|
Criminal - Sentencing - Long-term Supervision Order (LTSO). R. v. Ouedraogo [phallometric testing/treatment]
In R. v. Ouedraogo (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal sentencing appeal.
Here the court considers 'phallomatric testing' as a treatment term of an LTSO order:(5) Issue 5: The Recommendation that the Appellant Submit to Phallometric Testing
[56] The sentencing judge held that, among other conditions, the appellant “submit to any actuarial, phallometric, or other testing as required by [his] LTSO supervisor”. The appellant claims the phallometric testing recommendation should be removed.
[57] In R. v. Ramgadoo, 2012 ONCA 921, 300 O.A.C. 149, at para. 61, this court held that,when deciding whether to make a long-term offender or a dangerous offender finding, sentencing judges should consider a mandatory treatment recommendation as one of the conditions of the order, where necessary for the particular offender and where the offender has demonstrated a willingness to comply. [58] However, without the offender’s consent, there is no jurisdiction to order phallometric testing as there is no provision in the Code to allow such an order: R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 34.
[59] The Crown concedes that a condition to submit to testing was not available as there was no evidence the appellant was willing to comply with phallometric testing. However, the Crown claims this ground of appeal is premature as the Parole Board of Canada is not the court: it only imposes the conditions of LTSOs, and no conditions have yet been set.
[60] I disagree. Since there is no legal basis to include a recommendation for phallometric testing absent the consent of the offender, I would allow the appeal of the sentencing judge’s recommendation that the appellant undergo phallometric testing and vacate the recommendation. . R. v. Ouedraogo
In R. v. Ouedraogo (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal sentencing appeal.
Here the court considers the test for a 'long-term supervision order':(a) The Test to Impose a LTSO
[27] A court may find an offender to be a LTO where (i) a sentence of two years or more is to be imposed, (ii) there is a substantial risk the offender will reoffend, and (iii) there is a reasonable possibility of eventual control of risk in the community: Criminal Code, s. 753(1).
[28] Section 753.1(2)(b) provides that:(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
...
(b) the offender(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [Emphasis added.] [29] The first two criteria in s. 753.1 speak to the level of risk the offender is likely to pose in the future having regard to the offender's past conduct. They also establish the justification for subjecting an offender to a special sentencing regime based on the need for public protection. The Crown has the onus of proving those factors on the standard of proof beyond a reasonable doubt: R. v. F.E.D., 2007 ONCA 246. 84 O.R. (3d) 721, at para. 52, leave to appeal refused, [2007] S.C.C.A. No. 568.
[30] The “substantial risk” threshold is lower than the threshold of “likelihood” to reoffend, used in respect of dangerous offender provisions. Unlike the “likelihood” threshold, “the sentencing judge must merely be satisfied that ‘there is a substantial risk that the offender will reoffend’”: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 75.
(b) Whether the Sentencing Judge Misapprehended the Evidence
[31] The sentencing judge imposed a 10-year LTSO. The appellant received a sentence greater than two years and there is a reasonable possibility of eventual control of risk in the community, such that the only issue was whether the appellant was at substantial risk to reoffend. The sentencing judge held that the appellant was at a substantial risk to reoffend and therefore met the criteria set out in s. 753.1(2)(b)(i) of the Criminal Code. He considered substantial risk to turn on the question of likelihood which he interpreted to mean more likely than not.
[32] The appellant claims the sentencing judge misapprehended the evidence in concluding that the appellant was at substantial risk to reoffend and cause physical injury or psychological damage. For the reasons that follow, I disagree.
[33] In deciding that the appellant was at substantial risk to reoffend, the sentencing judge correctly set out the applicable threshold:Is there a likelihood that [the appellant] will cause death or injury or inflict severe psychological damage to other persons? “Likelihood” is more than a mere possibility; and it is less than beyond a reasonable doubt: R. v. J.T.H., 2002 NSCA 138, [2002] N.S.J. No. 476 at para. 50; Lyons, supra, at p. 364-365. I interpret “likelihood” to mean more likely than not, or a balance of probabilities. . R. v. Ouedraogo [issue estoppel]
In R. v. Ouedraogo (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal sentencing appeal.
The court finds that 'issue estoppel' did not apply, here where the court allowed a Crown "Long Term Offender (“LTO”) application to proceed although the same parties had litigated the same issue in the Ontario Court of Justice (“OCJ”)":(1) Issue 1: Denial of an Order to Estop the LTO Designation for These Offences
[17] The appellant objected to the imposition of a LTSO in this case to “prevent the Crown from litigating the same issue twice”, as the factual record is similar and the same remedy was sought. The sentencing judge refused to do so, holding that issue estoppel did not apply and that the Crown was permitted to seek LTSOs in both this and the OCJ sentencing proceedings.
