Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence (Dangerous Offender application)
Decision Content
R. v. Bonnetrouge 2013 NWTSC 93 S-1-CR-2009-000081
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
ROBERT WALTER BONNETROUGE
__________________________________________________________
Transcript of the Reasons for Sentence (Dangerous
Offender application) delivered by The Honourable Justice
L. A. Charbonneau, sitting in Yellowknife, in the Northwest
Territories, on the 18th day of November, A.D. 2013.
__________________________________________________________
APPEARANCES:
Mr. M. Lecorre: Counsel for the Crown
Mr. J. Bran: Counsel for the Accused
(Charges under s. 271 x2 and 279(2) x2 of the
Criminal Code of Canada)
BY COURT ORDER, INFORMATION THAT MAY IDENTIFY THE
COMPLAINANTS REFERRED TO IN THE PROCEEDINGS AND IN THE
EXHIBITS FILED MAY NOT BE PUBLISHED, BROADCAST OR TRANSMITTED
IN ANY MANNER, PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE
Official Court Reporters
1 THE COURT: I want to remind everyone that
2 there is a publication ban in effect with respect
3 to these proceedings which prohibits the
4 publication and broadcast of any information that
5 could identify not only the two complainants in
6 the matters that led to this hearing but also
7 with respect to any other victims of any other
8 offences that were referred to in the evidence.
9 There is extensive documentary evidence that has
10 been filed in this case and marked as an exhibit.
11 The publication or broadcast of any information
12 that could identify any of those earlier victims
13 is also prohibited.
14 I was not able to find specific notes about
15 whether the issue of ancillary orders was
16 addressed during submissions. By this I mean
17 DNA, firearms prohibition, and SOIRA order.
18 Could be just my notes are incomplete on that.
19 They all seem to be mandatory orders with these
20 type of offences. I did not see anything in Part
21 XXIV that would remove these orders from being
22 mandatory. So my understanding of things is that
23 they should be made, but I just could not find
24 specific notes. There were a lot of things that
25 were addressed in submissions and everyone was
26 focused on, obviously, the larger part of the
27 decision. But do you have any recollection of
Official Court Reporters
1
1 those issues being addressed, Mr. Bran?
2 MR. BRAN: I don't recall specifically
3 addressing those issues. My understanding is the
4 same as Your Honour's comments. And I'm not sure
5 that they were in any of the written submissions
6 either.
7 THE COURT: No, I thought it was -- I
8 thought somehow I neglected to make a note of it,
9 but I looked and couldn't find any reference to
10 it. So, in fact, what you are saying reassures
11 me. I cannot think of why the orders would not
12 be made in a case like this. Mr. Lecorre, you
13 were not at the hearing, but you are in
14 agreement, essentially?
15 MR. LECORRE: Yes, I am. And just for the
16 record, Ms. Boucher sends her apologies. She's
17 ill today and has asked me to attend to receive
18 the decision. If the Crown for some reason did
19 not ask that you make the ancillary orders, the
20 Crown asks that Your Honour do so now.
21 THE COURT: I will first deal with
22 ancillary orders. Given the types of offences
23 for which Mr. Bonnetrouge was convicted of, it is
24 appropriate that there be a firearm prohibition
25 order that would commence today and expire ten
26 years from his release. Any firearms in his
27 possession will be surrendered forthwith.
Official Court Reporters
2
1 Knowing how long he has been on remand, I know
2 that is not an issue. There will also be a DNA
3 order as the offences of sexual assault are
4 primary designated offences. Finally, there will
5 be an order that he comply with the requirements
6 of the Sexual Offender Identification
7 Registration Act for a period of 20 years.
8 I want to reiterate my thanks to counsel for
9 the manner in which this hearing was conducted,
10 for the quality of materials and quality of
11 submissions that were presented, all of which
12 were of great assistance to the Court in reaching
13 what was a difficult decision.
14 This is an application by the Crown to have
15 Robert Bonnetrouge declared a dangerous offender
16 and sentenced to an indeterminate term of
17 imprisonment.
18 The application was made after
19 Mr. Bonnetrouge was found guilty by a jury on two
20 counts of sexual assault and two counts of
21 unlawful confinement.
22 The hearing proceeded in April 2013. The
23 predicate offences date back to 2009. There has
24 been considerable delay in bringing this matter
25 to its conclusion, and there were many reasons
26 for this. I want to refer to those reasons
27 briefly, for the record.
Official Court Reporters
3
1 First, there were significant delays in the
2 trial process. The first attempt to hold a jury
3 trial was in May 2010 in Fort Providence and it
4 resulted in a mistrial because of difficulties in
5 empaneling the jury. A second attempt was made
6 to hold a trial, this time in Yellowknife, in
7 January of 2011. The trial proceeded at that
8 time, but after several hours of deliberations,
9 the jury reported that they were at an impasse
10 and the presiding judge declared a mistrial. The
11 trial was set for the third time to proceed in
12 September 2011 in Yellowknife. It was at the
13 conclusion of that trial that Mr. Bonnetrouge was
14 found guilty by the jury.
15 The process of the Crown bringing the
16 dangerous offender application involved delays as
17 well. In November 2011, the Crown applied for an
18 assessment order, pursuant to Section 752.1 of
19 the Criminal Code, and the order was granted.
20 The assessment period was extended twice to
21 permit its completion. The report was finally
22 received in June 2012. By that point, defence
23 indicated that it was attempting to make
24 arrangements to have a second assessment
25 completed and, understandably, that took some
26 time to arrange. That second assessment was
27 eventually completed and, in the meantime, a
Official Court Reporters
4
1 hearing date was set aside for April of 2013.
2 The hearing proceeded at that time and there was
3 a further adjournment to allow for the
4 preparation of transcripts of the evidence and
5 for counsel to prepare written submissions.
6 Final oral submissions were made to the Court on
7 August 28th, 2013.
8 In finding Mr. Bonnetrouge guilty of the
9 four charges that he was facing at trial, the
10 jury necessarily had to have accepted the
11 testimony of the two complainants. This is not a
12 verdict that left any ambiguity as to what facts
13 were found such that as I, as the trial judge,
14 would be required to make findings of fact.
15 The two complainants, M.E. and A.L., were 16
16 years old at the time of the events, July 4th,
17 2009. That night they went to Mr. Bonnetrouge's
18 house with another male person. They all
19 consumed alcohol, and the other man passed out at
20 some point. They testified that when they
21 decided to leave, Mr. Bonnetrouge would not let
22 them leave. He dragged them to one of the rooms
23 in the house and closed the door. He attempted
24 to remove M.E.'s pants but was not able to
25 because she was wearing a belt. He was, however,
26 able to take A.L.'s pants down and had forcible
27 sexual intercourse with her.
Official Court Reporters
5
1 The evidence at trial was that both girls
2 tried to resist him. M.E. said he struck them
3 while in the room and that A.L. had bruises after
4 this. M.E. testified that as Mr. Bonnetrouge was
5 raping A.L., he was also preventing M.E. from
6 leaving by holding on to her sweater.
7 That is a summary of the facts as they came
8 out in the evidence of the complainants at the
9 trial.
