Date: 19971010 Docket: X040224 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Ruling on Dangerous Offender Application Mr. Justice McKinnon October 10, 1997 HER MAJESTY THE QUEEN v. ROGER RAYNAUD BRUMMELL Counsel for the Crown: Ms. W. Dawson Counsel for the Defence: Ms. G. Gill [1] THE COURT: Mr. Brummell pleaded guilty to one count of sexual assault before my brother Josephson on June 2nd, 1995. Consequent upon that plea, the Crown sought and obtained the consent of the Attorney General to dangerous offender proceedings pursuant to s. 753 Part XXIV of the Criminal Code. In the interim, Josephson, J. became involved in a lengthy trial such that this matter was, with consent of both counsel, referred to me for hearing. In the result, on May 2nd, 1997, I commenced these proceedings. [2] On that date, Crown advised they had nominated Dr. J.A. Noone in August of 1995 in accordance with the provisions of the Criminal Code. Defence had not to that date nominated a psychiatrist but proceeded to nominate Dr. Kulwant Riar on the understanding proceedings would be adjourned over the summer to permit Dr. Riar time to examine Mr. Brummell and prepare his report. [3] Defence conceded the facts of the sexual assault and consented to filing as an exhibit, a transcript of the preliminary hearing. The offence occurred over a period of several months and involved a series of assaults upon a nine- year-old boy. His parents had befriended the accused, following Mr. Brummell's release from prison. [4] The accused suffers pedophilia. Upon release he ingratiated himself with the family such that he was able to spend a great deal of time alone with the boy. Numerous acts, including digital anal penetration, fellatio and much fondling occurred over this period of several months. Ultimately, a tenant of the parents observed suspicious behaviour which she reported, leading to an investigation and ultimate plea. [5] Mr. Brummell is fifty-nine years of age, but appears considerably older. He suffers many health problems, such that at least one medical expert considered it improbable he will live beyond age seventy. Much argument was advanced by his counsel on this point. She contended that any finding of "dangerousness" by the Court should be tempered with the probability that he would be incapable of criminal acts upon completion of a reasonably lengthy determinate sentence. [6] The offender, not surprisingly, has a long criminal history, commencing in 1953, when he was convicted of break and enter. Thereafter he embarked upon a life of crime for which he has spent many years in prison. I counted thirty-five convictions through to 1986 when he received a global sentence of eight years for sexual assault and gross indecency. He served his full sentence and had been released only a matter of weeks when he befriended and commenced assaulting the young boy who was the subject of this last offence. [7] He has been assessed by many professionals over the years. Some have assessed him on more than one occasion at different stages of his life. Dr. Noone first came in contact with him in 1990, when asked to assess him for parole considerations. In his report, he offered the following assessment, In summary therefore, this rather tragic individual who has been institutionalized all his life, predominantly in Correctional settings, continues with a highly severe mixed personality disorder which may be abating to a degree as he gets older; however, this is still not at a stage of recovery that would give any prospect for predicting survival in the community without similar recidivism. My recommendation therefore is that this rather tragic product of his environment be kept in custody for as long as the law allows. The risk for similar recidivism is unacceptably high for the period between his mandatory date and his warrant expiry date. Dr. Noone concluded his comments in 1990 by saying, In over five hundred parole assessments, I have seldom seen a more damaged personality than this sad case. [8] Considerable historical information, both professional and custodial, was filed which has proven astonishingly accurate in terms of projection. In 1957, an A.M. Clarke, psychologist, described Mr. Brummell as having a "sociopathic personality aggressive type" with a "poor" prognosis. In 1975, one F.R. Johnson, Classification Officer, recorded that his observations of the offender led him to conclude that he was a "habitual criminal" likely to reoffend. Similarly, in 1976, G.A. Angus, Senior Probation Officer, considered recidivism a probability. [9] I recognize these persons were not called as witnesses and prison officials cannot be considered "experts" capable of proffering opinions on recidivism. I mention them only because much of what they opine from their observations is supported by persons who are capable of offering opinion. I do not recall a case where the opinions expressed, including those of the Defence experts are so universal in their prognosis. [10] In 1976, a Dr. Gordon Stevenson, M.D., said of Mr. Brummell that it was "quite likely that even with an extraordinary degree of sponsorship and supervision he is not socially reclaimable." In 1978, Dr. William Forester diagnosed him as a "pathological personality" showing no guilt for offenses and for which there is no effective treatment. He recommended external controls. Dr. Alistair Murray assessed him eight years later in 1986 and concluded that he represented a continued danger to small children. He felt it was unlikely he would be amenable to treatment and considered that realistically he was not treatable. [11] Two years later, Dr. Schimpf, psychologist, conducted extensive tests and concluded Mr. Brummell suffered "severe