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Abstract: Transcript of the Reasons for Sentence (Dangerous Offender application)
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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ORDER, INFORMATION THAT MAY IDENTIFY THE COMPLAINANTS REFERRED TO IN THE PROCEEDINGS AND IN THE EXHIBITS FILED MAY NOT BE PUBLISHED, BROADCAST OR TRANSMITTED IN ANY MANNER, PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE Official Court Reporters 1 THE COURT: I want to remind everyone that 2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
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