10 A considerable amount of evidence was
11 adduced at the April hearing. A lot of
12 documentary evidence was filed by consent. This
13 evidence included documents setting out the
14 details of the criminal offences that
15 Mr. Bonnetrouge has been convicted of prior to
16 the 2009 offences as well as the sentences that
17 he received for those earlier convictions. There
18 were also documents retracing his correctional
19 history, setting out where he has been
20 incarcerated over the years; programs he has
21 taken during his various jail terms; how he
22 performed; his behaviour and attitudes towards
23 programming during those sentences; assessments
24 that he has undergone. The documents also
25 include general information about
26 Mr. Bonnetrouge's conduct while he was in custody
27 and some of the attitudes he displayed with
Official Court Reporters
6
1 respect to the victims of his past offences.
2 Witnesses were also called at the hearing,
3 including the two experts who assessed
4 Mr. Bonnetrouge. Dr. Scott Woodside, a
5 psychiatrist, was called by the Crown. Dr. Mark
6 Nesca, a psychologist, was called by Defence.
7 Generally speaking, their evidence pertained to
8 Mr. Bonnetrouge's diagnoses, the assessment of
9 his risk, their opinions about whether that risk
10 could be managed in the future and, if so, how.
11 The Crown also called Cindy Sparvier and
12 Bruce Anderson. These witnesses testified about
13 intake and classification procedures for federal
14 inmates, the programs that are available in the
15 federal correctional system and, once offenders
16 are on parole, the level of supervision that is
17 available in the community, as well as some of
18 the processes that are in place for the
19 supervision of offenders who are on long-term
20 supervision orders.
21 This application is governed by Part XXIV of
22 the Criminal Code. There are certain procedural
23 requirements that must be complied with in order
24 for an application like this one to be
25 entertained by the Court. In this case, all
26 these requirements have been met.
27 There are really two broad issues that a
Official Court Reporters
7
1 court has to examine in an application like this
2 one. The first is whether the offender meets the
3 criteria to be declared a dangerous offender as
4 defined in Section 753(1)(a) or paragraph (b) of
5 the Criminal Code. The second issue only arises
6 if the Court is satisfied that the offender does
7 meet the criteria and should be declared a
8 dangerous offender. If that is the case, the
9 Court has to determine what sentence should be
10 imposed, and paragraph 753(4) gives the Court
11 three options. The first is a sentence of
12 detention in the penitentiary for an
13 indeterminate period of time; the second is a
14 sentence that must be at least two years and is
15 followed by a period of long-term supervision
16 order, which can be for a maximum of ten years;
17 the third is to sentence the offender under the
18 usual sentencing regime.
19 Paragraph 753(4.1) states that the Court
20 shall impose an indeterminate sentence unless it
21 is satisfied that there is a reasonable
22 expectation that one of the other two sentencing
23 options will adequately protect the public.
24 A number of cases were filed by counsel.
25 Those cases address various elements of the
26 statutory framework and they were very helpful to
27 me. I will not be referring to all of them in
Official Court Reporters
8
1 these reasons, but I have reviewed them all.
2 With respect to the first issue: Whether
3 the criteria for a dangerous offender designation
4 have been met, based on the written and oral
5 submissions presented at the conclusion of the
6 hearing, I understand the issue between these
7 parties is not whether Mr. Bonnetrouge meets the
8 criteria to be declared a dangerous offender.
9 Rather, the issue is what sentence should be
10 imposed on him. Still, for the record, I do want
11 to outline why the evidence satisfies me beyond a
12 reasonable doubt that Mr. Bonnetrouge meets the
13 criteria to be designated a dangerous offender.
14 The Criminal Code outlines various sets of
15 criteria that can lead to such a designation. In
16 my view, the evidence establishes that
17 Mr. Bonnetrouge meets the criteria for a
18 dangerous offender designation under a few
19 different headings. More specifically, he meets
20 the criteria under Section 753(1)(a)(i) and
21 753(1)(a)(ii) as well as 753(1)(b).
22 Section 753 says that "the court shall find
23 the offender to be a dangerous offender if it is
24 satisfied", under the first heading:
25 that the offence for which the
offender has been convicted is a
26 serious personal injury offence
... and the offender constitutes a
27 threat to life, safety or physical
or mental well-being of other
Official Court Reporters
9
1 persons on the basis of evidence
establishing a pattern of
2 repetitive behaviour by the
offender, of which the offence for
3 which he or she has been convicted
forms a part, showing a failure to
4 restrain his or her behaviour and
a likelihood of causing death or
5 injury to other persons, or
inflicting severe psychological
6 damage on the persons, through
failure in the future to restrain
7 his or her behaviour.
8 The designation can also be justified if the
9 evidence establishes:
10 a pattern of persistent aggressive
behaviour by the offender, of
11 which the offence for which he or
she has been convicted forms a
12 part, showing a substantial degree
of indifference on the part of the
13 offender respecting the reasonably
foreseeable consequences to other
14 persons of his or her behaviour.
15 And the final set of criteria that I find is met
16 here is that, in my view, the Crown has
17 established that:
18 the offence for which the offender
has been convicted is a serious
19 personal injury offence described
in the Criminal Code and the
20 offender by his or her conduct in
any sexual matter, including that
21 involved in the commission of the
offence for which he or she has
22 been convicted has shown a failure
to control his or her sexual
23 impulses and a likelihood of
causing injury, pain or other evil
24 to other persons through failure
in the future to control his or
25 her sexual impulses.
26 One of the factors in determining whether a
27 person meets these criteria of course can be the
Official Court Reporters
10
1 offender's history. The establishment of a
2 pattern is specifically required under the two
3 first headings that I have quoted. Pattern is
4 not specifically mentioned in the other
5 paragraph, but the provision does refer to
6 conduct "in any sexual matter" and, in
7 particular, to "the offender's failure to control
8 his sexual impulses". So consideration of the
9 offender's conduct in the past, in particular
10 with respect to sexual offences, is relevant.
11 Mr. Bonnetrouge's criminal history is
12 significant and compelling. Even considering the
13 sexual offences on his record alone, that is a
14 significant record.
15 As a youth, Mr. Bonnetrouge was convicted of
16 five separate sexual assault offences and each
17 time was sentenced to custody under the terms of
18 the Young Offenders Act, which was the statute in
19 force at the time to deal with young persons. In
20 1993 he received a term of one-year open custody
21 for having tried to have forced sexual
22 intercourse with a four-year-old. Mr. Bonnetrouge
23 was 13 at the time.
24 In 1994 he was sentenced to 14 months closed
25 custody for two charges of sexual interference.
26 These offences were committed against children.
27 In one case a nine-year-old woke up to
Official Court Reporters
11
1 Mr. Bonnetrouge undoing her belt and digging into
2 her pants, and he was seen with his hand under
3 the pants of a three-year-old. Mr. Bonnetrouge
4 was 16 at the time.
5 In March 1996, Mr. Bonnetrouge was sentenced
6 to two counts of sexual assault and one count of
7 uttering threats. These offences occurred when
8 Mr. Bonnetrouge was 17 years old and incarcerated
9 in two separate youth custodial facilities. He
10 sexually assaulted another 14-year-old male
11 inmate twice, once in each facility. After the
12 first time, Mr. Bonnetrouge threatened to kill
13 his victim if he reported this incident. The
14 victim did not report anything until after the
15 second incident. This was Mr. Bonnetrouge's last
16 time being sentenced as a youth and he received a
17 term of two and a half years' closed custody.
