Indexed as:
R. v. Payne
Between
Her Majesty the Queen, and
Lee Marvin Payne
[2001] O.J. No. 146
Court File Nos. 2596/99 and 2609/99
Ontario Superior Court of Justice
Hill J.
Heard: January 17, 26, June 19, October 16-18, November 4,
2000 and January 8, 2001.
Judgment: January 12, 2001.
(150 paras.)
Criminal law — Dangerous offenders, detention — Conditions precedent —
Protection of the public — Dangerous sexual offender — Pattern of repetitive behaviour
— Incurable personality disorder — Evidence and proof — Sentencing — Considerations
— Previous criminal offences — Remorse of accused — Guilty plea — Age of accused —
Time already served — Punishments (sentence) — Imprisonment and parole — Parole,
period of ineligibility — Long term supervision — Jurisdiction — Jurisdiction, Superior
Court Judges — Summary conviction proceedings — Pleas — Guilty plea, expungement
or setting aside.
Application by the Crown to declare the accused Payne a dangerous offender and to
have him sentenced to an indeterminate term of imprisonment. Payne pleaded guilty to a
March 1997 sexual assault and to several sexual assault and indecent act offences that he
committed between April 13 and 26, 1998. The victims were mainly teenaged girls
between the ages of 15 and 17. Payne was on probation for a robbery he committed in
April 1997 when he committed the sexual offences. The indecent acts were summary
conviction offences. Payne was 25 years old at the time of this application. He had no
criminal record prior to the March 1997 offence. Upon his arrest Payne provided an
inculpatory video statement. He voluntarily provided a DNA sample. An assessment
indicated that Payne suffered from paraphilia and a substance abuse disorder. Paraphilia
was a condition where an individual experienced sexual arousal in response to
inappropriate objects, either by gender or age or the nature of the sexual activity. Payne
was attracted to teenaged girls. He was a high risk to reoffend. There was no effective
treatment for paraphilia. The prospects for the treatment of substance abuse were limited,
especially since Payne did not want to seek professional assistance. Payne denied the
seriousness of his sexual offences. He was in pre-sentence custody for two and onequarter years. He expressed remorse for his actions and wanted to seek professional help
for his problems. He abstained from drugs and alcohol during this time. He acted
properly during his assessment. This application was only for the offences committed
after the long term offender amendments to the Criminal Code came into effect.
HELD: Application dismissed. Payne was sentenced to five and one-half years
imprisonment. This would be followed by a 10-year supervision order. Payne
demonstrated his failure to control his sexual impulses. He established a pattern of
repetitive behaviour that would cause injury or serious psychological damage to
others. He was likely to reoffend in a sexually aggressive manner. His ability to function
normally was significantly impaired by a psychiatric disorder. However, there was a
reasonable possibility that Payne could be controlled once he was released. The court
was not satisfied, beyond a reasonable doubt, that Payne would likely cause future
harm. The appropriate sentence was 10 years. His pre-trial custody was equivalent to
four and one-half years. Payne would not be deterred and rehabilitated during the normal
period of parole ineligibility. He was to serve at least one-half of his sentence before he
could be considered for release under the supervision order. Payne's guilty pleas for the
indecent acts were struck. The Superior Court lacked jurisdiction to try these offences,
regardless of Payne's consent and his pleas. These offences were remitted to the Ontario
Court for such action as the prosecution decided to undertake.
Statutes, Regulations and Rules Cited:
An Act to amend the Criminal Code (High Risk Offenders), the Corrections and
Conditional Release Act, the Criminal Records Act, the Prisoners and Reformatories Act
and the Department of the Solicitor General Act, S.C. 1997, c. 17, 45-46 Eliz. II.
Corrections and Conditional Release Act, ss. 4(e), 88(1)(a), 88(3), 99.1, 101, 128(1),
129(2)(a)(i), 129(2)(a)(ii), 129(9), 129(10), 130(1), 130(3)(a), 132(1), 132(1.1), 134.1(2),
134.2.
Corrections and Conditional Release Regulations, SOR/92-260, ss. 55, 57, 60, 72, 161(1).
Criminal Code, ss. 100(1), 109, 173, 468, 487.04, 487.052, 487.06(1), 718.2(c), 726,
732.1(3)(h), 741.2, 743.6, 743.6(1), 752, 752(a), 752(b), 752.1, 753, 753(1), 753(1)(a),
753(1)(a)(i), 753(1)(a)(ii), 753(1)(a)(iii), 753(1)(b), 753(4), 753(5)(a), 753.1, 753.1(1),
753.1(1)(c), 753.1(2), 753.1(2)(b), 753.1(2)(b)(i), 753.1(2)(b)(ii), 753.1(3), 753.2(1),
761(1).
DNA Identification Act, S.C. 1998, c. 37.
Mental Health Act.
Counsel:
D. Quick, for the Crown.
D. Derstine, for the accused.
TABLE OF CONTENTS
THE PROCEEDING
THE OFFENCES
Count #6 (sexual assault)
Count #8 (indecent act)
Count #13 (indecent act)
Count #3 (sexual assault)
Count #1 (sexual assault causing bodily harm)
Count #7 (breach probation order)
Count #15 (indecent act)
THE 1997 ROBBERY
THE OFFENDER'S BACKGROUND
THE DANGEROUS OFFENDER APPLICATION
THE PSYCHIATRIC PROFILE
Overview of Diagnosis
Risk Assessment
Treatment Potential
MR. PAYNE'S LETTERS
OVERVIEW OF PART XXIV OF THE CRIMINAL CODE
PROCEDURAL ISSUES
Summary Conviction Offences Before the Superior Court Retroactivity of
Bill C-55 Amendments
WHETHER THE ACCUSED IS A DANGEROUS OFFENDER
THE APPROPRIATE DETERMINATE SENTENCES
THE LONG-TERM SUPERVISION ORDER
COROLLARY ORDERS
Delayed Parole Order
Weapons Prohibition
DNA Identification Act Order
HILL J.:—
THE PROCEEDING
¶ 1 On January 17th, 2000, Lee Marvin Payne pleaded guilty to a 1997 sexual assault
and to a cluster of sexual offences committed a year later in a six-week period in 1998.
¶ 2 The Crown applies to have the offender declared a dangerous offender and
sentenced to an indeterminate term of imprisonment.
THE OFFENCES
¶ 3 Arranged in chronological order as to date committed, the details of the crimes
acknowledged by the accused.
Count #6 (sexual assault)
¶4
On March 11th, 1997 at about 7:15 p.m., A.C. and E.P., aged 16 and 15 years
respectively, were walking along Atwater Avenue in Mississauga having just left a
convenience store. As they walked, the girls observed the accused walking along the
sidewalk toward them. Mr. Payne's pants were down and his penis exposed as he
masturbated. A.C. and E.P. walked past the accused without speaking. The offender
began to follow them. The girls ran with the accused in pursuit.
¶5
The accused caught up to A.C. and from behind grabbed her crotch over her pants
with his hands. When the victim began to scream, the accused called her a "psycho".
¶6
A.C.'s victim impact statement describes her fear of walking alone and of being
approached by male strangers.
Count #8 (indecent act)
¶ 7 On April 13th, 1998, at about 8:15 p.m., a 45-year old female, L.S., was walking
through Lake Aquitaine Park in Mississauga when she observed the accused riding his
bicycle. As she walked past the accused, the woman smiled as if to say hello. Riding his
bicycle, Mr. Payne began to circle the victim saying: "Do you want to see a nice cock? I
bet you haven't seen one as nice as this". The victim observed the offender's pants were
down and that he was masturbating. The woman immediately walked to a nearby
apartment building.
¶8
The complainant's victim impact statement states that the incident has severely
affected her capacity for spontaneous interpersonal relationships.
Count #13 (indecent act)
¶9
At about 11:30 p.m. on April 25th, 1998, two 16-year old girls, J.P. and
J.H., were walking along a pathway around Lake Aquitaine Park in Mississauga when
they observed the accused riding on his bicycle smoking a cigarette. When the accused
saw the girls, he stopped riding and allowed them to catch up to where he was positioned
and to walk by. Nothing was said. On three or four occasions, the offender rode past the
girls allowing them to reach and go past his position. At a point, the accused exposed his
penis, began masturbating, and said: "Would one of you girls like to suck my dick for
twenty dollars?" One of the girls sarcastically said: "Sorry", at which point the offender
replied: "Come on, it's easy money". The girls walked on and the offender rode off in
the opposite direction.
¶ 10
As a result of the confrontation by the accused, J.P. no longer walks alone, she is
more cautious and over-protective. J.H.'s victim impact statement asserts that she now
never speaks to strangers and does not go out alone.
Count #3 (sexual assault)
¶ 11 Shortly before midnight on April 25th, 1998, 15-year old T.D. was walking on
the east sidewalk of Glen Erin Drive in Mississauga. As the victim walked by the
accused, he said to her, "Suck my dick". T.D. continued walking followed by the
accused walking his bike saying, "Just suck my cock". T.D. said, "No", at which point the
offender stopped his bike across the sidewalk in front of T.D., grabbed her by the throat
and said "Just do it". The victim struggled, escaped Mr. Payne's grasp, and fled. The
accused commenced a chase of the victim but soon stopped. The victim ran home crying.
Count #1 (sexual assault causing bodily harm)
¶ 12
At about 15 minutes after midnight on April 26th, 1998, S.C., a 17-year old
female, was walking alone on the sidewalk on Battleford Road in Mississauga. As she
passed by the overpass at Plowman's Park, S.C. observed Mr. Payne on the sidewalk
undoing his pants. As S.C. neared the accused's position, she became aware that he had
removed his penis from his pants and was masturbating. As S.C. attempted to pass, the
accused grabbed her pulling her off the sidewalk and into the bushes.
¶ 13
Once in the bushes, the accused pulled off the victim's pants and
underwear. S.C. was pushed to the ground and punched twice in the face. As S.C.
continued to scream and struggle, the accused placed his hand over her mouth to stifle her
screams and choked her by placing his hands around her throat. The accused said: "Oh, I
just want to play with you" and repeatedly stated: "You're a virgin ... You've never done
it before". The victim could smell alcohol on her assailant. Having gained control of the
victim, the offender digitally penetrated S.C.'s vagina, performed cunnilingus upon her,
followed by sexual intercourse. The complainant reported her attacker undergoing a
mood change - telling her she was sexy and pretty then saying: "You like it up the ass,
don't you? You slut". The complainant feared she might be killed. After the rape, the
accused stood up, said "Have fun", and fled on foot. The victim went to a friend's home
and was taken to hospital by ambulance.
¶ 14
Forensic examination of the victim's clothing revealed seminal stains. A consent
blood sample obtained from the accused after his arrest was matched to the stains on
S.C.'s clothing.
¶ 15
The victim suffered a black eye to the left side of her face as well as a number of
thorns stuck in her skull for some weeks following the attack.
¶ 16
S.C.'s victim impact statement details her continuing fears, her feelings of
violation, and the significant impact on her life as a result of being raped.
Count #7 (breach probation order)
¶ 17
On September 11th, 1997, following a plea of guilty, Lee Marvin Payne was
sentenced to six months' imprisonment for robbery to be followed by a two-year
probation term terminating January 8th, 2000. The probation order included the
mandatory term that the probationer keep the peace and be of good behaviour. The
sexual assault of April 26th, 1998 violated this term of the order.