[18] The appellant concedes that a consecutive sentence is appropriate as this trial was separate from the OCJ trial and sentence. However, he claims that no LTSO should be imposed as the appellant was already subject to a 10-year LTSO pursuant to the OCJ sentence and both offences were considered in imposing that sentence.
[19] I do not agree. As noted by this sentencing judge, issue estoppel does not apply to individual sentencing decisions. While the Crown may not lead evidence that is inconsistent with findings made in an accused’s favour in a prior LTO proceeding, that is to ensure fairness to an accused and avoid inconsistent verdicts: R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 52-57. That, however, does not mean there cannot be two verdicts in two different LTO proceedings.
[20] In R. v. Thompson, 2014 ONCA 43, 118 O.R. (3d) 676, at para. 61, leave to appeal to S.C.C. refused, 35932 (September 25, 2014), this court held that:Findings of fact made by a sentencing judge under s. 724(2)(b) cannot found an issue estoppel. It would seem incongruous to permit findings made in some sentencing proceedings to serve as a foundation for the operation of the doctrine, yet deny the same status to others. [Citations omitted.] [21] Moreover, the language of the Criminal Code makes it clear that an offender can be subject to more than one LTSO. Section 755(2) of the Code provides that,The periods of long-term supervision to which an offender is subject at any particular time must not total more than 10 years. [Emphasis added.] [22] Use of the plural “periods” suggests that an offender can be subject to more than one LTSO.
[23] In sum, issue estoppel does not apply to individual sentencing decisions as different sentencing judges may arrive at different conclusions as to the appropriateness of a sentence, including a LTSO: see R. v. Punko, 2012 SCC 39, [2012] 2 S.C.R. 396, at para. 19; Thompson, at para. 61. One judge is not bound by another’s decision regarding an LTSO as each application is focussed on the sentence for the offence before them.
[24] In imposing the OCJ sentence, the OCJ judge properly considered the appellant’s subsequent conviction. Likewise, this sentencing judge properly considered the appellant’s prior conviction and the OCJ sentence in deciding an appropriate sentence for these offences and bearing in mind the appellant’s pattern of behaviour and future risk of reoffending. . R. v. J.C.
In R. v. J.C. (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal from a criminal dangerous offender designation, substituting a long-term supervision order (LTSO):[4] This is an appeal against the dangerous offender designation. The appellant submits that the trial judge failed to comply with R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, provided insufficient reasons for decision, and erred in assessing his prior criminal record.
[5] For the reasons that follow, I would allow the appeal in part by setting aside the order designating the appellant a dangerous offender, substitute a designation as a long-term offender, and uphold the trial judge’s imposition of a determinate sentence followed by a 10-year LTSO.
....
(1) Did the trial judge fail to consider intractability at the Designation Stage, as mandated by Boutilier?
[14] Boutilier establishes that before designating a dangerous offender, a sentencing judge must be satisfied that the offender poses a high likelihood of harmful recidivism and that his or her conduct is “intractable”. The court defined intractable conduct as “behaviour that the offender is unable to surmount”: Boutilier, at para. 27. This requires the sentencing judge to conduct a prospective assessment of dangerousness, so that only offenders who pose a future risk are designated as dangerous and face the possibility of being sentenced to indeterminate detention.
[15] The court in Boutilier further clarified that the prospective assessment of dangerousness necessarily involves the consideration of future treatment prospects: at para. 43. Offenders will not be designated as dangerous if their treatment prospects “are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable”: Boutilier, at para. 45.
....
[37] Although I would set aside the appellant’s designation as a dangerous offender, I have not found any reviewable error in the trial judge’s findings that his offending conduct satisfied the patterns of behaviour described in ss. 753(1)(a)(i) and (ii) of the Criminal Code.
[38] The issue that arises is the appropriate sentencing disposition in light of these findings. Since the parties did not directly address this issue in their initial written or oral submissions, we invited them to provide written submissions following the hearing.
[39] In those submissions, both parties accept that in these circumstances, it would be appropriate to designate the appellant as a long-term offender, and impose a determinate sentence followed by the 10-year LTSO. In fact, this was the disposition sought by defence counsel at first instance, while the Crown at that time agreed that a determinate sentence followed by a 10-year LTSO was an available and appropriate disposition if a dangerous offender designation was not made.
[40] The appropriateness of this disposition is reinforced by the fact that although the trial judge designated the appellant as a dangerous offender, he sentenced the appellant to a determinate sentence followed by the 10-year LTSO.
[41] I would therefore set aside the appellant’s designation as a dangerous offender, substitute a designation as a long-term offender, and uphold the determinate sentence followed by a 10-year LTSO, as imposed by the trial judge.
|