18 In February 2010, Mr. Bonnetrouge was
19 sentenced to three years' imprisonment for
20 another sexual assault committed while he was in
21 custody. On that occasion, he had been placed in
22 a cell with another male inmate. That prisoner
23 was sleeping and Mr. Bonnetrouge had sexual
24 intercourse with him.
25 Some of Mr. Bonnetrouge's other convictions,
26 while not for sexual assaults, are also of
27 concern because of their underlying facts. For
Official Court Reporters
12
1 example, the mischief that he was sentenced for
2 in July 2006 was for being found asleep in a
3 stranger's house, sleeping in the bedroom of the
4 son of the household. The break and enter with
5 intent he was sentenced for in September 2009 was
6 for being found in the bathroom of a stranger's
7 hotel room. The tenant had a small child with
8 her. When they found him, they ran out and he
9 followed them. There was a mischief and assault
10 that he was sentenced for also in September 2009.
11 These offences occurred a few months before the
12 predicate offence and arose when he was found
13 outside the window of an 11-year-old child.
14 Mr. Bonnetrouge assaulted the person who
15 confronted him, and when that person ran into the
16 house, Mr. Bonnetrouge kicked the door, but the
17 residents managed to keep the door shut until he
18 left.
19 This series of events, in itself, goes a
20 long way in illustrating the risk Mr. Bonnetrouge
21 poses for the safety of others. But in addition
22 to that, Dr. Woodside and Dr. Nesca were
23 essentially in agreement that Mr. Bonnetrouge
24 presents a high risk to reoffend at this time.
25 I will get back to their evidence in more
26 detail later in these Reasons, but, for now, I
27 will say only that while they disagreed on some
Official Court Reporters
13
1 things, they did not disagree on this fundamental
2 question that is very important as far as
3 deciding whether Mr. Bonnetrouge should be
4 designated as a dangerous offender: they both
5 agree that he presents a high risk of
6 reoffending. They both agree that absent
7 significant intervention, Mr. Bonnetrouge is
8 likely to offend again.
9 Finally, I also have the benefit of the
10 correctional records. These records suggest that
11 with respect to many of his offences,
12 Mr. Bonnetrouge appeared to show little empathy
13 towards his victims and little insight into his
14 behaviour. There are some indications that, at
15 times, he did express some remorse. But, there
16 are several other indications of him not showing
17 empathy and not taking responsibility.
18 On the whole of the evidence, I am satisfied
19 beyond a reasonable doubt that Mr. Bonnetrouge
20 meets the criteria to be declared a dangerous
21 offender under the provisions that I have
22 referred to. I want to make it clear that I have
23 reached this conclusion without resorting to the
24 rebuttable presumption that is set out at Section
25 753(1.1) of the Criminal Code. In written
26 submissions, defence had conceded that the
27 presumption would be engaged in this case, and,
Official Court Reporters
14
1 on the face of the record, it is. But I do not
2 need to rely on it because I am satisfied that it
3 has been positively established by the Crown,
4 beyond a reasonable doubt, that Mr. Bonnetrouge
5 should be declared a dangerous offender based on
6 the criteria set out at the paragraphs that I
7 referred to.
8 The next question is: What sentence should
9 be imposed? As I already mentioned, three
10 sentencing options are available to the Court
11 once it declares someone to be a dangerous
12 offender. Here, the defence does not suggest
13 that a determinate sentence in the usual course
14 would be appropriate. This leaves the two other
15 options, namely, sentencing Mr. Bonnetrouge to an
16 indeterminate sentence, which is what the Crown
17 asks, or sentencing him to a determinate sentence
18 followed by a period of long-term supervision.
19 As I have already stated, the Court must
20 impose an indeterminate jail term unless it is
21 satisfied there is a reasonable expectation that
22 a lesser measure will adequately protect the
23 public against the commission by the offender of
24 murder or a serious personal injury offence.
25 The outcome of this application, therefore,
26 turns on this question: Can the Court have this
27 reasonable expectation, based on the evidence
Official Court Reporters
15
1 adduced, that a determinate sentence followed by
2 a long-term supervision order will adequately
3 protect the public? Answering this question is
4 difficult. Risk assessment and risk control are
5 not exact sciences.
6 In making this decision, the evidence of
7 Dr. Woodside and the evidence of Dr. Nesca is
8 very important. But the Court must not simply
9 defer to what the experts say. It must make its
10 own determination informed by the evidence of the
11 expert witnesses (as long, of course, as the
12 Court finds that evidence reliable).
13 In this case, I found the evidence of both
14 experts very helpful and very informative. They
15 did not agree on everything, but they were each
16 able to explain and outline the bases for their
17 opinions. Neither of them answered questions
18 that were put to them in cross-examination in a
19 defensive or elusive manner. One is a
20 psychiatrist, the other is a psychologist, and
21 they were both careful, I thought, to remain
22 within the parameters of their areas of
23 expertise. They both acknowledged when a matter
24 being raised did not fall within their area of
25 expertise. I have no concerns about their
26 qualifications, and I found both of their
27 evidence quite helpful in reaching my decision.
Official Court Reporters
16
1 They each provided detailed reports which
2 have been made exhibits. They also testified at
3 length at the hearing. My intention here is not
4 to attempt to summarize or refer to everything
5 that they said or to the full contents of their
6 reports. I simply want to highlight some of the
7 main features.
8 Starting with Dr. Woodside, he is a
9 psychiatrist. He is the clinical head of the
10 Sexual Behavioural Clinic at the Centre for
11 Addiction and Mental Health in Toronto. For over
12 15 years, his work has involved the diagnosis and
13 treatment of sexual offenders.
14 As I have already mentioned, Dr. Woodside's
15 conclusion is that Mr. Bonnetrouge presents a
16 high risk to reoffend. This conclusion is based
17 on a number of factors that he explained in his
18 evidence and are outlined in his report.
19 Dr. Woodside also talked about some of the
20 measures that could be put in place to control
21 that risk.
22 Dr. Woodside's conclusions about the risk
23 that Mr. Bonnetrouge represents were based, as I
24 said, on a number of things. The first was
25 Mr. Bonnetrouge's history of repeated sexual
26 offending. Dr. Woodside considers that past
27 behaviour can be a good indicator of what future
Official Court Reporters
17
1 behaviour might be. But there were a number of
2 other things that he considered. He considered
3 results of actuarial testing using certain
4 instruments. The tools he used, more
5 specifically, were the Static-99, the Violent
6 Risk Appraisal Guide, also called V-RAG, and the
7 Sexual Offender Risk Offender Guide, also called
8 SORAG. Mr. Bonnetrouge's score on each of these
9 instruments placed him in the high-risk groups as
10 far as recidivism. These tools measure the
11 individual score against group data. Their
12 scoring on the instrument places them in a
13 certain bin or group. To each of these groups is
14 attached a percentage of recidivism based on
15 various samples taken from the prison population.