Count #15 (indecent act)
¶ 18 Shortly after midnight on April 27th, 1998, a 58-year old woman, B.M., parked
her vehicle in the underground parking lot of a building on Glen Erin Drive in
Mississauga. As she emerged from the stairway to the outside near the front of the
building, the woman observed the accused with his penis exposed masturbating. The
offender said: "Oh baby, would you like to suck my cock?" When the victim attempted
to move around the accused, he moved to block her path. The woman turned and ran
back into the underground where she sought the assistance of a security guard.
¶ 19
B.M.'s victim impact statement reflects her fear of underground parking facilities
and walking alone at night.
THE 1997 ROBBERY
¶ 20 On April 19th, 1997, shortly after midnight, Mr. John Taveres, the owner of the
Great Canadian Pizza Co. restaurant on Lakeshore Road East in Mississauga was in the
process of closing up his establishment when he received a report of a man pacing back
and forth at the side of the building making indecent gestures to patrons. Mr. Taveres
was informed that the individual was exposing his privates.
¶ 21
A short time later, as Mr. Taveres locked his restaurant, he saw a male person
walking to the rear of the building an area from which there was no exit. Mr. Taveres sat
in his car keeping watch to see if the man reappeared. He did, and came right to the car
window asking the time. The man then walked away. Mr. Taveres decided to drive
slowly around the block.
¶ 22 Ms. M. testified that she left work at the Colossus Restaurant on Lakeshore Road
after midnight and walked to her vehicle in a nearby parking lot. She was three months
pregnant. In the lot, she observed a man with his coat open, and his penis exposed as he
masturbated. Ms. M., frightened by what she saw, returned to the restaurant. After about
a minute, she returned to the parking lot. She did not see the man any longer. Ms. M.
opened her car door and got in without locking the doors. Suddenly, the man she had
seen earlier, Lee Marvin Payne, opened the car door. When she struggled to get out of
the car, the accused attempted to push her back into the vehicle.
¶ 23
The victim screamed and managed to exit her car. She continued to scream. The
offender pushed himself against her leaning her back against the car. For about a fiveminute period, the accused choked the victim with both his hands around her neck. The
accused pushed the victim to the ground, and laid on top of her continuing to choke her.
¶ 24 Mr. Taveres arrived on the scene and subdued the accused holding him for the
arrival of the police. Ms. M. suffered minor injuries in the attack.
¶ 25
The arresting officer discovered the offender to be intoxicated.
¶ 26 The trial judge expressed the view that the circumstances of the crime seemed to
suggest the commission of a sexual assault more so than a robbery. Defence counsel
submitted that his client had an alcohol problem.
¶ 27
The pre-sentence report included the following comments:
Ms. Andrade, age 19, says her two years living with the offender have been
"tough". She sees the offender as being "more responsible" now and he
has "reduced his drinking". Since reducing his drinking, the offender has
taken his role of father and provider more seriously.
...
Although he takes full responsibility for his behaviour, he relates there are
"parts" he's unable to remember.
...
According to the offender, he was a regular abuser of alcohol and
cannabis. Over a two year period, he used these drugs daily, spending
$300.00 to $400.00 weekly.
...
He does, however, admit to a serious substance abuse problem. To deal
with this, the offender has begun counselling with an agency close to his
home.
...
The offender accepts responsibility for his behaviour, however, uses his
drunkenness as an excuse. He promises to be amenable to counselling and
has curtailed his drinking but not stopped completely. If community
supervision is being considered as whole or part of a disposition, the
following conditions might prove beneficial:
-
¶ 28
abstain from alcohol consumption absolutely
abstain from use, possession of illicit drugs
continue to attend counselling for substance abuse at discretion
of probation officer.
In sentencing the accused, the trial judge observed:
Mr. Payne, your lawyer has said everything she can on your behalf and I
think it's apparent to you and everyone else that this is an extremely serious
offence. Women, and indeed everyone, have the right to go about their
business on the street without being attacked in this way. Whether your
intent was sexual or monetary doesn't make that much difference. The fact
is that this offence is rather chilling in the way it was committed - the
perseverance that you showed when she first resisted you, you continued,
you got her on the ground, you were choking her. It is a most disturbing
offence, no doubt, for her and for every other member of our community
who hears about it. It is just one of these things that make us all a little
more uncertain in our lives and feel unsafe on the street.
...
[You] will attend and actively participate in such programs as may be
recommended by the probation officer for substance abuse. You will
abstain absolutely from the consumption of alcohol and non prescribed
drugs including marijuana.
¶ 29
The victim impact statement prepared by Ms. M. revealed her terror that her
unborn baby had been injured. She has experienced nightmares since the assault.
THE OFFENDER'S BACKGROUND
¶ 30
Lee Marvin Payne is 25 years of age. At the time of the offences, he was 22-23
years of age.
¶ 31
The offender was on probation at the time of the sexual crimes.
¶ 32
The accused attained a grade twelve education in Newfoundland. He moved to
Ontario in 1993. For a two-year period, Mr. Payne lived with Betsy Andrade. The
couple had a baby daughter in early 1997.
¶ 33
The offender is unskilled. For two years prior to his 1997 robbery sentencing, he
worked for the same employer and was described as an "excellent worker".
¶ 34 After the offender's arrest in 1998, police investigators interviewed Mr. Payne's
mother. She stated that her son had never been in trouble prior to moving to Ontario and
that he was no longer "in his right mind". Ms. Payne related to the police that she had
told her son that she was prepared to take steps to have him committed for which he
thanked her. She added that the accused told her he would kill himself if he got out of
jail.
¶ 35
On the date of Mr. Payne's apprehension, September 1st, 1998, he provided an
inculpatory videotaped statement to the authorities. Captured on video, prior to the
interview itself, were attempts by the offender to strangle himself. A subsequent attempt
at self-strangulation was made later the same day. Dr. Hector described this behaviour as
physically self-injurious evidencing suicidal tendencies.
¶ 36
When interviewed, the accused's brother, with whom the accused lived for a time
in Ontario, disclosed to the police that the offender was "heavily into booze and drugs".
Ms. Andrade, the accused's common law spouse, described the offender as often taking
off at night for hours drinking in the park.
¶ 37
The defence filed a number of character letters from persons familiar with Mr.
Payne. Some of the authors had not had contact with the offender for some years. The
letters represented Mr. Payne to have been a solid student, not in trouble, good-hearted, a
person who was helpful and dependable and trustworthy.
THE DANGEROUS OFFENDER APPLICATION
¶ 38 In April of 1999, prior to the accused's plea, the Crown obtained an opinion
relating to Lee Marvin Payne from a psychiatrist, Dr. Peter Collins. Although Dr. Collins
was provided extensive documentary material regarding this case, he did not examine the
offender and did not purport to give a diagnosis. In his April 12, 1999 report, the expert
stated:
I have not assessed Lee Marvin Payne therefore I cannot provide a
diagnosis. Upon review of the material provided it would be reasonable to
conclude that this man may have a paraphiliac (sexually deviant) disorder.
Payne's behaviour is consistent with what is known in the academic
literature - most sexually deviant men do not "specialize" in one deviant
focus but can have multiple paraphiliac interest. In regards to the accused,
he may have exhibitionism coupled with biastophila (paraphiliac coercive
disorder).
Fantasy is the driving force behind most forms of sexually deviant
behaviour. In reviewing the statements of the victims, it appears that
Payne is fantasy motivated. This is consistent with a paraphiliac focus.
A reliable predictor of future behaviour is a past history. Although they
occurred over a relatively brief period of time, Payne sexually assaulted
multiple victims. Other risk enhancing features include a history of
previous violence, a relatively young age at the time of his first offence,
relationship instability, employment problems, substance abuse and prior
supervision failure. This constellation of risk enhancing features means
that the diagnosis of a Personality Disorder has to be ruled out.
¶ 39
Following the January 17, 2000 pleas of guilt by Lee Marvin Payne to three
serious personal injury offences (counts #1, 3 and 6), the Crown moved for an assessment
order pursuant to s. 752.1 on the basis of reasonable grounds existing to believe the
accused might be found to be a dangerous offender or a long-term offender. The
application was unopposed and, on January 26th, 2000, Mr. Payne was remanded for a
period not exceeding sixty days, commencing February 9th, in the custody of Dr. Ian
Hector at the Penetanguishene Mental Health Centre.
¶ 40 Dr. Hector provided an assessment report to the court in late April,
2000. Arrangements were made by the defence for a psychological examination of Mr.
Payne on April 25th and May 29th, 2000 at the Maplehurst Detention Centre.
¶ 41
On June 14th, 2000, James M. Flaherty, the Attorney General of Ontario, signed
a consent authorizing the prosecution's application to have Lee Marvin Payne declared a
dangerous offender within the meaning of s. 753(1) of the Criminal Code.
¶ 42
On October 6th, 2000, the Crown filed a formal application with the court for an
order pursuant to s. 753 of the Code that the accused be declared a dangerous offender
and for the imposition of a sentence of an indeterminate period of detention in the
penitentiary in respect of the three crimes of sexual assault to which he had pleaded
guilty. The basis of the application tracked the statutory grounds set out in paragraphs
753(1)(a)(i)(ii)(iii) and (b):
1.
2.
LEE MARVIN PAYNE has been found guilty of the offences of
sexual assault causing bodily harm and sexual assault which are
serious personal injury offences as defined in Section 752(a) of the
Criminal Code and LEE MARVIN PAYNE constitutes a threat to
the life, safety, physical or mental well-being of other persons on the
basis of evidence establishing a pattern of behaviour by LEE
MARVIN PAYNE, of which the offences for which he has been
convicted form a part, showing a failure to restrain his behaviour and
likelihood of causing death or injury to other persons, or of inflicting
severe psychological damage on other persons, through failure in the
future to restrain his behaviour.
LEE MARVIN PAYNE has been found guilty of the offences of
sexual assault causing bodily harm and sexual assault which are
serious personal injury offences as defined in Section 752(a)of the
Criminal Code and LEE MARVIN PAYNE constitutes a threat to
the life, safety, physical or mental well-being of other persons on the
basis of evidence establishing a pattern of persistent aggressive
behaviour by LEE MARVIN PAYNE, of which the offences for
which he has been convicted form a part, showing a substantial
degree of indifference on the part of LEE MARVIN PAYNE
respecting the reasonably foreseeable consequences to other persons
of his behaviour.
3.
4.
LEE MARVIN PAYNE has been found guilty of the offences of
sexual assault causing bodily harm and sexual assault which are
serious personal injury offences as defined in Section 752(a) of the
Criminal Code and LEE MARVIN PAYNE constitutes a threat to
the life, safety, physical or mental well-being of other persons on the
basis of evidence establishing any behaviour by LEE MARVIN
PAYNE, associated with the offences for which he has been
convicted, that is of such a brutal nature as to compel the conclusion
that LEE MARVIN PAYNE's behaviour in the future is unlikely to
be inhibited by normal standards of behavioral restraint.
LEE MARVIN PAYNE has been convicted of the offences of sexual
assault causing bodily harm and sexual assault which are serious
personal injury offences as defined in Section 752(b) of the Criminal
Code and LEE MARVIN PAYNE, by his conduct in any sexual
matter including that involved in the commission of the offences for
which he has been convicted, has shown a failure to control his
sexual impulses and a likelihood of causing injury, pain, or other evil
to other persons through failure in the future to control his sexual
impulses.
THE PSYCHIATRIC PROFILE
Overview of Diagnosis
¶ 43 Dr. Ian Hector, a forensic psychiatrist, and Dr. Percy Wright, a psychologist,
provided expert testimony in the sentencing hearing. Both doctors practice at the Oak
Ridge Division of the Mental Health Centre Penetanguishene. The experts were directly
involved in the multi-disciplinary forensic assessment of the accused for a 60-day period.
