged with sexually assaulting D.I. He remained in custody. At the
preliminary inquiry Ms. Meredith gave evidence but D.I. was found not to be
competent to testify. As a result, a plea bargain was made. On October 16,
1996, Mr. Brown pled guilty to the offence of sexual touching and received a
conditional sentence of two years less a day followed by three years probation.
A term of the conditional sentence was that Mr. Brown not be in the company of
any child under the age of 14 unless an adult was present. A further term was
that he attend any counselling or treatment as recommended by his supervisor.
[93] Deborah Hines was Mr. Brown's conditional
sentence supervisor. She described his behaviour as secretive, evasive and not
forthcoming. It was her opinion that Mr. Brown was a high risk to re-offend and
needed a high level of supervision in the community.
[94] She referred him for treatment to Dr. Kent
Utendale, a clinical psychologist with expertise in the assessment and
treatment of sex offenders. However, Mr. Brown told Dr. Utendale that that he
did not feel he needed any treatment.
[95] Dr. Utendale saw Mr. Brown on January 12,
1997, and again on September 22, 1997. In his report of February 23, 1997, Dr.
Utendale described Mr. Brown's mood as labile, varying from anger to wry
amusement, to jollity and contempt. He described Mr. Brown's sexual behaviour
as deviant. Dr. Utendale's diagnosis was that Mr. Brown had a paraphelia, not
attached to a specific behaviour or object, but involving problems of impulse
control. He also diagnosed Mr. Brown as having an Antisocial Personality Disorder.
In his opinion, Mr. Brown's prognosis was poor because of his refusal to take
further treatment.
[96] On February 20, 1997, while serving his
conditional sentence, Mr. Brown was arrested and charged with fraud and theft.
He was also charged with breach of the terms of his conditional sentence. He
pled guilty to the offences on February 25, 1997, and received a six month
custodial sentence. On June 25, 1997, he was released from custody.
[97] In Dr. Utendale's second report of September
26, 1997, he confirmed his previous diagnoses. He stated that Mr. Brown had
many treatment needs but that "treating him was another matter". He
concluded that Mr. Brown's prognosis was "guarded" because he was
unmotivated to seek treatment. He noted in his report:
People cannot be forced to change simply because we
would all like them to change. Mr. Brown is not unhappy with who he is nor his
life, therefore, there is no impetus to change. ... Seeing someone like Mr.
Brown and pretending that we can effectively treat him, jeopardizes the rest of
the programme and the many sex offenders involved in therapy who are active
participants and can change.
[98] Following Mr. Brown's arrest in February,
1997, Ms. White could not continue making the mortgage payments on the
condominium and foreclosure proceedings were started. She eventually moved into
another place. When Mr. Brown was released from custody on June 25, 1997, he
returned to live with Ms. White however their marriage had broken down and they
eventually separated.
[99] On February 10, 1998, Mr. Brown was arrested
for the predicate offence. It involved a sexual assault on a five-year-old boy.
During a short interval when the child's mother was absent, Mr. Brown pulled
down the child's pants, touched the child's penis with his hand, and after
lubricating his finger, digitally penetrated the child's anus. Mr. Brown
continues to deny he committed this offence.
[100] Following his conviction the Crown applied to
have Mr. Brown designated a dangerous offender. Pursuant to s. 752.1 of the Code,
the court made an order for a dangerous offender assessment of Mr. Brown. Dr.
Michael Coles, a forensic psychologist with expertise in the assessment and
treatment of sex offenders, including risk assessment, was appointed to conduct
the assessment. He completed his first report on January 14, 2000.
[101] Mr. Brown refused to participate in the
preparation of Dr. Coles' report because his appeal on the predicate offence
remained outstanding. However, after the Crown had completed its case and Mr.
Brown's appeal had been dismissed, he agreed to be interviewed. As a result,
Dr. Coles conducted five interviews with Mr. Brown over six and a half hours.
His supplemental and amended report dated November 23, 2001, reflects Mr.
Brown's participation in the assessment.
THE DANGEROUS
OFFENDER ASSESSMENT
[102] Dr. Coles was satisfied that Mr. Brown did not
have any major mental illness or disorder and had a higher intellectual
functioning. Both of these findings were positive indicators for psychotherapeutic
intervention.
[103] Dr. Coles found Mr. Brown to be co-operative
and to demonstrate excellent social and interpersonal skills throughout the
interviews. These skills would permit him to access community resources.