16 Dr. Woodside said these instruments must be used
17 with some caution. In particular, his opinion is
18 that little weight should be placed on the
19 recidivism percentage attached to each group.
20 His view, though, is that there is some
21 significance in the score on this type of
22 instrument as far as the category where the
23 individual places. It was one of the things that
24 contributed to Dr. Woodside forming the opinion
25 about Mr. Bonnetrouge's risk to reoffend.
26 Another factor that is relevant to risk, of
27 course, is the diagnosis. Dr. Woodside's
Official Court Reporters
18
1 specific diagnoses for Mr. Bonnetrouge are
2 pedohebephilia, which means preference for
3 prepubescent- or pubescent-aged partners.
4 Secondly, non-consenting coercive sexual
5 preference, which refers to the preference
6 related to sexual activity with non-consenting
7 partners. In his report, Dr. Woodside's
8 conclusion about this particular paraphelia was
9 not as firm as the first one, but it was
10 reinforced by some things that came out in the
11 hearing during Dr. Nesca's testimony, more
12 particularly the admission by Mr. Bonnetrouge
13 that at the time he was assessed by Dr. Nesca, he
14 reported having active fantasies of rape and
15 things of that sort.
16 The other diagnosis that Dr. Woodside
17 arrived at was that Mr. Bonnetrouge suffers from
18 antisocial personality disorder. He also
19 diagnosed with substance dependance disorder.
20 And Dr. Woodside concluded that Mr. Bonnetrouge
21 suffers from cognitive deficiencies.
22 The conclusion that Mr. Bonnetrouge has
23 antisocial personality disorder is not
24 particularly surprising when dealing with someone
25 who has had considerable difficulties with the
26 law. It is a very common disorder in prison
27 populations. This makes sense because it is a
Official Court Reporters
19
1 disorder that relates to an individual's degree
2 of antisocial or criminal orientation.
3 At the high end of the spectrum of
4 antisociality, one would find psychopathy.
5 Dr. Woodside did an assessment of Mr. Bonnetrouge
6 using an instrument called the Hare Psychopathy
7 Checklist-Revised (PCL-R). Using this
8 instrument, the subject is scored against certain
9 criteria and the result is a score between zero
10 and forty. If the score is thirty, that supports
11 a diagnoses of psychopathy. Dr. Woodside scored
12 Mr. Bonnetrouge at 26.3, which is not sufficient
13 for that diagnosis. Dr. Woodside testified that
14 he nonetheless considered the results helpful and
15 meaningful as an indication of the measure of
16 Mr. Bonnetrouge's level of antisociality.
17 Dr. Woodside views antisociality on a continuum.
18 A person can be more or less antisocial. And to
19 him, as I understood his evidence, a high score
20 on the PCL-R that falls short the psychopathy
21 diagnosis still demonstrates a high level of
22 antisociality, which in turn is relevant to the
23 risk of recidivism and also to possible response
24 and amenability to treatment.
25 When he talked about treatment options in
26 light of his diagnoses, Dr. Woodside outlined
27 what types of options that he would view as
Official Court Reporters
20
1 helpful in reducing the risk that Mr. Bonnetrouge
2 presents. He said that antisociality is
3 something that is difficult to treat and that in
4 Mr. Bonnetrouge's case, there is an added
5 challenge because he has some cognitive deficits.
6 Dr. Woodside viewed the consumption of
7 intoxicants as a significant factor contributing
8 to Mr. Bonnetrouge's antisocial behaviour. So he
9 viewed total abstinence from intoxicants as a key
10 component in reducing Mr. Bonnetrouge's
11 antisocial behaviours. I understood his evidence
12 to be that as far as deviant sexual preference,
13 those cannot be cured; however, in some cases
14 they can be managed, and one of the ways that
15 they can be managed is through intervention with
16 medication, mainly sex drive reduction drugs.
17 Dr. Woodside testified about his experience
18 with this medication. He has treated patients
19 with this type of medication. He was careful to
20 explain that there is very little by way of
21 empirical research on this subject and much
22 remains unknown about the long-term effects that
23 these types of medications can have on people.
24 But he did report on his anecdotal experience
25 using this type of medication, and he said that
26 he had some success with the patients that he has
27 prescribed this to. He has observed significant
Official Court Reporters
21
1 decrease in recidivism rates in those patients.
2 He said that if, however, a person stops taking
3 the medication, the sex drive returns rapidly.
4 In the conclusion of his report, this is an
5 aspect of the treatment that he recommends for
6 Mr. Bonnetrouge in perpetuity in order to manage
7 his risk effectively.
8 He explained that the medication can have
9 significant side effects; in some cases, it could
10 be harmful to the patient's overall health.
11 Because of this, before he prescribes this
12 medication, Dr. Woodside has the patient undergo
13 a series of tests, and, in cases where the
14 medication is prescribed, he ensures that
15 patients are monitored closely from a medical
16 point of view. For example, they would undergo
17 regular blood testing, and they would be followed
18 by an endocrinologist to make sure the medication
19 is not compromising the patient's health in a
20 serious way.
21 Dr. Woodside also testified about what has
22 been referred to as "burnout" as a factor
23 reducing the risk of recidivism. Burnout refers
24 to the phenomenon whereby recidivism tends to
25 decrease as a person gets older. Dr. Woodside
26 says there is a decline in recidivism as a person
27 ages, but there are variations depending on the
Official Court Reporters
22
1 person and the type of offence. He said the rate
2 of decline of recidivism for pedophiles on the
3 whole is slower than it is for rapists. He said
4 that pedophiles have been observed to start to
5 show decline in recidivism at around age 50.
6 As I have already alluded to, Dr. Woodside's
7 view is that if Mr. Bonnetrouge consumes alcohol,
8 his risk is significantly enhanced. Alcohol has
9 the effect of removing inhibitions and many
10 violent offences are committed by persons who are
11 intoxicated. Several of Mr. Bonnetrouge's sexual
12 offences, including the predicate offences, were
13 committed when he had been consuming alcohol. So
14 Dr. Woodside considers total abstinence from
15 alcohol would be an essential component in
16 managing Mr. Bonnetrouge's risk.
17 Dr. Woodside talked about other factors as
18 well, including the possible benefits of therapy.
19 His view was that Mr. Bonnetrouge would have
20 access to cognitive behavioural therapy while in
21 custody, potentially intense programming, and
22 that he could also continues this type of therapy
23 in the community, albeit in a less intensive way.
24 Dr. Woodside's opinion is that it has not been
25 demonstrated that this type of therapy actually
26 reduces recidivism rates. He would recommend it
27 for Mr. Bonnetrouge in case it worked, but I
Official Court Reporters
23
1 understood his opinion to be that he would not
2 place great reliance on this type of measure as a
3 risk management method, and certainly not on its
4 own. Dr. Woodside noted that Mr. Bonnetrouge has
5 been exposed to therapy while in custody and has
6 not done well in those programs, which he felt
7 could be an indication of the chances, or lack
8 thereof, of success of this type of measure for
9 him in the future. Dr. Woodside also noted that
10 Mr. Bonnetrouge's cognitive deficits would
11 present an additional obstacle for him because
12 whatever treatment or therapy is delivered to him
13 would have to be adapted to his circumstances.