¶ 44 Dr. Hector diagnosed the accused as having both paraphilia (heterosexual
hemophilia) and a substance abuse disorder (polymorphous). Mr. Payne ranks at the low
end of the average range of intelligence. Dr. Wright found the offender to have the
reading capacity of a grade five student.
¶ 45 Paraphilia is a condition in which an individual experiences sexual arousal in
response to inappropriate objects either by gender or age or the nature of the sexual
activity. In Mr. Payne's case, he has an attraction to girls between the ages of 13 and 17
years. In response to Crown counsel's observation that two of the offences involved
females aged 45 and 58 years, Dr. Hector stated that the presence of the disorder suffered
by the accused does not exclude the capacity to act out in other circumstances.
¶ 46 Dr. Hector testified that the accused's paraphilia exists independently of the
substance abuse disorder. When asked if the offender would still suffer from the
paraphilia if he were free of substance abuse, the doctor replied: "Yeah, probably so".
¶ 47 Dr. Hector testified that there was no evidence that the accused suffers from a
personality disorder. The expert added: "... the absence of a personality disorder
improves the clinical prognosis".
¶ 48 The doctor noted that the breakup of Mr. Payne's common law relationship and
Ms. Andrade's return to New Brunswick with the couple's daughter constituted a
significant loss for the offender and an important stressful life experience.
¶ 49
An aspect of Dr. Hector's diagnosis was an attempt, in numerical terms, to
quantify the accused's adaptive functioning. A score of 100 describes an individual in
perfect mental health and in perfect personal and social and occupational function. A
score of zero represents a person who is almost completely impaired by the existing
mental illness. Mr. Payne was assigned a score of 45 representing an individual whose
capacity to function socially and interpersonally "is significantly impaired" by the
existing psychiatric disorder. The doctor added that the scoring describes "a relatively
good level of function, but function impaired by psychiatric disorder".
¶ 50
Dr. Hector defined sexual sadism as a paraphilia involving the deliberate
infliction of pain and suffering or humiliation with the purpose of obtaining sexual
arousal. At times, the behaviour may include torture, mutilation or death. The doctor
described fragments of behaviour in Mr. Payne that were "certainly worrisome" in regard
to sadistic tendencies. However, there was not enough behaviour to support a diagnosis
of sexual sadism. Dr. Wright strongly suspects, based primarily on the scripted nature of
some of the offences, their repetitive nature, and the incidence of choking, that there
exists a risk of sadistic process in Mr. Payne. He too could not diagnose sadism. Both
Dr. Hector and Dr. Wright believed the sexual preference assessment test, declined by
Mr. Payne, would have revealed important information as to the presence of sadistic
tendencies.
¶ 51
Dr. Hector testified that substance abuse has been a major personal issue for the
accused for a long interval causing him considerable instability. The expert sees alcohol
as a very significant dis-inhibitor or releasor of aggressive behaviour. The continued use
of substances is a major risk factor for Mr. Payne.
Risk Assessment
¶ 52
The experts undertook various diagnostic assessments in an effort to predict
future risk. Mr. Payne refused to cooperate in a sexual preference assessment, a
phalometric test, considered extremely important in the assessment of paraphilia. This
assessment can identify an individual who may have a predisposition towards behaving in
a sexually violent way. Dr. Hector's view was that the test would enrich the clinical
diagnosis and help identify some treatment options.
¶ 53 On the PCLR (psychopathy checklist revised) test, considered one of the most
reliable predictors of a potential for re-offence, Mr. Payne was scored at 17 out of a total
of 40, a score at the lower end of the average range. Dr. Hector testified:
Psychopathy, as a trait, is recognized by all the experts, authors in the field
of risk assessment, to be the most reliable and the most robust predictor of
re-offence and of a disposition towards criminal behaviour. And if Mr.
Payne, for example, had scored past 30 on this particular test, he would be
described as meeting the criteria of psychopathy and the potential for
serious violence and a serious risk for re-offence would be greatly
exaggerated. He did not. He scored 17, which is well below the cut-off for
the diagnosis of psychopathy.
...
So that was a good risk factor in respect of this particular man and one of
the reasons that we did not make a diagnosis of personality disorder. In
fact, on a historical basis alone, there was nothing to lead us to making a
diagnosis of, for example, anti-social personality disorder.
¶ 54
Dr. Hector related to the court that the VRAG (violence risk appraisal guide) test
holds validity and reliability in predicting risk of re-offence. In Mr. Payne's case, he was
scored in the fifth or middle of nine categories of re-offence. The doctor explained:
The ninth, of course, is the highest level of risk. The lowest would be
virtually no level of risk. The middle is a moderate level of risk. It's
actually stated to be 59 percent of individuals who score similarly to Mr.
Payne, can be predicted to re-offend violently within a period of ten years
following discharge. Of course, 60 percent potential for re-offence is a
substantial potential for re-offence and it does describe, I think, what we
recognize in respect to the clinical diagnosis.
...
The violence risk appraisal guide has two components. The first is the
PCLR, psychopathy checklist and the second are a number of historical
factors that have been identified by their research as predicting a potential
for re-offence.
...
A combination of those two data sets combined to provide the ultimate
score on that instrument. Now, to this point, our assessment noted the low
score on the psychopathy checklist and the moderate score on the violence
risk appraisal guide.
...
And the significance of that particular score is that 59 percent of
individuals who score similarly, will have re-offended violently by the end
of ten years.
¶ 55 Dr. Hector also undertook the RRAS (Registrant Risk Assessment Scale)
analysis in an effort to substantiate the clinical assessment of risk. Mr. Payne scored at
77 - the lower end of the high risk category for re-offence (a range of 74 to 100). The
psychiatrist defined "high risk" as "a potential [for] re-offence that approaches 80 percent
potential" - a very high frequency - a very substantial risk of re-offence. In terms of the
likelihood of re-offence by way of violent sexual acts, Dr. Hector stated that the potential
would be greater than 50 percent. The doctor includes in the descriptor "violent" any
threat of violence or any application of non-consensual force.
¶ 56
Dr. Hector testified that there exists a very significant or remarkable potential for
re-offence with a paraphilia disorder. Dr. Wright agreed with this opinion. Dr. Hector
stated that an individual exhibiting one paraphilia tends to be confined to that one
behaviour. Accordingly, in his view, were Mr. Payne to act out again "it will be as he has
done in the past". The expert described the offender's crimes as "indiscriminate and
opportunistic attacks upon women, and some of them quite aggressive attacks". In crossexamination, the doctor acknowledged that Mr. Payne's crimes reveal both acts of
exhibitionism and violent sexual attacks. The sexual preference assessment might have
been of "some real assistance in forming an opinion" as to what form of re-offence was
most likely.
¶ 57
Dr. Wright viewed Mr. Payne to be at high risk to reoffend with sexual
offences. He is not safely releasable today. There is a lifetime risk with sex offenders
such as the accused.
¶ 58 Dr. Wright testified that exhibitionism is "the highest recidivism type of offence
in the sexual sphere". It is part of Mr. Payne's offence cycle - part of the buildup to the
commission of more violent sexual activity. It is very difficult to control and
exhibitionists graduate to rape more frequently than those suffering other sorts of
paraphilia. Dr. Wright stated that repeat sexual violence offenders have a relatively high
recidivism rate. In the instance of more violent sexual offending, late teens is the point of
peak risk reducing thereafter with a dramatic decrease after age 50 years.
Treatment Potential
¶ 59
Dr. Hector was asked to address the treatment potential for the offender:
Well, Mr. Payne has two conditions, in my view, contributing to the
present situation. The first is the paraphilia and the second is the substance
use. The blunt reality is that currently science has no effective treatment,
psychological or medical, for the paraphilias, although an enormous
amount of research is being conducted in an effort to find something that
may diminish the potential for acting out. I'm thinking here particularly of
the use of sex hormone suppression, for example, to diminish libido and
therefore diminish the propensity to act out or the use of the SSRI, the
seraguine reactive inhibitors, medications that are most commonly used as
anti-depressants, but they have the side effect of suppressing libido and
that particular property is being used by a number of centres, Dr. John
Bradford, for example, in Ottawa, in an effort to suppress libido and
achieve some medical control of the tendency to act out, with some
promise, but as yet, not really established. A wide range of psychological
therapies have been attempted. None of them have been shown to have
any lasting benefit and the general consensus at the moment is that we
don't - we - medicine and psychiatry --- doesn't have much to offer in the
treatment of these particular disorders. Substance [ab]use disorder, we
know has a very limited prospect in terms of treatment.
...
Failure in most programs of treatment in respect to substance use is
exceedingly high.
...
Mr. Payne told us quite frankly that he had little interest in seeking
professional assistance with respect to this problem and although we know
he has attended AA on a couple of occasions, his attendance has been
incomplete and I think without much enthusiasm on his part. So he hasn't
yet shown the least intention to address this issue and I think that's a major
risk factor for him. So he has two conditions for which the - which we
have not much to offer right at the moment.
...
I said it's imperative that Mr. Payne acknowledge and accept formal
treatment for his substance use. I think it's imperative that he accept sexual
preference assessment, so that we can form an accurate clinical opinion
and formulate a treatment plan in relation to an adequate assessment. I
think that it's important that he commit himself to a program of treatment,
but I think that even with all of that, he still is a less serious risk than some
of the men that I have had occasion to examine.
¶ 60
Dr. Wright's opinion included the view that Mr. Payne continues to engage in
denial minimization regarding the sexual offences:
He was really quite forthcoming when describing his early history, his
employment history, his relationship, his substance abuse, and to his credit,
was seemingly involved in that part of the assessment. Where that
dissolved quite completely was when discussing issues surrounding the
sexual offences or the offences themselves. There was very little openness
in that domain, in my opinion.
...
Oh, there are denial minimization processes, unfortunately apparent in Mr.
Payne in a range of domains, even the substance abuse.
...
Absolutely, in terms of denial of the severity of the problem and denial of
the repetitive nature of the problem, and his inabilities to control it on his
own, and him stating that he doesn't need substance abuse counselling, that
is an ongoing denial process, in my view, and not dissimilar to his
approach to not owning - or not owning the abhorrent sexual desires.
¶ 61 Dr. Wright reported that Mr. Payne did not exhibit in the assessment the insight
or appreciation required to combat the substance abuse disorder. The doctor described
the accused's approach as limited to a stated acknowledgement that alcohol would get
him in trouble so he would simply quit drinking but: "I don't need treatment". The
expert also noted the accused's poor follow-through for alcohol treatment following his
1997 release from custody. Dr. Wright noted that the accused rejects the need for
professional help and has not taken the first step toward curing the substance abuse
problem.
¶ 62
Dr. Wright viewed anger management as essential for Mr. Payne:
I think that anger is a problem for Mr. Payne. I think part of his substance
abuse stems from that and I think that in terms of eroding one's controls,
especially for a hurtful type of offence, limitations in anger management
are a very real risk factor that Mr. Payne needs to address and not sort of
stick to it's only substance abuse, it's just stress. We need a number of - we
need recognition from Mr. Payne in a number of areas, that this is a
particular type of offence, this is a particular sexual act. There is - clearly
anger is a component. There are a range of things that Mr. Payne needs to
accept and address and I think anger is one of them.