Furthermore, Mr. Brown answered all questions put to him in what Dr. Coles
thought to be an open, honest manner. Based on his scores from the Hares'
Revised Psychopathy Checklist ("PCL-R"), Mr. Brown ranked between the
45th and 55th percentiles for re-offending after release.
[104] Mr. Brown did not acknowledge with Dr. Coles
that he was a sex offender and at risk of molesting children. Instead he
expressed a desire to stay away from children because if something happened to
them he would be immediately suspected. He also stated that he would not take
the chance of molesting a child again. He did not want to spend the rest of his
life in jail.
[105] Dr. Coles reviewed in general with Mr. Brown
his history of offending but did not discuss with him any details of the
offences. Nor did he challenge Mr. Brown's denials of certain offences.
[106] Mr. Brown claimed to have no memory of his
juvenile offences, admitted his five adult sexual offences which occurred while
he was in Winnipeg, denied he had committed an excessive number of break and
enters although he admitted they were planned, and admitted to sexually
assaulting his daughter when she was between the ages of two-and-a-half and
seven, but just on four or five occasions. He claimed the two times she was
hospitalized with vaginal injuries, they were self-inflicted by use of a
vibrator and a hairbrush respectively. He admitted to raping a woman whose home
he had broken into but stated he had not been physically violent with her but
had been "very gentle". He denied both the 1996 sexual assault of
D.I. as well as the predicate offence in 1998 claiming the charges were
fabricated out of vindictiveness by the victims' mothers who were jealous over
an affair he was having at the same time with one of their friends.
[107] Mr. Brown also expressed remorse over some of
his past offending but showed a tendency to deny those offences which had not
been proven. He denied being sexually aroused by children and said he had
sexual preferences for adult females. He denied having diverse sexual interests.
[108] Although Mr. Brown admitted to some substance
abuse, there was no indication that substance abuse played a significant role
in his offending.
[109] Dr. Coles felt that Mr. Brown showed an element
of denial regarding his past offending and a failure to accept responsibility.
Also, in spite of Mr. Brown's claims, Dr. Coles was of the view that Mr. Brown
met the definition of a paedophile. This opinion was based on Mr. Brown's
admitted sexual deviancy with children and apparent attraction to pre-pubescent
children.
[110] However, Dr. Coles went on to state that Mr.
Brown's sexual offending against children fell within a wider pattern of
antisocial behaviour that was caused by his inability to control his impulsive
behaviour. For Mr. Brown's behaviour to change, the wider pattern of offending
behaviour must be successfully treated in addition to the sexually deviant
behaviour.
[111] In Dr. Coles' experience there was no clear
treatment for this disorder. The impulsive nature of Mr. Brown's offending and
his inability to control his deviant behaviour are residual symptoms of his
earlier ADHD which has a biological basis. The ADHD evolved into his present
Antisocial Personality Disorder within the DSM-IV diagnosis with psychopathic
features. While Mr. Brown can function very well in a restricted environment
such as jail, it is problematic whether his risk of recidivism could be safely
managed if he was released into the community.
[112] Mr. Brown's past treatment for this lifelong
condition has not proven effective. His participation in the RPC Program and
other programs appear to have had minimal effect on teaching him methods of
controlling his sexually deviant behaviour. In Dr. Coles' opinion, Mr. Brown's
extensive criminal history, the diversity of his offences including the
non-specific nature of his paraphelia, and his antisocial, aggressive, and
criminal tendencies which are deeply ingrained, all constitute negative factors
for Mr. Brown's successful treatment. In addition, the number and variety of his
past relationships, and his lack of steady employment are further indicators of
instability and increased risk of recidivism.
[113] When Mr. Brown was asked of his future plans if
he was released, he indicated that he wanted to move away from the large urban
centre and establish a relationship with a mature woman his own age who did not
have any children or grandchildren. While this appeared to be an honest
response to Dr. Coles, he questioned how realistic and effective a plan it was
for controlling Mr. Brown's behaviour. In order to monitor his behaviour and
for risk management, Mr. Brown would need to maintain close contact with any
supervisor. A remote area would reduce that opportunity. On the other hand an
urban setting might provide greater opportunity for offending.
[114] It was also noted that Mr. Brown did not
include any further sex offender treatment or other treatment for controlling
his impulsive behaviour in his future plans.