neurological deficit" which along with other difficulties led to "a markedly inadequate personality." In 1988, another psychologist, Dr. W. Ross, considered the offender to be a "dangerous sexual offender" whose sexual urges had become more intense and out of control. He did not consider Mr. Brummell to be amenable to treatment and recommended his detention in prison "as long as possible." [12] Also in 1988 he was assessed by Dr. Derek Eaves, who also testified on this hearing. In his 1988 report, Dr. Eaves noted that Mr. Brummell was not much interested in a productive psychiatric assessment. It was Dr. Eaves' view then that Mr. Brummell would never commit himself to valid treatment interventions, citing his criminal record, his drug and alcohol abuse and other relevant aspects. Dr. Eaves considered him as posing a "tremendously high degree of risk" and I say parenthetically that was for recidivism should he be released. [13] It is interesting to note that almost ten years ago Dr. Eaves concluded that "overall, the prospects for this man are dismal in the extreme and the risks of him committing both sexual and non-sexual crimes are seen as substantial." At this hearing Dr. Eaves was provided with "assumed facts" tracking Mr. Brummell's history since last seen by him. He concluded that it was unlikely a person with Mr. Brummell's history would benefit from any treatment, assuming he was willing to undergo same. He was unable to proffer any particular opinion respecting Mr. Brummell because he did not have sufficient information about him. He based his opinions on the "assumed facts," given by the Crown. He did concede some advances in treatment from 1988 and that programmes exist to assist those suffering the diagnosis of Mr. Brummell, but these were comments generally and not specific to Mr. Brummell. [14] Dr. Noone, the Crown-appointed psychiatrist, interviewed Mr. Brummell many times. I believe he saw him on twenty-one occasions, varying from fifteen to thirty minutes a session. He also reviewed the many reports and documents filed. He considered Mr. Brummell to be a "fixated pedophile" for whom treatment would be "difficult." Historically he could see no indication of any concerted attempt or effort on the offender's part to partake in meaningful treatment, notwithstanding availability. He considered Mr. Brummell's risk of recidivism to be unacceptably high in 1990 and that continues to be his view. He commented that, In 1990 I was absolutely certain that if given the opportunity, he would reoffend and the risk in 1997 is the same as that given in 1990. He also said that he is seldom so dogmatic about a prognosis. [15] It was Dr. Noone's view that if Mr. Brummell was imprisoned for a further ten years during which time he received treatment, he could still not safely be released into the community. He knew of no present community resources that would satisfy his concerns for public safety. Similarly, he knew of no treatment programme that would ultimately prove of much value to this offender, given his resistance to treatment and his poor physical health. It was his view that no psychological drive was necessary to offend, rather mere access to children was all that was necessary. [16] Dr. Noone was also sceptical that Mr. Brummell would avail himself of any meaningful programmes, citing historical evidence that indicated he had no remorse, little insight and had never been involved in substantial rehabilitative programmes. He did attend several short programmes, but nothing of significance when weighed against his serious disabilities. [17] He was also of the view that even if motivated, he could not tolerate the kinds of programmes presently available suggesting a more "gentle approach". He considered the best scenario would see Mr. Brummell transferred to Mountain Prison, where he might avail himself of the intensive programme offered by one Fay Tomanuk. If successful in that programme he might then embark upon the sexual offender programmes presently offered, then return to the regular prison population but continue with programmes designed to prevent relapse. Only after all of this, which he estimated would take at least ten years, should he be considered for minimum security and perhaps eventual release into the community, and then only if he successfully completed the various programmes about which he expressed some doubt. [18] Dr. Riar interviewed and assessed Mr. Brummell, offering the following summary, In summary, Mr. Brummell has multiple ailments, including medical, emotional and cognitive difficulties. On the medical illness front, he has coronary artery disease, diabetes, partial complex seizures and Hepatitis C. Emotionally, he has a mood disorder, cluster C personality traits, somatoform disorder and paraphilia. Cognitively, he has impairment in memory, attention and concentration. As well, he also has below average intellectual capabilities, learning disabilities and poor abstracting abilities. [19] That diagnosis was made by others, including Dr. Noone and is generally accepted by all who are capable of offering expert opinion on the topic. Dr. Riar commented about the dichotomy involved in treating his epilepsy. That clearly must be treated with medication, but one effect of the medication is an aroused sexuality which is incompatible with treatment for pedophilia. Even assuming he benefits from treatment, Dr. Riar was of the view that any release to the community would require a setting that provided Mr. Brummell with twenty-four hour supervision. No such facility presently exists. [20] I must say that after listening to Dr. Riar, the defence psychiatrist, I considered his description of the "community care" necessary for this offender