¶ 63
Dr. Wright provided his opinion on the efficacy of treatment in this case:
I believe that sexual offender treatment, when it's done correctly, which is
both while incarcerated and with follow-up community treatment, can
reduce recidivism rates and prolong survival time. But I would agree with
the sceptics that it is not a black and white cure or even a clear change to
no risk. There is still a very clear risk in repeat sex offenders and our
ability to change that risk is not clear cut. And the reason that that is, I
believe, is it's not like a treatment you get for schizophrenia and you
receive a drug. It requires the patient be working with you. It requires the
patient be able to learn and appreciate a range of ideas, such as the state
effect that we talked about earlier, but there are other more complicated
things that the patient needs to learn. And more importantly, that the
patient not be just playing along to manipulate you and that has become
more and more recognized, that only in-patient treatment, whether it's in a
secure hospital or in penitentiary, gives the more manipulative patient the
opportunity to do that instead of really change.
...
There is good research that intervention, if it's only performed inside, can
increase risk with a range of offender types, sex offenders in particular.
...
There would appear, for example, for people who remain in the Toronto
area, there would appear to be good continuity in terms of the availability
of what we call relapse prevention, which is a type of therapy designed to
prevent the person from getting back into their offence cycle. And there is
a good opportunity to attend substance abuse treatment within the
city. Quality control will fluctuate. Outside the city, specific sex offender
treatment programs are, to my understanding really very lacking. They are
arranged through the - with the exception, of course, being the Kingston
and Kingston Region, where they are very rich in resources and skill in the
sex offender domain.
...
He would, by necessity, be starting at the bottom of a tiered treatment
system.
...
In terms of our current knowledge of risk reduction strategies and
treatment, it's my opinion that the Canadian penitentiary system is state of
the art, when you compare it to the United States, just as an example. So
anyone who goes through that system with a sexual offence problem will,
at some point, as their release date approaches, be exposed to that. As I
said earlier, in order for that to translate into benefit, it's my opinion that
that must be bridged with aggressive community treatment and that is
where the grey area comes in, as to where he's living, what's available,
whether the high risk offender program is still available through CSC,
Correction Services Canada. That - I guess I'm hedging, because it
involves some speculation as to what exactly will happen at that transition
point from inside to outside.
Q.
Okay. But I appreciate that no one has a foolproof crystal ball, sir,
but at this particular stage, is there a likelihood of his failure to
restrain his sexual impulses if released, even with treatment?
A.
Oh, certainly.
¶ 64 Dr. Wright added that the combination of problems presented by Mr. Payne's
condition is not unusual for the federal system and in particular the Kingston and
Warkworth Institutions specializing in sexual offender treatment. A penitentiary
sentence of sufficient length would be required to allow for a year of classification and
waiting, followed by three years of treatment in one of these institutions, in order for the
offender to move through the substance abuse, sexual offender, and anger management
treatment modules. The accused would be starting at the very bottom given his current
level of insight. It is difficult to predict how well he would do. Toward the end of the
incarceration period, the accused would need to demonstrate behavioral controls and
substance abuse controls within a 24-hour supervised living setting such as the Keele
Regional Centre before parole to a half-way house environment. The doctor expressed
the view that in-house treatment without community treatment follow-up can actually
increase the risk of sexual re-offence. The doctor stated his bias that: "... repeat sex
offenders would benefit from as long a supervision as financially viable". The monitoring
in the community would need to be directed by a treatment professional familiar with
relapse prevention and the kind of risks which need to be avoided.
¶ 65
Dr. Wright found Mr. Payne to exhibit a lack of psychological mindedness in his
personality testing. By this, the doctor meant a lack of inward reflection and
understanding of his own internal complexities. This can make the treatment progress
more slowly. As well, the expert noted Mr. Payne's impulsivity - a trait that may
decrease with age. This characteristic could make it difficult to track and monitor the
accused.
¶ 66
In cross-examination, Dr. Hector acknowledged that Mr. Payne had apparently
not acted out for various periods of time. This reflected self-restraint. The expert
observed that for persons suffering paraphilia:
... with certain levels of surveillance of that sort, they can suppress their
impulse to act for quite significant periods of time.
¶ 67 Dr. Hector reported that Mr. Payne cooperated with the assessment team and
followed the rules, regulations and procedures of the ward extremely well. He displayed
no inappropriate behaviour of any sort during his admission. Dr. Wright emphasized that
the accused interacted well with staff and inmates during the assessment remand. Dr.
Hector noted that Mr. Payne has held employment through turmoil and has shown the
capacity to maintain a stable relationship with a woman. These factors speak to potential
for being able to maintain control of himself.
¶ 68
Dr. Hector formed the view that the accused seemed able and willing to follow
directions from probation services adding:
I would say that is a favourable prognostic indicator, yes. I would like to
see Mr. Payne accept a greater level of personal responsibility for his
behaviour and engage more actively in a variety of treatment programs,
particularly in respect to substance use, but he certain - he does appear to
have been compliant with some supervision.
¶ 69
Dr. Hector agreed with the following passage from Dr. Wright's report:
Mr. Payne's statements to investigating officers are consistent with a
diagnosis of paraphilia, which in combination with his well established use
of substance abuse to cope with stressors, likely have contributed to his
episodic offending pattern. The personality variables described above will
make therapeutic intervention challenging and slow. However, the
relatively low PCLR score and a certain degree of compliance with
authority figures, point to his potentially being a good supervision
candidate. Aggressive monitor is clearly needed, due to his substance
abuse and tendency to under report his internal struggles and urges. When
discussing this issue with Mr. Payne, he did acknowledge that he felt
lengthy and tight supervision in the community after a fixed sentence
would be helpful to him."
The expert saw Mr. Payne's acknowledgement of the need for lengthy and tight
supervision as a step toward taking personal responsibility for his behaviour.
MR. PAYNE'S LETTERS
¶ 70 Lee Marvin Payne did not testify in this case. He authored two letters - one
created prior to the hearing and the second after the first day of the proceeding.
¶ 71 The accused expresses remorse and empathy for the victims of his crimes. The
offender acknowledges the real physical and lasting mental consequences for the victims.
¶ 72 Mr. Payne reflects in his writing the pain and suffering caused his daughter, his
family, and his former common law spouse. The offender states that he is sorry and
disgusted with himself.
¶ 73
The accused submits that the time in custody has caused him to be more
reflective regarding his criminality. Mr. Payne expresses a realization that he does not
need drugs and alcohol. He claims to be accepting of professional help for this
problem. He notes as well the abstinence from substance abuse during this presentence
custody exceeding two years.
¶ 74 Mr. Payne states a willingness to obtain more help, to "do some programs for the
areas of my need" and to take such medication as may be required.
OVERVIEW OF PART XXIV OF THE CRIMINAL CODE
¶ 75
Prior to the enactment of Bill C-55, An Act to amend the Criminal Code (High
Risk Offenders), the Corrections and Conditional Release Act, the Criminal Records Act,
the Prisoners and Reformatories Act and the Department of the Solicitor General Act,
S.C. 1997, c. 17, 45-46 Eliz II, proclaimed August 1st, 1997, there was no long-term
offender designation. As well, where the sentencing court found the accused to be a
dangerous offender, the court had a discretion to sentence the offender to an
indeterminate period of incarceration in a penitentiary in lieu of any other sentence that
might be imposed for the offence or to a finite or determinate term of imprisonment up to
the maximum term of imprisonment set for the serious personal injury offence. With the
legislative initiative to Part XXIV of the Code, the court is now required to sentence a
person found to be a dangerous offender to an indeterminate period of imprisonment.
¶ 76
Under the previous dangerous offender regime, the accused sentenced to an
indeterminate term of imprisonment as a dangerous offender was subject to an initial
parole review by the National Parole Board (the Board) as soon as possible after three
years from the day on which the offender was taken into custody and thereafter not later
than every two years after the previous review. The Bill C-55 amendment, the current
section 761(1), delays the initial parole review to a point seven years after the offender is
first taken into custody.
¶ 77 The coincidence of a deletion of the sentencing option of a determinate sentence
for a dangerous offender, and the inclusion of the long-term offender status with a parole
supervision period up to 10 years after completion of the finite term of imprisonment for
a serious personal injury offence, encourages close scrutiny of the essential differences
between the two current schemes.
¶ 78
In Regina v. Walker, [2000] O.J. No. 4091 (C.A.) at para. 10, the court stated:
It should be recalled that an indeterminate sentence is not a perpetual
sentence. If the appellant receives proper treatment, a supervised release in
the future is a possibility.
¶ 79
The dangerous offender provisions are designed to, above all, provide protection
to the public: Lyons v. The Queen (1987), 37 C.C.C. (3d) 1 (S.C.C.) at 17, 22 per La
Forest J.; Regina v. Forster (1995), 82 O.A.C. 78 (C.A.) at 79 per curiam. On a review of
the jurisprudence, it is at once evident that those individuals found to be dangerous
offenders are frequently persons suffering a serious personality disorder (Regina v.
Pelland (1997), 99 O.A.C. 62 (C.A.); Regina v. Eakin (2000), 132 O.A.C. 164 (C.A.);
Regina v. S.(C.L.) (1999), 43 O.R. (3d) 143 (C.A.); Regina v. Forster, supra; Regina v.
Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.); Regina v. Sullivan (1987), 37 C.C.C.
(3d) 143 (Ont. C.A.); Regina v. Lewis (1984), 12 C.C.C. (3d) 353 (Ont. C.A.); Regina v.
Crosby (1983), 1 C.C.C. (3d) 233 (Ont. C.A.)), and/or persons who have previously been
incarcerated for lengthy periods of time (The Queen v. Currie (1997), 115 C.C.C. (3d)
205 (S.C.C.); Regina v. S.(C.L.), supra; Regina v. Lewis, supra). That is not to say that
either is a necessary prerequisite to a dangerous offender conclusion.
¶ 80
The dangerous offender regime is meant to define "a very small group of
offenders" for whom preventive incarceration is necessary: Lyons v. The Queen, supra at
29; Regina v. Neve (1999), 137 C.C.C. (3d) 97 (Alta. C.A.) supra at 122-3 per curiam. In
the Lyons decision at 30, La Forest J. noted:
Evidence before the court indicated that between 1980 and 1986, only six
dangerous offenders were granted day parole, two of whom had served 10
to 15 years, three 15 to 20 years, and one, more than 20 years.
In the Neve case at 107-108, the court stated:
According to Crown records, since 1947 (the year in which predecessor
dangerous offender legislation first came into effect in Canada) until July
31, 1997, 219 offenders were designated dangerous offenders in Canada,
an average of approximately 4 per year. Other data indicates that between
1978 and 1986, that number increased to an average of 7 per year.
In Regina v. Poutsoungas (1989), 49 C.C.C. (3d) 388 (Ont. C.A.) at 391, there is
reference to expert testimony before the court that those serving an indeterminate
sentence serve, on average, 17 years in custody.
¶ 81
Dangerous offenders are persons who have exhibited a pattern of behaviour
which is substantially or pathologically intractable - these individuals are not inhibited by
normal standards of behavioral restraint: Lyons v. The Queen, supra at 23,
29. Experience has shown that those serving an indeterminate sentence in a penitentiary
generally receive treatment only a few months prior to release (Regina v. Forster, supra at
79-80; Regina v. Poutsoungas, supra at 391) having been jailed in protective custody for
years without treatment or parole (Regina v. Langevin, supra at 363). This accords with
the testimony of Dr. Wright that sexual offender risk reduction strategies and treatment in
the Canadian penitentiary system most frequently occur toward the approach of an
offender's release date.