14 Dr. Woodside's overall assessment was that
15 he thought it unlikely that Mr. Bonnetrouge's
16 risk could be managed in the community in the
17 context of a long-term supervision order coupled
18 with a determinate sentence. His view is that
19 Mr. Bonnetrouge's risk will remain high
20 throughout his lifetime and he will require
21 mandated treatment throughout his lifetime.
22 As for Dr. Nesca, he is a doctor in clinical
23 psychology. He has extensive experience working
24 in correctional settings, in-patient psychiatry
25 units, academic studies, and private practice.
26 He does not disagree with Dr. Woodside's
27 diagnosis of Mr. Bonnetrouge, and, as I have
Official Court Reporters
24
1 mentioned, some of the things that came out in
2 his interview with Mr. Bonnetrouge seem to
3 support Dr. Woodside's diagnosis relating to
4 sexual preferences, in particular with respect to
5 the preference for non-consensual sexual
6 activity.
7 In Dr. Nesca's opinion, however,
8 Mr. Bonnetrouge's sexual preferences are
9 non-exclusive. In other words, he is not solely
10 attracted sexually to children and he is not
11 solely attracted to the concept of sexual
12 activity with a person who is not consenting.
13 Dr. Nesca felt this was very important from a
14 risk management point of view because sexual
15 preference, in his view, is not something that
16 can be treated per se. So where the deviant
17 preference is exclusive, there is, in a sense,
18 nowhere to go with a patient other than simply
19 trying to manage the sexual impulses. On the
20 other hand, if the preference is not exclusive,
21 then there can be a treatment and therapy
22 strategy that is focused on shifting towards the
23 non-deviant sexual preference of the patient.
24 Dr. Nesca testified about the burnout
25 theory. He said that, in his view, as
26 Mr. Bonnetrouge gets older, the effect of burnout
27 would be to make him more amenable to treatment.
Official Court Reporters
25
1 He considered it significant that Mr. Bonnetrouge
2 scored low on the core psychopathic traits on the
3 PCL-R because those traits are not effected by
4 burnout. So not having those traits, in
5 Dr. Nesca's opinion, as I understood it,
6 increases the chance that the risk would, in
7 fact, be reduced by the operation of burnout.
8 Dr. Nesca scored Mr. Bonnetrouge on the
9 PCL-R. He did arrive at a slightly different
10 score than Dr. Woodside's, but considering the
11 margin of error on the instrument, they
12 essentially arrived at equivalent scores.
13 Where Dr. Nesca disagreed with Dr. Woodside,
14 though, was about the use that could be made of
15 the result of Mr. Bonnetrouge's score on that
16 instrument. In Dr. Nesca's opinion, the only use
17 that can be made of the PCL-R instrument is to
18 pose, or not, a diagnosis of psychopathy. He
19 disagreed with Dr. Woodside's use of the tool as
20 a means of assessing a person's level of
21 antisociality and extrapolate that onto the risk
22 factor or the amenability for treatment. If his
23 view, the only relevance of Mr. Bonnetrouge's
24 result on the PCL-R is to say that he is not a
25 psychopath, which makes his prospect for
26 treatment and management in the community better
27 than if he were a psychopath.
Official Court Reporters
26
1 Another reason advanced by Dr. Nesca for not
2 putting any weight on the results of the PCL-R,
3 is that he said Mr. Bonnetrouge's score is in
4 line with the average score for aboriginal
5 inmates; it does not distinguish him from other
6 aboriginal inmates in any way.
7 Dr. Nesca disagreed entirely with
8 Dr. Woodside as far as the use of actuarial tools
9 such as the Static-99, V-RAG, or SORAG in
10 assessing the risk that an individual poses for
11 recidivism. His view is that these instruments
12 provide results for group behaviour and are
13 entirely useless to predict individual behaviour.
14 He also gave evidence about the statistical
15 calculations that were used in the development of
16 these models and the models used within these
17 instruments. He expressed a strong view that
18 these models are not useful at all when it comes
19 to predicting risks of individuals behaving in a
20 certain way. I will not attempt to summarize
21 what he said in this regard. I think what
22 matters is that his view, and it was clearly
23 expressed at the hearing, is that these tools
24 should simply not be used as risk assessment
25 tools in this context.
26 Another one of Dr. Nesca's significant
27 disagreements with Dr. Woodside's conclusion has
Official Court Reporters
27
1 to do with the relevance of Mr. Bonnetrouge's
2 cognitive difficulties. In Dr. Nesca's view,
3 Mr. Bonnetrouge's lack of success in the past
4 with cognitive therapy says very little about
5 what success he might have in the future. In his
6 opinion, Mr. Bonnetrouge's lack of success in the
7 programs that he has taken can probably be
8 explained in large part by his cognitive
9 difficulties. As I understood him, he thinks the
10 significance of Mr. Bonnetrouge's cognitive
11 problems was underestimated and understated in
12 Dr. Woodside's report. Dr. Nesca thinks it is in
13 error to look at past failures of these methods
14 as an indication that Mr. Bonnetrouge could not
15 have better outcomes in the future. He also
16 noted that programs not tailored to his needs
17 (for example, a program that would be delivered
18 in a classroom-type setting) would not have been
19 suited to him, would have been difficult for him
20 to benefit from, and would probably have been
21 very frustrating for him. This would affect not
22 only Mr. Bonnetrouge's chances of success in
23 those programs but also his ability to
24 participate, and his behaviour during the
25 program. So it may well result in manifestations
26 that could erroneously be interpreted as lack of
27 motivation or an unwillingness to participate,
Official Court Reporters
28
1 which are some of the things that are reported in
2 the correctional records.
3 Dr. Nesca talked about a therapy model that
4 has been developed more recently, which is called
5 the "Good Lives Model". This model is intended
6 to be tailored to the offender's specific needs
7 and limitations and which may provide a better
8 chance of success with Mr. Bonnetrouge.
9 On the whole, Dr. Nesca's conclusion about
10 the prospect of managing Mr. Bonnetrouge's risk
11 is not as pessimistic as Dr. Woodside's. He
12 believes that there is a reasonable possibility
13 that the combination of the burnout effect due to
14 aging, substance abuse treatment, and biological
15 interventions, as well as therapy, could result
16 in his risk being controlled in the community.
17 Each of these experts formed an opinion
18 about the level of risk that Mr. Bonnetrouge now
19 presents (on that, they were in agreement) and
20 about how that risk might be managed and what was
21 the likelihood of that being achieved.
22 As I have said, it is for the Court to
23 decide, in light of the evidence, whether it is
24 satisfied that there is a reasonable expectation
25 that a jail term, followed by a long-term
26 supervision order, could adequately protect the
27 public.
Official Court Reporters
29
1 A number of cases have discussed what the
2 term "reasonable expectation" should be taken to
3 mean in this context. One of those cases was a
4 case from this jurisdiction, R. v. Kudlak, 2011
5 NWTSC 29. I want to quote briefly from it at
6 paragraph 102. The Court was talking about this
7 subject and said, after having referred to other
8 cases:
9 The other principle that emerges
from this discussion is, as
10 articulated in much of the case
law that "there must be evidence
11 of treatability that is more than
an expression of hope and that
12 indicates that the specific
offender can be treated within a
13 definite period of time" ...