[115] In conclusion, Dr. Coles stated that Mr. Brown
was a high risk offender who had already received the highest level of
supervision after being released into the community and yet still re-offended.
That suggested the highest level of supervision given our present resources was
inadequate for Mr. Brown. Dr. Coles was also unable to give an opinion on a
fixed time in which Mr. Brown might safely be released into the community at a
manageable risk.
[116] In the final paragraphs of his report of
November 23, 2001, Dr. Coles states:
Despite his problems in school and his questionable
work record while in the community, Mr. Brown has excellent social skills. He
has been able to establish several relationships with women while in the
community, and has been described as an excellent worker while in jail. In the
personal interview/assessment situation, he relates well, saying many of the
right things, and saying them in an apparently honest and sincere manner.
However, he denies most of the offences with which he has been associated but
not charged, and continues to maintain his innocence regarding the early
assault of his daughter and the index offences. While the benefits of such
statements are obvious, acceptance of the findings of the courts results in the
equally obvious conclusion that Mr. Brown has, in fact, been less than fully
open and honest during the course of the present assessment. Dr. Utendale's
1997 negative opinions regarding the successful treatment of Mr. Brown would
therefore appear to be valid insofar as failure to recognize the existence of a
problem pre-empts any attempt to treat it.
Mr. Brown's failure to fully recognize the risk of
him re-offending, his history of impulsive behaviour and the limited control he
plans to place on his contact with children on his release from jail would be a
substantial problem should the court consider treatment in the community.
DISCUSSION
[117] It is difficult to add to Dr. Coles'
assessment.
[118] Mr. Brown continues to deny much of his
offending. He still does not acknowledge that he has a sexual deviancy that
includes offending against children. His understanding of the effect of his
conduct on his victims is minimal and he shows little, if any, remorse.
[119] He has also shown little, if any, interest in
changing his behaviour. That behaviour is impulsive, opportunistic and
histrionic. It stems from a severe antisocial personality disorder that
includes paedophilia. He does not appear to understand his need for ongoing
treatment to control his impulsive behaviour.
[120] Unfortunately, treatment of Antisocial
Personality Disorder continues to be problematic. Mr. Brown's past treatment,
which has included counselling, numerous assessments by psychologists, courses
in anger management, and the multi-faceted RPC Program that is geared to
cognitive behavioural treatment and relapse prevention, has proven
unsuccessful. After being released into the community, within five years of
completing the RPC Program, Mr. Brown had re-offended on two occasions and
continued to be preoccupied with sexual behaviour involving young adolescents
and children. He was not motivated to receive treatment from Dr. Utendale and
was not motivated to change his behaviour.
[121] At this time there are no other available
treatment programs for Mr. Brown to take even if he was motivated to change his
behaviour. Furthermore, there is no fixed time within which he could likely be
released into the community and have his behaviour effectively controlled with
supervision. His lack of insight into his offending, along with any real
motivation to change, continues to make him a very high risk to re-offend
especially against young, pre-pubescent children and young adolescents.
[122] In short, at this time Mr. Brown is one of a
small percentage of individuals whose pattern of behaviour or conduct is
"substantially or pathologically intractable". His conduct is
unquestionably "deep-seated and difficult to cure". There is
substantial likelihood that in the future he would continue to cause harm by
reason of his inability to restrain his behaviour. The evidence overwhelmingly
supports a finding that Mr. Brown is dangerous and meets the criteria in ss.
753(a)(i) and s. 753(b) of the Code.
[123] Accordingly, there shall be a declaration that
Mr. Brown is a dangerous offender. By operation of s. 753(4) of the Code he
must receive an indeterminate sentence.
[124] However, this indeterminate sentence is subject
to s. 761(1) of the Code which provides:
761.(1) Subject to subsection(2), where a person is in
custody under a sentence of detention in a penitentiary for an indeterminate
period, the National Parole Board shall, as soon as possible after the
expiration of seven years from the day on which that person was taken into
custody and not later than every two years after the previous review, review
the condition, history and circumstances of that person for the purpose of
determining whether he or she should be granted parole under Part II of the Corrections
and Conditional Release Act and, if so, on what conditions.
[125] There will also be an order pursuant to s. 760
of the Code ordering disclosure to the CSC of all reports and
testimony given by psychiatrists, psychologists, criminologists and other
experts, these Reasons for Judgment, together with a transcript of the trial of
the offender.
"D.M. Smith, J."
The Honourable Madam Justice D.M. Smith