¶ 82 In Regina v. McLeod (1999), 136 C.C.C. (3d) 492 (B.C.C.A.) at 504-5, Prowse
J.A. observed:
In coming to these conclusions, I am mindful of the background and
legislative history leading to the revisions to the dangerous offender
provisions of the Code and the introduction of the long offender
provisions. A key factor in that background was the Report of the
Federal/Provincial/Territorial Task Force on High Violent
Offenders: Strategies for Managing High Risk Offenders
(Victoria: Department of Justice, January 1995) (the "Report"). Amongst
other things, the Report stressed that there was a need for legislation to
deal with some categories of offenders with an emphasis on paedophiles),
who do not meet the criteria of dangerous offenders, but, who, nonetheless,
are capable of harming numerous victims as a result of their chronic
criminal behaviour. At p. 19 of the Report, which specifically deals with
the proposed new classification of long-term offenders, the authors state as
follows:
A sentencing option providing for long term supervision would be
aimed at cases where an established offence cycle with observable
cues is present, where a long term relapse prevention approach may
be indicated. The success of an LTS (long term supervision) scheme
based on the relapse prevention model rests on several key factors.
a.
b.
The measure should be focused on particular classes of
offender, inclination to make long-term supervision widely
available should be resisted as costly, unwarranted in most
cases, and as contributing to "net widening". The target group,
and thus the expectations of the scheme, should be well
defined;
The criteria should selectively target those offenders who have
a high likelihood of committing further violent or sexual crimes
but who would not likely be found to be a Dangerous Offender
... [Emphasis added by Prowse J.A.]
In Regina v. Guilford, [1999] O.J. No. 4894 (S. Ct. J.) at para 32, I too quoted from the
Report:
"Long term supervision" (LTS) should have as its objective the enhanced
safety of the public through targeting those offenders who could be
effectively controlled in the community, based on the best scientific and
clinical expertise available. Such control may be the most effective
approach in helping to reduce violent criminal acts, fostering and
maintaining pro-social behaviour, and reducing the adverse impact of
incarceration. Supervision under such a scheme should be designed to
avoid long term or indefinite incarceration: the focus should be, instead, to
exert all possible effort, short of incarceration, to stabilizing the offender in
the community, with particular attention to any precursors to re-offending
that may be identified. LTS is based on the assumption that there are
identifiable classes of offenders for whom the risk of re-offending may be
managed in the community with appropriate, focused supervision and
intervention, including treatment.
¶ 83
A Federal Department of Justice publication Bill C-55: Dangerous Offenders,
March 1997, stated:
There are differences between the LTO and D.O. criteria. Whereas the
issue with Dangerous Offenders is their incorrigibility - for example, their
inability to control their sexual impulses and the poor prospects for
rehabilitation - with Long-Term Offenders there is more hope. While it
may be established that there is a "substantial risk that the offender will reoffend", there is also "a reasonable possibility of eventual control of the
risk in the community". These factors will have to be assessed in the
hearing.
...
When the court finds the offender to be a Long-Term Offender, it will
impose the "regular" sentence for the triggering offence and then add a
period of "Long-Term Supervision" to the sentence. This period may be
up to 10 years and it involves a kind of probation-like supervision, except
that the supervision will be the responsibility of the National Parole Board
and the Correctional Service of Canada. The philosophy here is that the 10
years (or less) will allow correctional authorities to closely control the
offender in his eventual transition to the community. Studies show that
"relapse prevention" strategies, applied over an extended period, can be
effective. Please note that the Long-Term Supervision period only begins
when the offender has fully completed his sentence of incarceration,
including parole.
...
... Long-Term Offender sentencing - including the "order" of long-term
supervision - is a limited, specialized measure and the supervision period is
very much related to relapse prevention strategies.
PROCEDURAL ISSUES
Summary Conviction
Offences Before the Superior Court
¶ 84 Late in the proceedings, I raised with counsel my jurisdiction to preside with an
indictment containing summary conviction offences. Mr. Payne pleaded guilty to three
indecent act counts contrary to s. 173 of the Code. Committing an indecent act is a
"straight" summary conviction offence with no right in the Crown to elect to proceed by
indictment.
¶ 85 To set the context more fully, there were originally two informations in the
Ontario Court of Justice - one alleging sexual assault offences and breach of probation
where the prosecution had elected to proceed by indictment (the sexual assault
information) and a second charging document alleging the indecent act offences (the
indecent act information). Mr. Payne had elected trial by judge and jury on the matter in
the sexual assault information. Near the end of an abbreviated preliminary inquiry on the
sexual assault indictment, in which the accused waived the preliminary on all counts
except the present count #6, the justice presiding at the preliminary inquiry, at the request
of the Crown, purported to have Mr. Payne "arraigned" on the indecent act
information. Once the charges were read, the court inquired:
Do you want me to exercise my jurisdiction, even though these are
summary matters, to send them along? What jurisdiction should I exercise
in this?
Neither Crown nor defence counsel were able to articulate any jurisdiction for the
Ontario Court to forward the indecent act charges to a superior court of criminal
jurisdiction. Counsel for Mr. Payne expressed interest in a "global type resolution"
involving all charges. On February 9th, 1997, the accused was committed for trial on the
sexual assault information and remanded on the second information to February 12th to
allow counsel to further consider the jurisdictional issue with the justice observing that he
was of the view that the summary conviction offences would have to remain before the
Ontario Court pending a resolution in the high court respecting the sexual assault charges.
¶ 86
While I do not have a transcript of what transpired on February 12th, 1997, the
justice endorsed the information "to follow sexual assault charges" with an apparent
remand of the accused to an Assignment Court date before this court. Mr. Derstine
recalled that on his appearance on the February 12th date, he attempted to secure an
"administrative transfer" of sorts in regard to the indecent act charges in order to effect
before one court a resolution of all matters short of a full trial.
¶ 87
After the preferral of two indictments before this court continuing to maintain
separation between indictable and summary conviction offences, on October 1st, 1999,
the Crown preferred the present indictment containing an admixture of counts upon
which there had been a committal for trial by judge and jury together with the summary
conviction offences which materialized here by means which still remain somewhat of a
mystery to me. To complete the history, in January of 2000, after about ten appearances
before this court, Mr. Payne re-elected on the indictment for trial by judge alone and
pleaded guilty to the counts earlier described. This transpired some months before I
raised the issue of my jurisdiction.
¶ 88
Section 468 of the Code states that every superior court of criminal jurisdiction
has jurisdiction to try any indictable offence.
¶ 89
In Regina v. Allen, [2000] O.J. No. 4150 (C.A.), the court reviewed a record
where the superior court of criminal jurisdiction, after a preliminary hearing, conducted a
trial of three indictable offences and a charge of personating a police officer which is a
summary conviction offence. On appeal, at para. 5, Feldman J.A. stated:
It is clear that a procedural error was made when a preliminary hearing was
held on the summary conviction offence and the appellant was bound over
for trial in an indictment before the superior court. The jurisdiction of the
superior court is to try indictable offences only, not summary conviction
offences. The Supreme Court of Canada decision in R. v. Clunas, [1992] 1
S.C.R. 595 deals with the issue of joinder of summary and indictable
offences. This may be done only when the accused has waived both the
right to be tried in a higher court and the preliminary inquiry. That did not
occur in this case. The conviction for impersonating a police officer is
therefore quashed.
¶ 90 While the statement in Allen appears dispositive of the issue, Mr. Derstine
pointed the court to the following statement in Clunas v. The Queen (1992), 70 C.C.C.
(3d) 115 (S.C.C.) at 126 per Lamer C.J.C.:
We must, nevertheless, keep in mind the difference of the process as
regards indictable offences and summary convictions. It is obvious that the
fact that indictable offences must, on some occasions, and may in others,
be tried by a judge and a jury, is an impediment to proceeding jointly when
before that court with a summary conviction.
Secondly, the fact that preliminary inquiries are available for most
indictable offences is another impediment for the joinder of trials. I would,
therefore, adopting the suggestion of the Law Reform Commission in its
working paper, state the following:
... summary conviction offences should be joined with indictable
offences only where the accused has waived the right to be tried in a
higher court (either with or without a jury) and has also foregone his
right to a preliminary hearing. In other words, joinder may occur
only where trial on the indictable offence is to take place before the
provincial court.
This will occur only when on the indictable offence the accused either will
have chosen a trial by Provincial Court judge under Part XIX or, having
chosen a trial by judge under Part XIX, has waived his preliminary. As
suggested by the Law Reform Commission, in the event of any conflict as
to the applicable procedure, indictable offence procedures should apply
and crimes triable by jury may be joined with those carrying no right to a
jury trial (or preliminary inquiry) provided the accused has consented to
the trial of both matters in a forum without a jury and without a
preliminary inquiry.
I find support in taking this direction from a resolution passed by the
Uniform Law Conference of Canada (which is composed of all Deputy
Ministers of Justice or Deputy Attorneys-General, representatives of the
Canadian Bar, and other parties appended to the justice system), in August,
1988, in the course of their proceedings of the 70th annual meeting of that
body. It was resolved that the Criminal Code be amended to allow for the
joinder of summary convictions and indictable offences, with the indictable
procedure to then apply.
There remains the problem of appeals. Of course, in cases where an issue
common to both informations has gone to the summary conviction appeal
court and the Court of Appeal, common sense would dictate that the
summary conviction court of appeal should await decision by the higher
court.
(emphasis added)
¶ 91 It is submitted that the highlighted passage indicates that where an accused has,
under Part XIX, elected trial by a judge of this court sitting without a jury and has waived
his preliminary hearing on the indictable offences faced, those offences may be joined
with summary conviction offences in a charging document before the superior court of
criminal jurisdiction. Although this interpretation of Clunas is broader than the
restrictive holding in Allen, I see some merit in the defence submission. However, in Mr.
Payne's case, a preliminary inquiry was held on one of the indictable offences and, at the
time of "transfer" of the summary conviction offences to this court, there was an
outstanding election for trial by judge and jury on the indictable offences. Accordingly, I
am of the view that this court is without jurisdiction to try the indecent act offences
regardless of Mr. Payne's consent and pleas of guilt. No other statutory authorization or
historical exercise of the court's inherent jurisdiction powers was raised to found
jurisdiction.
¶ 92
The pleas on counts #8, 13 and 15 are struck and Information #09157 is ordered
returned to the Ontario Court of Justice for such action as the prosecution may see fit to
undertake.
¶ 93
The circumstances of the three indecent act transactions remain as relevant
evidence to the Part XXIV application of the Attorney General to have Mr. Payne
declared a dangerous offender.
Retroactivity of Bill C-55 Amendments
¶ 94
During the course of this proceeding, the court requested further submissions of
counsel respecting the statutory regime which should govern the sexual assault described
in count #6. The crime was committed on March 11th, 1997 prior to the August 1st,
1997 C-55 proclamation date. The remaining predicate offences founding the Crown's
application, counts #1 and 3, were committed in 1998.
¶ 95 In Regina v. Walker, supra at para. 10, the court left open the question of whether
the 1997 Criminal Code amendments ought to be afforded retroactive effect. While there
is authority espousing general support for application of the new provisions to crimes
committed prior to enactment where a benefit accrues to the accused (Regina v. George
(1998), 126 C.C.C. (3d) 384 (B.C.C.A.) at 395-6 per Donald J.A.), other authority
suggests that the long-term offender option should apply retroactively (Regina v. Neve,
supra at 117) while the earlier dangerous offender regime with the discretion to impose a
determinate or indeterminate sentence should continue to apply to all offences committed
prior to August 1st, 1997 (Regina v. Neve, supra at 117-118; Regina v. Morin, [1998] S.J.
No. 716 (Q.B.) at para. 3 per Gerein J.; Regina v. Peskoonas, [1999] A.J. No. 616 (Q.B.)
at para. 13 per Wilkins J.). I am in agreement with the approach of these authorities.