14 And here there is a reference to a number of
15 cases. The Court continues:
16 Arguably this principle has been
reinforced by the use of the
17 expression "reasonable
expectation" in s. 753(4.1) as
18 opposed to the term "reasonable
possibility" used in s.
19 753.1(1)(c). A "reasonable
expectation" may require a higher
20 level of certainty. And in this
regard, as noted in Johnson and
21 G.L., the offender's amenability
to treatment and the prospects for
22 success are critical factors to
address.
23
24 I agree with these comments. What is
25 required here is more than the expression of
26 hope. What is required is that there be evidence
27 that the specific offender, within a definite
Official Court Reporters
30
1 period of time, can be treated in such a way as
2 to reduce his risk. The implication is that by
3 virtue of the combined effect of the determinate
4 sentence and the period of long-term supervision,
5 the risk will have been reduced to an acceptable
6 level and that it will remain at that level even
7 in the absence of exterior controls.
8 The possibility that the risk might be
9 controlled is also not sufficient. In the case
10 of R. v. Goforth, 2007 SKCA 144, which was
11 decided under the provisions of Part XXIV of the
12 Code before the 2008 amendments, the trial judge
13 had approached the matter by saying that an
14 indeterminate sentence should only be imposed if
15 there was no possibility of management in the
16 community. The Court of Appeal underscored that
17 this was not the correct test and said that the
18 mere possibility that the risk could be managed
19 in the community was not enough. Goforth,
20 paragraphs 53 and 54.
21 As noted by the Court in Kudlak, in the
22 excerpt that I quoted earlier, it is arguable
23 that the language of the existing provision
24 creates a standard that is even more strict than
25 the one that applied under the previous regime.
26 Given this, what the Court of Appeal said in
27 Goforth on this issue is not only still
Official Court Reporters
31
1 applicable, but even more so perhaps.
2 Considering the whole of the opinions
3 expressed by Dr. Woodside and Dr. Nesca, I find
4 that the areas where they agreed on are more
5 significant, for the purposes of my decision,
6 than the areas where they do not. First, they
7 substantially agree on the diagnosis and on the
8 level of risk that Mr. Bonnetrouge currently
9 presents. Second, they agree that as he ages,
10 burnout is a factor that may reduce his risk, but
11 neither of them suggested that this burnout
12 factor ought to be relied on in and of itself to
13 manage the risk. Third, they both considered
14 biological intervention to be one of the
15 components required to manage his risk and to
16 manage Mr. Bonnetrouge's substance abuse problem.
17 Some of the areas of differences in their
18 opinions do not matter much in the circumstances
19 of this case. For example, as far as their
20 disagreement on whether actuarial instruments
21 should be used to measure risk, their difference
22 of opinion is inconsequential because, in the
23 end, they both agree that Mr. Bonnetrouge
24 presents a high risk to reoffend. Their
25 difference of opinion as to the use that should
26 be made of the result on the PCL-R, I do not find
27 is particularly significant either. They both
Official Court Reporters
32
1 arrived at essentially the same score and they
2 both agree that Mr. Bonnetrouge is not a
3 psychopath.
4 Dr. Nesca was critical of Dr. Woodside's use
5 of the high scores on the instrument as
6 suggesting a high level of antisociality, and he
7 suggested that this tool should only be used to
8 arrive or not arrive at the diagnose of
9 psychopathy. But in his own evidence, Dr. Nesca
10 also used the instrument for a purpose that was
11 other than simply this diagnosis or non-diagnosis
12 of psychopathy. He said that because
13 Mr. Bonnetrouge did not score high on the core
14 psychopathic traits on the PCL-R, burnout would,
15 in fact, be a factor that would reduce his risk
16 because, he said, burnout does not affect
17 psychopathic traits. So even Dr. Nesca, in a
18 sense, used the results on the PCL-R beyond
19 simply the determination of whether
20 Mr. Bonnetrouge is a psychopath or not. But all
21 that said, Dr. Nesca's point is well taken that
22 Mr. Bonnetrouge's score does not distinguish him
23 from other aboriginal offenders who are
24 incarcerated. So while I did understand why
25 Dr. Woodside explained that he considered it
26 relevant as a measure of antisociality, I would
27 not place great reliance on the score on the
Official Court Reporters
33
1 PCL-R as far as deciding, ultimately, what to do
2 in this matter. I also note that Dr. Nesca
3 agrees with Dr. Woodside that Mr. Bonnetrouge
4 suffers from antisocial personality disorder.
5 Their disagreement on the use of the PCL-R is,
6 given this, not as significant as it might
7 otherwise be.
8 Perhaps the most significant disagreement
9 between the two experts is the effectiveness that
10 therapy could have for Mr. Bonnetrouge and, in a
11 somewhat related way, what to make of his past
12 lack of success with the programming.
13 I understand Dr. Nesca's point about how
14 Mr. Bonnetrouge's cognitive deficiencies would no
15 doubt have impacted on his ability to benefit
16 from the treatment that he was offered.
17 Dr. Nesca's views, to put it bluntly, is that
18 there is a shared responsibility for
19 Mr. Bonnetrouge not having had success with
20 treatment. Dr. Nesca attributes some of the
21 responsibility for that to the correctional
22 authorities for not having provided him with
23 treatment and programs that he could actually
24 benefit from. This is in the same vein as an
25 argument made by Mr. Bonnetrouge's counsel about
26 the failure of the correctional authorities to
27 allow Mr. Bonnetrouge to benefit from treatment
Official Court Reporters
34
1 early on in his correctional history.
2 Because the very first time Mr. Bonnetrouge
3 was sentenced as a youth, the Court had
4 recommended that he receive treatment, something
5 that the correctional authorities at the time
6 decided not to do because they felt he was too
7 young, and something that was apparently never
8 followed up on.
9 Defence also argued that more could have
10 been done to explore into more detail what were
11 the factors that contributed to Mr. Bonnetrouge
12 doing well in a certain time frame, when he
13 resided with his cousin in Vancouver, and appears
14 not to have been convicted for any offences.
15 This is referred to in Dr. Woodside's report, and
16 it is stated in there, among other things, that
17 Mr. Bonnetrouge did not have contact information
18 for his cousin. Dr. Woodside acknowledged in his
19 evidence that he did not follow up on this or
20 make any inquiries to try to track this cousin
21 down and try to find out more about what factors
22 may have been at play during this period of time
23 where Mr. Bonnetrouge had better outcomes in the
24 community. Defence argued that more steps should
25 have been taken to follow up on this. The
26 Crown's position, as I understood it, was that
27 Dr. Nesca did not follow up on this aspect of
Official Court Reporters
35
1 things either and that if it was deemed
2 important, the defence could have brought out
3 additional information about this. But Defence
4 emphasized these various points, urging the Court
5 to conclude that the failure of past programming
6 to reduce Mr. Bonnetrouge's risk is not based
7 solely on the fact that he his not treatable or
8 that therapy cannot work for him. I think the
9 evidence bears this out at least to some extent.