to sound very much like a custodial institution. It did not seem to me that Dr. Riar believed Mr. Brummell possessed the necessary motivation, assuming treatment was available. So far as he could discern, any motivation emanated from either his conscience finally telling him he needed treatment or merely because it is a provident thing to do when faced with a dangerous offender hearing. He was unable to establish any particular motivation, assuming it existed. [21] Dr. Riar also considered Mr. Brummell a continuing threat to young children, notwithstanding his many health problems. Even with those problems, he will always have the urge to offend and will be prevented from doing so only if so incapacitated he simply cannot physically act. [22] Dr. Robert Ley, psychologist, offered the most positive assessment. He interviewed and tested Mr. Brummell in April 1997 and also reviewed the many reports and opinions then available. I use the term "positive" only in a relative sense. Dr. Ley believed Mr. Brummell sincere in his desire for treatment and that given his modest accomplishments in the past, it might be possible to offer some treatment. [23] Regrettably, I was not able to place much reliance on the "accomplishments." One of these involved Mr. Brummell's educational pursuits in the past few years, but it is not at all clear just what he might have accomplished. Whatever he accomplished, it would appear from the tests conducted by Dr. Ulrich Lanius that he has relapsed to the point where he is back to a Grade 3/4 level of comprehension. [24] All experts agree that in order to profit from treatment, one needs both a certain level of intellect and some insight. Presently Mr. Brummell has neither. [25] I permitted the Crown to reopen its case to call Dr. Lanius as he had examined Mr. Brummell in August 1997 at the request of both defence and Crown to explore the issue of dementia. That inquiry apparently required very extensive testing. Dr. Lanius was with Mr. Brummell for five and a half hours on one occasion, and two and a half hours on another, during which times more than six recognized tests were conducted and later evaluated. Ultimately, insofar as dementia was concerned, all he was able to conclude was that although some early signs were observed, he could not make the diagnosis. [26] The tests and interviews, however, led to a conclusion that Mr. Brummell represented a "very high risk of recidivism" and that he should be kept under "close supervision for the rest of his life." He went on to comment that there should be no possibility of any unsupervised access to children and that he would need twenty-four hour supervision. He considered the possibility of successful treatment "remote." [27] Although defence assured me early in these proceedings that it challenged the Crown's contention that Mr. Brummell was a dangerous offender, the focus of most cross examination by defence and indeed the evidence called by defence was directed to the issue of whether he might reasonably be treated in a determined period. [28] I had no difficulty concluding that Mr. Brummell met the criteria for a dangerous offender found in s. 753. The offence for which he was convicted is a serious personal injury offence as defined in s. 752. A pattern of repetitive behaviour likely causing severe psychological damage to victims has been established, along with a likelihood that he would be unable to restrain his behaviour in future. It has also been established that Mr. Brummell engages in persistent aggressive behaviour for which he expresses indifference to the harm caused to victims. Finally, pursuant to s. 753(b) it has been established beyond any dispute that there is a pronounced failure on his part to control his sexual urges and the likelihood of repeat offenses of this nature are virtually certain. [29] I therefore accept the Crown has discharged its burden and has established that Mr. Brummell meets the criteria of a dangerous offender. I find Mr. Brummell to be a dangerous offender pursuant to Part XXIV of the Criminal Code. [30] As indicated, the major focus of this inquiry was how this Court ought to exercise its discretion in terms of a determinate/indeterminate sentence. Indeed, as indicated, this was the primary focus of the defence. [31] Mr. Brummell suffers pedophilia, for which there is no cure, only treatment to control. Additionally, he suffers severe health problems requiring extensive daily medication that greatly restricts any ability to undergo that treatment. I am satisfied that given his deteriorating health and his level of intellect and insight, he is unable to profit from any treatment. [32] I have concluded, as well, that he is not motivated and would probably not submit to treatment in any event. Even with treatment, he remains a substantial risk, requiring twenty-four hour supervision, which is not available in a community setting. Without treatment, a situation I have concluded will occur, he is virtually condemned to reoffend. [33] In the result, I am satisfied, given the criteria of Part XXIV that the only sentence option available is one of indeterminate sentence. I therefore sentence Mr. Brummell to a term of detention in a penitentiary for an indeterminate period in lieu of any other sentence that I might have imposed for the offence of which he was convicted. If, as Ms. Gill projects, he becomes so ill in the future that he is virtually bed-ridden, then I hope that the authorities will locate a care facility that would make his days reasonably comfortable, while at the same time exercising that twenty-four hour supervision said by all to be necessary to protect the public. "R.A. McKinnon, J." The Honourable Mr. Justice R.A. McKinnon