¶ 96
In this case, undoubtedly because of the existence of offences falling on either
side of the August 1st date, the Attorney General elected to withdraw the March 1997
sexual assault (count #6) as a predicate offence leaving that conviction as a relevant
factor in assessing the appropriate sentencing disposition for the 1998 sexual assaults.
WHETHER THE ACCUSED IS A DANGEROUS OFFENDER
¶ 97 The three indecent act transactions, reflecting exhibitionism paraphilia, while not
serious personal injury offences within the meaning of s. 752(a) of the Code, as a matter
of common sense, and on the basis of the expert medical evidence, are relevant to proof
of the existence of:
(1)
(2)
a past failure to control sexual impulses and a likelihood of causing
injury, pain or other evil to other persons through failure in the
future to control sexual impulses (s. 753(1)(b)), and
a pattern of repetitive behaviour showing a likelihood of the offender
causing injury to others or inflicting severe psychological damage on
other persons (s. 753.1(2)(b)(i)(ii)).
¶ 98
The sexual assault conviction described in count #6 and the two predicate
offences for the dangerous offender application (counts #1 and 3) are all serious personal
injury offences within the meaning of s. 752(a) and (b).
¶ 99 The basis of the Crown's application is premised upon ss. 753(1)(a) and (b) of the
Code:
(a)
The court may, on application made under this Part following the
filing of an assessment report under subsection 752.1(2), find the
offender to be a dangerous offender if it is satisfied
(i) that the offence for which the offender has been convicted
is a serious personal injury offence described in paragraph
(a) of the definition of that expression in section 752 and
the offender constitutes a threat to the life, safety or
physical or mental well-being of other persons on the
basis of evidence establishing
(ii) a pattern of repetitive behaviour by the offender, of which
the offence for which he or she has been convicted forms
a part, showing a failure to restrain his or her behaviour
and a likelihood of causing death or injury to other
persons, or inflicting severe psychological damage on
other persons, through failure in the future to restrain his
or her behaviour,
(iii) a pattern of persistent aggressive behaviour by the
offender, of which the offence for which he or she has
been convicted forms a part, showing a substantial degree
of indifference on the part of the offender respecting the
reasonably foreseeable consequences to other persons of
his or her behaviour, or any behaviour by the offender,
associated with the offence for which he or she has been
convicted, that is of such a brutal nature as to compel the
conclusion that the offender's behaviour in the future is
unlikely to be inhibited by normal standards of behavioral
restraint; or
(b)
that the offence for which the offender has been convicted is a
serious personal injury offence described in paragraph (b) of the
definition of that expression in section 752 and the offender, by his
or her conduct in any sexual matter including that involved in the
commission of the offence for which he or she has been convicted,
has shown a failure to control his or her sexual impulses and a
likelihood of causing injury, pain or other evil to other persons
through failure in the future to control his or her sexual impulses.
¶ 100
The factual circumstances underlying the 1997 robbery conviction reveal a
significant sexual component given the elements of exhibitionism and choking of the
female victim late at night. Exhibitionism by the offender factored in the circumstances
of the sexual assaults in counts #1 and 6, and choking of the victim in counts #1 and
3. While this transaction is not before the court for sentencing, the crime is nevertheless
relevant to the tests enunciated in s. 753(1) of the Code.
¶ 101 The accused is subject to being sentenced for the 1997 sexual assault (count #6)
and the single count of breach of probation to a finite sentence for each offence which is
just and fit in the circumstances. With respect to the serious personal injury offence
convictions, the sexual assault and the sexual assault causing bodily harm, the court has
the following three options:
(1)
(2)
(3)
find the accused to be a dangerous offender and sentence the
offender to a period of indeterminate detention (s. 753(1)(4)),
in the absence of finding Mr. Payne to be a dangerous offender, the
court may treat the application as an application to find the offender
to be a long-term offender, with section 753.1 applying to the
application and the court may find the offender is a long-term
offender and impose a long-term supervision order (ss. 753(5)(a), s.
753.1(1)(2)(3)); or
the court may impose determinate sentences for the offences for
which the offender has been convicted.
¶ 102
Sections 753.1(1) and (2) of the Code provide:
753.1 (1) Application for finding that an offender is a long-term offender The court may, on application made under this Part following the
filing of an assessment report under subsection 752.1(2), find an
offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of
imprisonment of two years or more for the offence for
which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend;
and
(c) there is a reasonable possibility of eventual control of the
risk in the community.
(2)
Substantial risk - The court shall be satisfied that there is a
substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under
section 151 (sexual interference), 152 (invitation to sexual
touching) or 153 (sexual exploitation), subsection 173(2)
(exposure) or section 271 (sexual assault), 272 (sexual
assault with a weapon) or 273 (aggravated sexual assault),
or has engaged in serious conduct of a sexual nature in the
commission of another offence of which the offender has
been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of
which the offence for which he or she has been
convicted forms a part, that shows a likelihood of
the offender's causing death or injury to other
persons or inflicting severe psychological damage
on other persons, or
(ii) by conduct in any sexual matter including that
involved in the commission of the offence for which
the offender has been convicted, has shown a
likelihood of causing injury, pain or other evil to
other persons in the future through similar offences.
¶ 103
Lee Marvin Payne was diagnosed as suffering from heterosexual hemophilia
paraphilia and substance abuse disorder. In addition, he presents exhibitionist paraphilia.
The disorders are life-long conditions. The accused's sexual drive, a preferential
attraction to post pubescent girls, with exhibitionism and violent acting out, may be
subject to control, not elimination. Likewise, substance abuse disorder, whether drug or
alcohol, is not curable although it may be partially treatable and controllable. The
disorders exist independent of one another.
¶ 104
The March 1997 sexual assault escalated to what was effectively sexually
aggressive behaviour in the April 1997 robbery when the accused exposed himself and
choked his victim. About a year later, in April, 1998, while on probation, and only three
months after his release from prison, the accused engaged in an act of exhibitionism
(count #8) before engaging in serious sexual misconduct compressed into a three-day
period, April 25th to 27th, 1998 (counts #13, 3, 1 and 15). These crimes included an
indecent act of exhibitionism, a sexual assault with choking, a rape with punching and
choking, and a further act of exhibitionism. The rape of S.C. was comparatively more
severe than the other offences. These were indiscriminate and opportunistic acts of
sexual aggression toward females who were complete strangers.
¶ 105 The 1997 sexual assault, the 1997 robbery, the serious personal injury offences,
and to a lesser extent the indecent acts, demonstrate not only a failure on Mr. Payne's part
to control his sexual impulses as described in ss. 753(1)(a) and (b), but also a pattern of
repetitive behaviour causing injury to others and/or the infliction of severe psychological
damage to others (s. 753.1(2)).
¶ 106
The demonstrable pattern of offending reflected in the crimes before the court,
and the clear thrust of the mental health experts' testimony is that Lee Marvin Payne, by
virtue of his criminal conduct and the clinical and diagnostic testing, is likely to re-offend
in a sexually aggressive manner. The accused's ability to function normally is
significantly impaired by psychiatric disorder. Dr. Hector stated that about 60% of
individuals who score similarly to Mr. Payne on the VRAG test are predicted to re-offend
violently within a period of ten years following discharge. Forty per cent will not. The
RRAS test placed the accused at the low end of the "high risk" category which Dr. Hector
described as a very substantial risk of re-offence. Both experts viewed Mr. Payne as a
high risk to re-offend.
¶ 107 The pre-Bill C-55 judicial interpretation of "likelihood" in the dangerous
offender scheme was interpreted as meaning something other than "certainty or
probability": Regina v. Langevin, supra at 349. Leaving any engine of change or control
to the side, the evidentiary record in this case unequivocally establishes a "likelihood" of
Lee Marvin Payne causing injury, pain or other evil to others through failure in the future
to control his sexual impulses in the fashion described in ss. 753(1)(a) and (b) which
might otherwise be described as a "substantial risk" of re-offence within the meaning of
s. 753.1(2)(b)). To this point in the analysis, the accused fulfils the criteria for both a
dangerous offender and a long-term offender. This brings us to the central focus - the
issue of treatment, control and management of the offender.
¶ 108
In considering, within the meaning of paragraph 753(1), whether it has been
established beyond a reasonable doubt that there is a present likelihood of inflicting
future harm, an essential component of a dangerous offender finding, the court is entitled
to consider matters of cure, treatment and control: Regina v. Neve, supra at 178-180 per
curiam. In the long-term offender regime, by the statutory direction of paragraph
753.1(1)(c), the court is obliged to consider whether, despite the accused's substantial risk
to re-offend, "there is a reasonable possibility of eventual control of the risk in the
community". It appears then that where there is no reasonable possibility of eventual
control of the accused's substantial risk of re-offence, the court must conclude the
accused to be a dangerous offender.
¶ 109 There are no cures for Mr. Payne's disorders. The community would be in
danger if the accused were released at this time. He presents a lifetime risk. At a medical
level, Dr. Hector's evidence is that science currently has no effective treatment for
paraphilia and only a very limited treatment potential for substance abuse disorder. Dr.
Wright agreed stressing the essentiality of aggressive community treatment once the
accused is released from custody. Still at the dimension of science, the experts did not
entirely discount the contribution of therapy and counselling to control of the disorders in
question. Dr. Hector spoke of medication, sex hormone suppression and seraguine
reactive inhibitors to control sexual drive. Dr. Wright recommended the value of
sufficient levels of "surveillance" and "aggressive monitor" were Mr. Payne to be
released from custody.
¶ 110
Apart from the psychological and medical dimension, there is the question of
whether, on a case-specific level, the accused is himself treatable and amenable to
control.
¶ 111
In Mr. Payne's case, there are a number of negative features. The accused has
failed to take advantage of a prior court-directed opportunity to conquer his longstanding
substance abuse problem. The 1998 offences were committed while on probation. On
the experts' view, the accused has little insight into the substance abuse issue. He
engages in minimization of the disorder and has rejected professional
assistance. Similarly, in regard to his paraphilia disorder, the accused has limited insight,
is involved in minimization denial not taking responsibility for his behaviour, has
rejected the sexual preference assessment test, has not been open in discussing the
circumstances of the offences before the court, has an anger management problem and, in
effect, is not actively working toward treatment and control of his disorders.
¶ 112 In the balance, there are positive aspects respecting the treatability issue. The
accused had just turned 22 years of age when the 1997 sexual assault transpired. In 1998,
the accused provided an inculpatory videotaped statement on arrest. Subsequently, the
offender voluntarily provided a DNA sample. A greatly truncated preliminary inquiry
was held, the inquiry was effectively waived, and S.C. was not required to testify. Mr.
Payne pleaded guilty to the offences for which he has been convicted. He had no
criminal record prior to the 1997 robbery. The offender has demonstrated, at times of
turmoil, a capability of involvement in a stable relationship and stable employment. With
respect to drugs and alcohol, the accused has been presumptively abstinent during the 2
1/4 years of presentence custody. During the 60-day assessment, Mr. Payne displayed no
inappropriate behaviour and followed the rules extremely well. The offender recognizes
that he will require lengthy and tight supervision in the community following release
from custody. Mr. Payne was not diagnosed as suffering from a personality disorder. It
has not been suggested there is a certainty he will reoffend. The medical experts
identified signs that Mr. Payne would be a good supervision candidate. The accused's
letters, and his exercise of the right of allocution under s. 726 of the Code, albeit not
under oath and late in the day, do nevertheless express remorse, empathy for the victims,
and a willingness to secure treatment.
¶ 113
It is worthy of note that because the 1997 robbery was not treated as a sexual
assault, Mr. Payne has not had the benefit of sexual disorder treatment and counselling.