10 Of course this court has to be very careful
11 in assessing why things were or were not done
12 years ago with respect to an offender. What I do
13 accept is Dr. Nesca's opinion that some of the
14 programs that were used with Mr. Bonnetrouge were
15 not the best suited for him given his cognitive
16 deficits, and I also accept that some of the
17 instances where lack of success and apparent lack
18 of motivation were noted in the correctional
19 records may have been due to how these programs
20 were delivered and the fact that they did not
21 work for him. And it is also true that there are
22 other instances where the correctional documents
23 do show a more positive picture about his
24 motivation and attitude.
25 But without deciding the point, even if I
26 went as far as making a finding that
27 Mr. Bonnetrouge's failure at treatment is a
Official Court Reporters
36
1 shared responsibility, that the authorities did
2 fail him when he first came into the correctional
3 system at a young age, and even if I discounted
4 the failure of past recent attempts as a way of
5 predicting success of future treatment attempts,
6 the question remains whether, bearing that caveat
7 in mind, there is a basis to have the reasonable
8 expectation referred to paragraph 753(4.1).
9 As I have said before, the question that I
10 must answer is not whether there is a possibility
11 that other treatment methods might work or the
12 possibility that Mr. Bonnetrouge's risk may be
13 controlled in the community if, for example, he
14 were released in an environment including
15 positive models. It may well be that a new
16 therapeutic approach such as the Good Lives
17 Model, or something else, will achieve better
18 results for him than what has been done in the
19 past. And it is likely true, and I think
20 everyone would agree, if released in the
21 community, his success will depend in part on who
22 he associates with and what supports he has.
23 I accept the submission that these
24 possibilities exist. I accept that some things
25 that have not been tried should be tried to
26 assist him in the control of his risk. But
27 possibility or hope is not enough at this stage.
Official Court Reporters
37
1 There is nothing concrete in the evidence, in my
2 view, to find that based on these factors alone,
3 there is a reasonable expectation that within a
4 determined period of time Mr. Bonnetrouge will no
5 longer present a risk to the public. Saying that
6 some of the things that have been tried have not
7 worked and it is not all his fault because they
8 may have been ill-suited for his needs is one
9 thing. Saying that there is a basis to conclude
10 that the things that have not been tried can be
11 reasonably expected to succeed is quite another.
12 There is no question, as I said, that
13 Dr. Nesca, in the end, is more optimistic than
14 Dr. Woodside about Mr. Bonnetrouge's prospects.
15 But even taking Dr. Nesca's evidence at its
16 highest and accepting that the therapy along the
17 Good Lives Model line would have better chances
18 of success because it is better suited for his
19 needs, even Dr. Nesca did not say that therapy
20 alone could control Mr. Bonnetrouge's risk, nor
21 does he say that burnout alone can be expected to
22 do so. Both experts envisaged more, including
23 biological intervention, getting the alcohol
24 dependency disorder under control, and Mr.
25 Bonnetrouge complying with treatment. To me,
26 this raises a number of concerns.
27 First, with respect to the biological
Official Court Reporters
38
1 intervention, Mr. Bonnetrouge would have to be
2 able to take this medication. The possibility of
3 treatment with a sex drive reduction medication
4 is often a proposed method of treatment when
5 dealing with repeat offenders who face a
6 dangerous offenders designation and the potential
7 for an indeterminate sentence. This type of
8 evidence has been presented and this type of
9 treatment option has been referred to in several
10 dangerous offenders' hearings that have taken
11 place in this court in recent years. In R. v.
12 Kudlak, there was evidence about that. It was
13 also the case in R. v. Sassie, 2012 NWTSC 27, and
14 R. v. Melanson, 2011 NWTSC 39.
15 Here there are indications that
16 Mr. Bonnetrouge has expressed he would be willing
17 to take this type of treatment, but he has never
18 taken it. There are also a lot of unknowns about
19 this. Dr. Woodside said there was no immediate
20 reason to think Mr. Bonnetrouge would not be a
21 candidate for this type of treatment, but the
22 evidence is also that before he would prescribe
23 it, he would have to have certain tests done on
24 Mr. Bonnetrouge and he would also want to monitor
25 him regularly for potential adverse side affects.
26 So there is a possibility that this treatment
27 could be available to him, but there are also a
Official Court Reporters
39
1 lot of unknowns.
2 The second question has to do with
3 compliance. Biological intervention would be
4 part of a number of long-term strategies that
5 would, once Mr. Bonnetrouge is back in the
6 community, require him to comply with the
7 treatment plan with the medications but also
8 comply with other things like alcohol abstinence
9 conditions and following whatever therapy session
10 or programs would be deemed beneficial for him.
11 It cannot be overlooked that
12 Mr. Bonnetrouge's level of compliance with court
13 orders while in the community has not been great.
14 This is not surprising considering his substance
15 abuse problem, his antisocial personality
16 disorder, and his paraphilia. A long-term
17 supervision order would entail a higher level of
18 supervision and potentially more immediate
19 consequences in the event of a breach of
20 something like a probation order. Still, the
21 status of being on parole and at risk of
22 immediate and indeterminate custody is the most
23 stringent regime of supervision that a person can
24 be under in the community. It is the one that
25 presents the highest incentive for compliance.
26 The breach of a long-term supervision order
27 does not have the same consequence, as
Official Court Reporters
40
1 Mr. Anderson explained, as the breach of a parole
2 condition while on release for an indeterminate
3 sentence. When it is alleged that a person has
4 breached a long-term supervision order, the
5 person may go back into custody for a period of
6 time but only up to a maximum of 90 days unless a
7 charge is laid. If a breach charge is laid, then
8 it is dealt with by way of prosecution on that
9 charge. It is not at all the same as the
10 immediate consequence of revocation of parole.
11 The last aspect, and, really, this is the
12 most significant, just as it was in Kudlak, is
13 that some controls appear to be required in
14 perpetuity.
15 On the whole of the evidence, I am satisfied
16 that Mr. Bonnetrouge will require supervision and
17 controls for a very long time and, in some
18 respects, for his whole life. A determinate
19 sentence followed by a long-term supervision
20 order will only provide a finite period of time
21 where those controls can be in place.
22 Mr. Bonnetrouge is now in his mid thirties.
23 He has been on remand for fours years. If a
24 determinate sentence in the range proposed by
25 defence were to be imposed, he would receive, in
26 effect, a further jail term of three to four
27 years followed by a maximum of ten years of
Official Court Reporters
41
1 supervision if he got credit for his remand time
2 on a one-to-one ratio. If he got enhanced credit
3 for his remand time as defence suggests he
4 should, the further jail term would be in the
5 range of one to three year. So the time frame
6 for which he would be under some form of control
7 or other could be anywhere between 11 and 14
8 years from today's date. This would take him to
9 the end of his 40s or just around the time he
10 would turn 50. At that point, he would be
11 without any supervision or controls. Any
12 measures employed up until then to hopefully
13 successfully control his risk would no longer be
14 mandated by anything, whether it is the sex drive
15 reduction medication, possibly medication to
16 assist him in abstaining from alcohol, or any
17 other measures required to maintain his sobriety,
18 or therapeutic efforts. All of this continuing
19 would, at that point, be dependent solely on his
20 choice to continue with it or not.