Both Dr. Hector and Dr. Wright agreed that "the relatively low PCLR score and a certain
degree of compliance with authority figures, point to ... [Mr. Payne] ... being a good
supervision candidate".
¶ 114
The threshold for a dangerous offender finding is a current "likelihood" of
causing future harm (s. 753(1)). In the calculus, while the court is entitled to consider
treatability, the standard to be applied to the intersect of dangerousness and treatment is
unstated. For example, must the court be satisfied to a certainty that treatment will curtail
or control any subsisting dangerousness, or eliminate the danger altogether? Predicting
further dangerousness is itself a complex enough assignment quite apart from the
assessment of the efficacy of treatment. The answer may well lie in the text of the longterm offender provision which permits the court to sentence an individual as a long-term
offender where there exists a substantial risk he or she will re-offend but "there is a
reasonable possibility of eventual control of the risk in the community" (s. 753.1(1)(c)).
Possibility does not of course require anything approaching certainty.
¶ 115
A harmonious reading of the dangerous and long-term offender provisions
would suggest that where there is no reasonable possibility of eventual control of the risk
in the community, the accused should be declared a dangerous offender. Conversely,
where it can be said that, objectively speaking, following the serving of a custodial
sentence, there is a realistic prospect of management of the risk in the community control of the threat of dangerousness within tolerable limits not elimination of the threat,
then a long-term supervision order is appropriate.
¶ 116
Having regard to the existence of a reasonable possibility of eventual control in
the community of the risk presented by Mr. Payne, I am not satisfied beyond a reasonable
doubt that there is a likelihood of causing future harm.
THE APPROPRIATE DETERMINATE SENTENCES
¶ 117
With multiple offences, the court is obliged to consider the principle of totality
of sentence (s. 718.2(c) of the Code). The total sentence should not be unduly long or
harsh while bearing in mind that, in the face of the serious crimes committed, there
should to the extent possible be a proportionate recognition of the high level of moral
blameworthiness. In the instance of multiple offences, the totality principle necessarily
reduces the role of proportionate punishment on an offence-by-offence basis and limits
the effective use of consecutive sentences.
¶ 118
Much has already been said of this offender's dangerousness. Mr. Payne
exhibited sexually aggressive behaviour, crimes of violence, against females who were
strangers to him. He continues to present significant risk of re-offence. Mr. Payne was
on probation during the 1998 crime spree and failed to curtail his alcohol abuse despite
his 1997 robbery sentence.
¶ 119
Dr. Wright's opinion that about 4 years is the minimum time in the penitentiary
system required for Mr. Payne to move from square one through the substance abuse,
sexual offender, and anger management treatment modules speaks to the imposition of a
substantial penitentiary sentence. Such an approach is entirely faithful to denunciation of
the offender's conduct and the principles of specific and general deterrence.
¶ 120
A global sentence of 10 years' imprisonment, together with a lengthy long-term
supervision order, would serve the interests of justice in the circumstances of this
case. Leaving aside count #1 for the moment, and the issue of pre-sentence custody, the
appropriate sanctions for the remaining offences would be:
Count #6
sexual assault
Count #3
sexual assault
Count #7
breach probation
TOTAL
2 years
2 1/2 years (consecutive)
6 months (concurrent)
4 1/2 years
¶ 121 The offender has been in custody since his arrest, a period of about 29
months. Having regard to s. 719(3) of the Code, and the principles relevant to
consideration of pre-sentence custody in imposing a fit and just disposition described in
Regina v. Rezaie (1997), 112 C.C.C. (3d) 97 (Ont. C.A.) at 104-106 per Laskin J.A., I am
prepared to credit the accused with the equivalent of 41/2 years of custody served. In
arriving at this result, I have had especial regard to the protracted nature of the
proceedings, the incarceration of the offender in a province away from most of his
family, and the lack of any training or rehabilitative counselling or treatment
opportunities in the holding facility.
¶ 122
Given the equivalency between the credit for pre-sentence custody and the
above-described sentences which could justifiably be imposed for counts #6, 3, and 7, the
offender will be sentenced to time served on these counts with the indictment, and in turn
the criminal record of the accused, reflecting the sentence of imprisonment assigned the
respective counts.
¶ 123 The sexual assault causing bodily harm, the gravest offence of violence,
warrants an exemplary sentence. Bearing in mind the totality principle, Mr. Payne's guilty
plea, and the waiver of the preliminary inquiry on this transaction, the offender is
sentenced to 51/2 years' imprisonment on count #1.
¶ 124 The court recommends to the federal authorities that Mr. Payne be incarcerated
in an institution which will ensure that he receives, commencing as soon as practicable,
meaningful assistance in terms of sex offender treatment, substance abuse therapy, anger
management counselling, substance abuse therapy, life skills training, and occupational
or vocational training.
THE LONG-TERM SUPERVISION ORDER
¶ 125
A long-term supervision order is a form of conditional release which, as a
general rule, and as in this case, is reserved for an offender who is one step from being
sentenced to an indeterminate period of imprisonment. Accordingly, this genre of release
is meant to be quite different than probation or conventional parole.
¶ 126 The protection of society is the dominant consideration in determining the term
or duration of the order.
¶ 127
In Regina v. Guilford, supra at para. 47 and 48, I stated:
Turning to the contribution to risk management of the deterrent effect of
punishment, s. 753.3 of the Code provides that a long-term offender who,
without reasonable excuse, fails or refuses to comply with a condition of
the order may be tried and, if found guilty, may be punished to
imprisonment for a term not exceeding ten years. The severe consequence
for a breach of the order is meant to catch the attention of anyone declared
to be a long-term offender.
The maximum permissible duration of a long-term offender supervision
order is ten years (s. 753.1(3)(b) of the Code).
¶ 128 Mr. Payne will serve a 10-year long-term supervision order. The maximum
period of supervision is proportionate to the risk of re-offence and therefore is necessary
to protect the community.
¶ 129
Counsel agreed, not surprisingly, that the long-term supervision order must
contain stringent terms or conditions designed to further Mr. Payne's rehabilitation and
reintegration into society while sparing the community any criminal recidivism by the
offender. While Mr. Quick submitted the sentencing court may recommend conditions to
the Board, Mr. Derstine argued the sentencing judge has authority to adopt a directory
approach setting various terms even if the Board adds further conditions.
¶ 130 Unlike the setting of conditions of a probation order or a conditional sentence
order, where the Code confers express jurisdiction upon the court to craft terms of the
order, there is no corresponding authority in that statute in relation to a long-term
supervision order. This led me to observe in Regina v. Guilford, supra at para. 43:
Part XXIV of the Code does not confer upon the court jurisdiction to craft
binding conditions or terms for a long-term offender's supervised
release. Once the sentencing court declares the accused to be a long-term
offender and defines the temporal duration of the long-term offender
supervision order (s. 753.1(3)), according to s. 753.2(1) of the Code, once
the offender "has finished serving" his or her sentence, the order shall be
supervised in accordance with the Corrections and Conditional Release Act
(the Act). Section 134.1(1) of the Act provides:
134.1(1) Subject to subsection (4), every offender who is required to
be supervised by a long-term supervision order is subject to the
conditions prescribed by subsection 161(1) of the Corrections and
Conditional Release Regulations, with such modifications as the
circumstances require.
¶ 131 Although the court is not strictly forbidden from imposing conditions, a
purposeful reading of the two relevant statutes suggests that the Board should set the
terms of the order having especial regard to the sentencing court's
recommendations. Because, in the instance of a long-term supervision order, the
commencement of the conditional release is some years after sentencing, the Board
enjoys the advantage of setting conditions in an environment informed by current
information about the offender's mental health and rehabilitative progress, the medical
science of the day and the community-based resources in existence.
¶ 132 Section 161(1) paragraphs (a) to (h) of the Corrections and Conditional Release
Regulations read:
161. (1) For the purposes of subsection 133(2) of the Act, every offender
who is released on parole or statutory release is subject to the
following conditions, namely, that the offender on release, travel
directly to the offender's place of residence, as set out in the release
certificate respecting the offender, and report to the offender's parole
supervisor immediately and thereafter as instructed by the parole
supervisor;
(a) remain at all times in Canada within the territorial
boundaries fixed by the parole supervisor;
(b) obey the law and keep the peace;
(c) inform the parole supervisor immediately on arrest or on
being questioned by the police;
(d) at all times carry the release certificate and the identity
card provided by the releasing authority and produce them
on request for identification to any peace officer or parole
supervisor;
(e) report to the police if and as instructed by the parole
supervisor;
(f) advise the parole supervisor of the offender's address of
residence on release and thereafter report immediately
(i) any change in the offender's address of residence,
(ii) any change in the offender's normal occupation,
including employment, vocational or educational
training and volunteer work,
(iii) any change in the domestic or financial situation of
the offender and, on request of the parole supervisor,
any change that the offender has knowledge of in the
family situation of the offender, and
(iv) any change that may reasonably be expected to
affect the offender's ability to comply with the
conditions of parole or statutory release;
(h) not own, possess or have the control of any weapon, as
defined in section 2 of the Criminal Code, except as
authorized by the parole supervisor.
Section 134.1(2) of the Act further provides:
(2)
The Board may establish conditions for the long-term supervision of
the offender that it considers reasonable and necessary in order to
protect society and to facilitate the successful reintegration into
society of the offender.
¶ 133 Counsel were asked for submissions as to the authority of the Board to impose
mandatory conditions respecting treatment and the taking of medication. Crown counsel
submitted that such terms could only be placed in the order with the offender's consent,
relying on such authorities as Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.); Regina v.
Kieling (1991), 64 C.C.C. (3d) 124 (Sask. C.A.); and Regina v. Rogers (1991), 61 C.C.C.
(3d) 481 (B.C.C.A.). Mr. Derstine submitted that the nature of a long-term supervision
order and in particular its predominant objective of securing protection of the public
envisions a proportionate degree of restraint of liberty, rights and privileges. I accept this
approach as correct.
¶ 134
The Fleming case dealt with psychiatric patients committed to a provincial
hospital pursuant to provincial legislation who, while mentally competent, had refused
the administration of various drugs in non-emergency situations. The patients were not
charged with a criminal offence or serving a sentence. At issue was the constitutional
validity of provisions of the Ontario Mental Health Act empowering a review board to
compel involuntary incompetent patients to take anti-psychotic drugs contrary to their
competent wishes as expressed by them through their substitute decision-maker. At pages
88, 90-91, 93 and 94, Robins J.A. stated:
Few medical procedures can be more intrusive than the forcible injection
of powerful mind-altering drugs which are often accompanied by severe
and sometimes irreversible adverse side effects. To deprive involuntary
patients of any right to make competent decisions with respect to such
treatment when they become incompetent, and force them to submit to
such medication, against their competent wishes and without the consent of
their legally appointed substitute decision-makers, clearly infringes their
Charter right to security of the person.
...
It can also be accepted, as the evidence in this appeal indicates, that the
appellants are very troubled individuals and that providing care for them in
the facility is a very difficult task. Nonetheless, I am compelled to the
conclusion that, in authorizing the review board to override the competent
wishes of such patients in the manner it does, the Act fails to meet the
standards set by the Charter and violates the rights guaranteed to the
appellants by s. 7.
...
A legislative scheme that permits the competent wishes of a psychiatric
patient to be overridden, and which allows a patient's right to personal
autonomy and self-determination to be defeated, without affording a
hearing as to why the substitute consent-giver's decision to refuse consent
based on the patient's wishes should not be honoured, in my opinion,
violates "the basic tenets of our legal system" and cannot be in accordance
with the principles of fundamental justice: Reference re s. 94(2) of the
Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486, 23 C.C.C.