21 There is of course the possibility at the
22 expiration of his sentence, Mr. Bonnetrouge would
23 continue to take sex drive reduction medication,
24 would continue to abstain from alcohol, and would
25 continue to address his issues through therapy
26 and whatever supports would be required at that
27 point. That is an unknown.
Official Court Reporters
42
1 I recognize that Mr. Bonnetrouge has been on
2 medication before while on release. There is
3 reference to this in the reports from 2002 about
4 his parole being temporarily suspended to allow a
5 change in his medication regime. Those
6 medications, though, were antidepressants and
7 mood stabilizers. They are medications that can
8 also have side effects. But the type of
9 medication we are talking about here is really
10 quite different.
11 The only evidence I have about people's
12 inclination to continue taking them when they are
13 no longer compelled to do so by a court order or
14 by an order of the Parole Board is that according
15 to Dr. Woodside, the people he has had -- at
16 least treated with these drugs, stop seeing him
17 when their sentence is over. Whether
18 Mr. Bonnetrouge would be an exception and
19 continue with his medical regime is an unknown.
20 It is not possible to predict the future.
21 The knowns at this point are that Mr. Bonnetrouge's
22 paraphilia are not curable. They are, at best,
23 treatable with the view of managing his risk.
24 His antisocial personality disorder is a
25 condition that is difficult to treat. His
26 alcohol addiction, again, is not something that
27 can be cured. It is something that can be, at
Official Court Reporters
43
1 best, managed. His cognitive difficulties are
2 fixed, although from a therapeutic perspective,
3 according to Dr. Nesca, they could be overcome in
4 the sense that therapy suited to his specific
5 needs could be more successful than what he has
6 been exposed to so far. But my assessment of the
7 evidence as a whole leads me to this conclusion:
8 If Mr. Bonnetrouge's risk is to be controlled in
9 the community, it will be through a combination
10 of various things which, I am satisfied, will
11 have to be in place for a very long time. I am
12 not satisfied that there is a reasonable
13 expectation that the combination of a determinate
14 sentence and a long-term supervision order would
15 adequately protect the public because I am not
16 satisfied that Mr. Bonnetrouge's risk can be
17 reduced in that timeframe to the point that he
18 could then be completely free in the community
19 and the public still protected.
20 The Supreme of Canada, in R. v. Ipeelee, 2012
21 SCC 113, stated that the special considerations
22 that apply in sentencing aboriginal offenders
23 apply to dangerous offender proceedings. I have
24 not overlooked the fact that Mr. Bonnetrouge is
25 an aboriginal offender. I have not overlooked
26 the fact that he has faced very difficult
27 circumstances as a child that no doubt
Official Court Reporters
44
1 contributed to his antisociality and his
2 addiction to alcohol. Sadly, many children in
3 this jurisdiction continue to grow up in
4 circumstances that are difficult and are exposed
5 to alcohol abuse and neglect.
6 This court was dealing with another offender
7 who had a very difficult background in Kudlak,
8 and in addressing whether that offender's
9 aboriginal status could justify a different
10 outcome, the Court said the following at
11 paragraph 107:
12 I have taken into consideration
Mr. Kudlak's difficult childhood.
13 He had a chaotic family life
marked by alcohol abuse and
14 violence. Sadly many of our
northern aboriginal communities
15 are afflicted by similar problems.
I have no doubt that part of the
16 reason for the difficulties that
confronted the Kudlak family
17 thirty some years ago was the
dislocation of the family from a
18 more traditional, land-based way
of life to the settled community
19 of Cambridge Bay where they became
dependent on welfare. I am also
20 sure that some of Mr. Kudlak's
early problems were due to a lack
21 of resources available in
Cambridge Bay for diagnosing and
22 effectively treating childhood
problems. These types of
23 disruptive childhoods are all too
common as well in many of our
24 communities.
25 Mr. Kudlak's psychological
problems and the sexual deviance
26 cannot, however, be traced to his
aboriginal heritage. These are
27 traits that developed at an early
age. His victims have, for the
Official Court Reporters
45
1 most part, been aboriginal as
well, including members of his
2 family, and they have been
affected by his uncontrolled
3 behaviour. The need for
protecting the public is just as
4 acute in a northern aboriginal
community as anywhere else. In a
5 case such as this, where public
protection is paramount,
6 incarceration is the only
alternative, whether one is
7 considering an aboriginal or
non-aboriginal offender.
8
9 The same can be said here. The sad reality
10 is that Mr. Bonnetrouge has proven to be very
11 dangerous for members of his community, who are
12 in majority aboriginal. He has caused great harm
13 to young children and others who, by virtue of
14 various circumstances, were in vulnerable
15 positions. He has done this consistently over
16 the years and he did so again in 2009 when he
17 committed the two offences that he must be
18 sentenced for today.
19 One can have empathy for the situations that
20 he himself has faced when he was growing up and
21 for the fact that throughout all these years, in
22 and out of the correctional system, he has not
23 had access to programing that was suited to his
24 specific needs or to the type of treatment and
25 programming he would have needed at a much
26 younger age when he first came into contact with
27 the criminal justice system. But as the Court
Official Court Reporters
46
1 said in R. v. Evans, 2008 Carswell Ont 994, at
2 paragraph 127: "Sympathy cannot ground the
3 conclusion that there is a reasonable expectation
4 of controlling his risk in the community."
5 It must be remembered as well that an
6 indeterminate sentence does not mean that
7 Mr. Bonnetrouge can never be released back in the
8 community. It does not leave him without hope of
9 eventually being released. The various measures
10 to control his risk that were discussed at length
11 at this hearing remain relevant. The type of
12 therapeutic approaches referred in the evidence,
13 tailored to his needs and taking into account his
14 cognitive deficit, should be explored. The use
15 of sex drive reducing medication, when the time
16 is appropriate, should be explored as well,
17 especially if he is willing to take this type of
18 medication. Anything that could have been
19 developed under the term of a determinate
20 sentence followed by a long-term supervision
21 order can be attempted just the same under the
22 parameters of an indeterminate sentence with a
23 view, if the risk can be controlled, that he
24 could be released into the community on parole.
25 It is not uncommon for people who have received a
26 dangerous offender designation and been sentenced
27 to an indeterminate term of imprisonment to
Official Court Reporters
47
1 actually be able to be released as on parole.
2 The fundamental difference is that if that
3 happens and if he is released on parole, he will
4 be under a regime that will ensure that if he is
5 unwilling or unable to follow through on the
6 risk-reducing measures, the authorities will be
7 in a position to act immediately. And I have
8 concluded, sadly, that in this case that is the
9 only way to adequately protect the public against
10 the risk that he represents.
11 For those reasons, I declare Mr. Bonnetrouge
12 to be a dangerous offender pursuant to Section
13 753 of the Code, and, under the same provision, I
14 sentence him to an indeterminate term of
15 imprisonment.
16 .................................
17
18 Certified Pursuant to Rule 723
of the Rules of Court
19
20
21 Jane Romanowich, CSR(A)
Court Reporter
22
23
24
25
26
27
Official Court Reporters
48
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.