(3d) 289, at p. 503 S.C.R., p.302 C.C.C.
...
In this case, the appellants' wishes were stated at a time when they were
admittedly competent. It would appear that each of them has had extensive
experience with anti-psychotic drugs and has in the past rejected this form
of medication. However, it is not for this court to assess the validity of
their wishes or the applicability of those wishes to their present psychiatric
circumstances. No emergency is claimed here, and it is not suggested that
the appellants are a threat to themselves or anyone else. In the context of
this legislative scheme, the question of whether the decision of their
substitute should be set aside is a matter to be determined after a hearing in
which the effect or scope of the appellants' wishes, and not merely their
best interests, can be properly considered in the light of all the existing
circumstances.
On the facts of this case, the patients were confined in a secure hospital setting not
capable of endangering members of the public in the community.
¶ 135 In the Kieling and Rogers cases, supra, the appellate courts deleted conditions
in probation orders compelling the probationers to take treatment or medication. At page
488 of the Rogers decision, in rejecting the lawfulness of compulsion in a probation order
to take treatment or medication, Anderson J.A. observed:
In my opinion, a probation order which compels an accused person to take
psychiatric treatment or medication is an unreasonable restraint upon the
liberty and security of the accused person. It is contrary to the fundamental
principles of justice and, save in exceptional circumstances, cannot be
saved by s. 1 of the Charter. Exceptional circumstances are not present
here.
...
In my opinion, it is the protection of the public which is the principal
support for an order compelling the compulsory taking of treatment or
medication. That is sufficient to save the order under s. 1 of the Charter.
Other less drastic means are available to accomplish that purpose.
(emphasis added)
¶ 136
While dispositions within the conventional sentencing scheme embodied by
Part XXIII of the Code arguably promote a balance of "protecting society and facilitating
the offender's successful reintegration into the community" (i.e. s. 732.1(3)(h)), the same
cannot be said of Part XXIV sanctions.
¶ 137 As observed at para. 79, supra, protection of the public has long been
recognized as the dominant purpose of dangerous offender legislation. The same must be
said of the long-term offender provisions. Section 99.1 of the Act deems a person subject
to a long-term supervision order to be an offender subject to s. 101 of the Act. Section
101 of the Act establishes with respect to conditional release that "the protection of
society ... [is] ... the paramount consideration". Section 4(e) of the Act recognizes that an
offender's rights and privileges may necessarily be removed or restricted as a
consequence of the court's sentence. Of significance to this issue are sections 88(1)(a)
and 88(3) of the Act:
88.(1)
Except as provided by subsection (5),
(a)
treatment shall not be given to an inmate, or continued once
started, unless the inmate voluntarily gives an informed consent
thereto ...
...
(3)
For the purposes of paragraph (1)(a), an inmate's consent to
treatment shall not be considered involuntary merely because
the treatment is a requirement for a temporary absence, work
release or parole.
¶ 138 In my view, an offender on conditional release by way of a long-term
supervision order may be compelled by a term of the order to undertake treatment and
related pharmaceutical intervention where essential to management of the accused's risk
of re-offending. In other word, the offender's consent to such a condition is not required.
Should the offender breach terms of the order respecting treatment or medication, he or
she is subject to apprehension with suspension of the order pursuant to s. 135.1 of the Act
or to arrest and prosecution pursuant to s. 753.3(1) of the Code. The entire object of the
long-term offender regime would be undermined by providing the offender the ability to
defeat risk management. Accordingly, mandatory treatment and medication conditions in
an order are a proportionate response to protecting the public from a person who, by
definition, is a substantial risk to reoffend.
¶ 139
With many sex offenders, of whom Mr. Payne is an example, aggressive
community monitoring requires that the government have precise and current knowledge
of the offender's whereabouts. Electronic monitoring, preferably employing global
positioning technology, advances rehabilitation through deterrence.
¶ 140 Particularly in the case of an offender with chronic alcohol abuse problems, it is
essential that the offender receive not only the relevant counselling and treatment but also
that a meaningful monitoring programme be instituted by way of random urinalysis or
blood testing to police abstinence. The Act contains various provisions relating to
urinalysis (ss. 55-57) as does the Corrections and Conditional Release Act Regulations
SOR/92-620 (ss. 60-72). I confess to being somewhat confused by the references in these
provisions to urinalysis testing at "regular intervals". That terminology fails to suggest
testing on an irregular or random basis which amounts to the only realistic mechanism of
coercive compliance. Accordingly, the Board would be well advised to exercise its
discretion pursuant to s. 134.2 of the Act to impose a random alcohol testing condition of
the sort described in Regina v. Forsyth, [1995] O.J. No. 4173 (Gen. Div.); Regina v.
Forsyth; Regina v. Dinwoodie, [1997] O.J. No. 2781 (Gen. Div.).
¶ 141
It is strongly recommended that the Board considered implementation of the
following additional conditions in the long-term supervision order:
1.
2.
3.
4.
5.
That Mr. Payne make reasonable efforts to seek and maintain gainful
employment or to attend educational or training development
courses,
That Mr. Payne abstain absolutely from the consumption of alcohol
and not have alcoholic beverages in his possession or under his
control,
That Mr. Payne not possess or have under his control any substance
described in the Controlled Drugs and Substances Act except under
the authority of a medical prescription,
That Mr. Payne be subject to physical surveillance by electronic
monitoring,
That Mr. Payne be subject to random drug testing on a schedule to
be set by the Board and that he co-operate fully with the long-term
6.
7.
8.
9.
supervision order supervisor or designate in this regard, including
response within a designated notice period to a testing centre,
That Mr. Payne not be in the presence of any female person under 18
years of age except in the presence of another adult person,
That Mr. Payne attend for sexual deviance treatment and counselling
and for such substance abuse counselling or programs as may be
identified by the Board or parole supervisor and to co-operate fully
in producing such proof of attendance and progress as required,
That Mr. Payne shall take whatever medication may be prescribed
for him by qualified medical doctors treating the offender for alcohol
abuse and sexual deviance.
That Mr. Payne forward an annual report, by December 1st of each
year of the long-term supervision order, co-signed by himself and
the order supervisor addressed to:
The Honourable Mr. Justice Casey Hill, A. Grenville &
William Davis Courthouse, Superior Court of Justice, 7755
Hurontario Street, Suite 100, Brampton, Ontario L6W 4T6.
reporting on his personal circumstances and progress during the
year.
COROLLARY ORDERS
Delayed Parole Order
¶ 142 Section 743.6 of the Code permits a court sentencing an offender to a term of
imprisonment of 2 years or more for a scheduled offence to order that the portion of the
sentence which must be served before release on full parole is one half of the
sentence. According to s. 743.6(1), such an order may be made in the discretion of the
court where the court is satisfied:
... having regard to the circumstances of the commission of the offence and
the character and circumstances of the offender, that the expression of
society's denunciation of the offences or the objective of specific or general
deterrence so requires ...
¶ 143 The effect of an order is to circumscribe the discretion of the Board producing a
judicially created certainty of result as to the minimum time period during which an
offender will be incarcerated. Sexual assault and sexual assault causing bodily harm are
scheduled offences for the purposes of an order for delayed parole.
¶ 144 In Regina v. Goulet (1995), 97 C.C.C. (3d) 61 (Ont. C.A.), Griffiths J.A.
described s. 741.2 (the predecessor to s. 743.6) as an exceptional authority, not a routine
component of sentencing, concluding at page 67:
If the offence is one of unusual violence, brutality or degradation, then the
need to strongly express society's denunciation of the offence may make a
s. 741.2 order appropriate. The section should not be invoked on the basis
of more general concerns which are not specific to the particular offence
such as the frequency of the commission of that type of offence in the
community.
The distinguishing characteristics of the offender may provide more
fruitful grounds for invoking s. 741.2 as an exceptional measure. Where
the Crown has adduced clear evidence that the offender will not be
deterred or rehabilitated within the normal period of parole ineligibility, an
order under s. 741.2 will be appropriate. A history of prior parole
violations, or violations of other forms of conditional release, or evidence
that significant prior custodial sentences have had little impact would be
appropriate factors to consider in applying s. 741.2.
A similar approach has been adopted in subsequent cases: Regina v. Osborne (1996), 110
C.C.C. (3d) 161 (Ont. C.A.); Regina v. Yip, [2000] O.J. No. 2781 (C.A.); Regina v.
Garrison (1999), 125 O.A.C. 260 (C.A.).
¶ 145
Quite apart from the denunciatory justification for delayed parole arising from
the circumstances of the sexual assault crimes, and the breach of the 1997 probation
order, the medical evidence overwhelmingly points to the conclusion that the accused
will not be deterred and rehabilitated within the normal period of parole ineligibility.
¶ 146
The reference in s. 743.6(1) to an offender being "released on full parole" raises
the issue in this case as to whether an accused sentenced to a long-term offender
supervision order is a person who is, at anytime, released on full parole. In this regard, s.
753.2(1) of the Code provides:
753.2(1) Long-term supervision - Subject to subsection (2), an offender
who is required to be supervised by an order made under paragraph
753.1(3)(b) shall be supervised in accordance with the Corrections and
Conditional Release Act when the offender has finished serving
(a)
(b)
the sentence for the offence for which the offender has been
convicted; and
all other sentences for offences for which the offender is
convicted and for which sentence of a term of imprisonment is
imposed on the offender, either before or after the conviction
for the offence referred to in paragraph (a).
¶ 147
This in turn leads to a search for the meaning of "... when the offender has
finished serving ... the sentence ...". Section 128(1) of the Act provides that an offender
released on parole or statutory release continues to serve his or her sentence until its
expiration. Where an accused sentenced to a long-term offender order is released at a
point during the determinate period of custody does the offender, to the point of the
mandatory expiry date of the sentence imposed, first go on "full parole" or immediately
commence service of the long-term offender supervision order? If the former (as
suggested by the publication referred to in para. 83 supra), then the application of s. 743.6
is not problematic. If not, s. 743.6 can only apply if the long-term supervision order is
considered a form of conditional release equivalent to full parole. In my view it is.
¶ 148
While the reality is that, given Mr. Payne's dangerousness, he may well serve in
custody the full extent of any determinate sentence imposed for the predicate offences by
virtue of the authority of ss. 129(2)(a)(i)(ii), 129(9)(10), 130(1)(3)(a) and 132(1)(1.1) of
the Act, there will be an order pursuant to s. 743.6 of the Code that Mr. Payne serve at
least one half of his sentence on count #1 before consideration for release under the
supervision of the long-term offender supervision order.
Weapons Prohibition
¶ 149
As s. 109 of the Criminal Code does not have retrospective effect respecting
crimes committed before December 1st, 1998 (Regina v. Burns, [1999] O.J. No. 254
(C.A.)), the accused is sentenced to life-time prohibition order pursuant to the former
section 100(1) of the Code.
DNA Identification Act Order
¶ 150
In this proceeding, Mr. Payne has been convicted of three primary designated
offences (as defined in s.487.04 of the Code) committed before the proclamation of the
DNA Identification Act, S.C. 1998, c. 37. In the circumstances of these offences and the
offender's background, pursuant to s. 487.052 of the Code, it is in the best interests of the
administration of justice that the court make an order in Form 5.04 authorizing the taking,
from Lee Marvin Payne, for the purpose of forensic DNA analysis, of any number of
samples of one or more bodily substances that is reasonably required for that purpose, by
means of the investigative procedures described in subsection 487.06(1) of the Code.
HILL J.
QL Update: 20010130
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