J.W.R. v. British Columbia (Attorney General)

2017 BCSC 1272 J.W.R. v. British Columbia (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.W.R. v. British Columbia (Attorney General), 2017 BCSC 1272 Date: 20170724 Docket: 93060 Registry: Victoria Between: J.W.R. Applicant And: Attorney General of British Columbia Respondent Restriction on publication: A prior order has been made pursuant to s. 486(3) [now s. 486.4] of the Criminal Code that prohibits the disclosure of any information that could identify the complainants or witnesses. Corrected Judgment: The reasons for judgment have been corrected on August 1, 2017 at paras. 28, 32 and 57 and have also been edited for publication purposes Before: The Honourable Mr. Justice B.D. MacKenzie Reasons for Judgment Counsel for the Crown: K.D. Madsen The applicant appearing in person: J.W.R. Place and Date of Hearing: Victoria, B.C. May 1-5, 2017 Place and Date of Judgment: Victoria, B.C. July 24, 2017

INTRODUCTION [1] On November 7, 2003, Kirkpatrick J., as she then was, convicted J.W.R. of numerous historical offences of sexual and physical abuse involving four of his children, a granddaughter and a friend of one of his children. These offences occurred approximately between 1965 and December 1984, and ranged from common assault to "rape" of his eldest daughter over a period of several years, commencing when she was 13 years old. The reasons for judgment are indexed as R. v. R.(J.W.), 2003 BCSC 1694. This was the second trial on these charges. Citing concerns in the jury charge, the Supreme Court of Canada overturned the convictions at the first trial (R. v. J.W.R., 2001 SCC 65). This eventually led to the convictions entered by Kirkpatrick J. in 2003. The court summarized the seriousness of J.W.R.'s offending by stating: "It is difficult to conceive of a more brutal violation of his children's trust His behaviour was abhorrent, despicable and horrific." [2] Following conviction, the Crown applied under the relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46, to have the court designate J.W.R. as a dangerous offender. After hearing evidence from several psychiatrists and psychologists, in reasons for judgment indexed as R. v. R.(J.W.), 2005 BCSC 75, Kirkpatrick J. found that J.W.R. met the criteria for a dangerous offender designation. Nevertheless, she exercised

the discretion that was then available to the court and declined to make this designation, on the basis that J.W.R.'s threat to the public could be reduced to an acceptable level by the imposition of a determinate sentence and a long-term supervision order ("LTSO"). As a result, Kirkpatrick J. determined a global sentence of 16 years was warranted. J.W.R. was credited with the equivalent of 11 years of pre-sentence custody, and ultimately received an effective sentence of five years imprisonment, to be followed by a 10 year LTSO, the maximum length of time for such an order. J.W.R. appealed both his conviction and sentence, including the imposition and length of the LTSO. The appeals were dismissed by the Court of Appeal in 2007 and 2010, respectively, indexed at 2007 BCCA 452 and 2010 BCCA 66. [3] After serving a portion of his sentence, in March 2006 J.W.R. was released on parole. The LTSO took effect on January 19, 2010, J.W.R.'s warrant expiry date. For reasons which J.W.R. has opted not to disclose, he left Canada without authorization in March 2010 and travelled to California, contrary to the conditions of the LTSO. As J.W.R. has dual citizenship, his entry into the United States was routine. He remained in California until December 2012, before being extradited to Canada. J.W.R. resisted extradition and was detained in custody awaiting a decision on the extradition

application. As a result, in order to account for the period of time J.W.R. was out of Canada, his LTSO is currently set to expire on October 19, 2022, instead of early 2020. [4] On this application, J.W.R. applies under s. 753.2(3) of the Criminal Code for an order terminating or reducing the period of time he must comply with the LTSO on the ground that he "no longer represents a substantial risk of reoffending and thereby being a danger to the community." J.W.R. has the onus of proving this ground on a balance of probabilities. While this section also permits an application to be made by a member of the Parole Board of Canada or the offender's parole supervisor, J.W.R.'s application is not supported by his parole supervisor. J.W.R. also had initially asked the court to give him credit for the time he was detained in custody in California, pending a decision on the extradition application. I ruled I had no jurisdiction to do so and that it was not properly before the court in any event. In due course, J.W.R. resiled from advancing this part of his argument. [5] At the outset, I note that J.W.R., who was a practising lawyer in British Columbia for several years prior to his incarceration, as well as in California, spent some time on this application pointing out what he submits were frailties in the complainants' evidence at his two trials. J.W.R. has however acknowledged that the Court of Appeal canvassed those issues after his second conviction and thus they are not relevant on this application. I should also add that J.W.R. has made a very able submission, and presented his argument in a professional manner, even though he continues to profess his innocence, as he is entitled to do, despite the convictions that were registered after two lengthy trials.

DISCUSSION [6] Section 753.2(3) of the Criminal Code states, in part: (3) An offender who is required to be supervised may apply to a superior court of criminal jurisdiction for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being a danger to the community. The onus of proving that ground is on the applicant. [7] There are three issues to resolve on this application. The primary one is of course whether J.W.R. has established on a balance of probabilities that he no longer presents a substantial risk of reoffending and thereby is no longer a danger to the community. However, as preliminary matters, the court needs to determine the evidentiary onus on an application under s. 753.2(3) of the Criminal Code and to determine the meaning of the phrase "substantial risk of reoffending." How should the court interpret s. 753.2(3) of the Criminal Code? The Crown's Position [8] Though the Crown is the respondent on this application, J.W.R. set out his arguments on the interpretation of s. 753.2(3) and the appropriate evidentiary onus in his Reply to the Crown's submissions. Accordingly, it is appropriate to first set out the Crown's position on these issues. [9] The Crown submits that the overall principles outlined in Part XXIV of the Criminal Code inform the

language used in s. 753.2(3). In this regard, the Crown says the primary purpose of the LTSO regime, and Part XXIV more generally, is to protect the public, and that an LTSO aims to achieve this through the rehabilitation and reintegration into society of long-term offenders. [10] Both with respect to the threshold question of whether an offender is or could be designated a dangerous or a long-term offender, and to an application under s. 753.2(3), the Crown poses the issue as follows: One of the vexing issues in relation to Part XXIV sentences is measuring the unquantifiable. Prediction of likelihood of future offences is not actuarial science. While statistics can predict probabilities, and past behaviour is one of the criminal law's tools for predicting future behaviour, it remains elusive to predict whether a specific individual will commit a particular sort of crime. The assessment of a likelihood that an offender will reoffend is a complex task that may not lend itself to precise articulation. The nature and limits of psychiatric evidence will not always provide a dispositive answer, and must be approached realistically and in conjunction with all the evidence when assessing whether the legal burden has been met [11] In this analysis, the Crown also refers to the comments of La Forest J. in R. v. Lyons, [1987] 2 S.C.R. 309 at 365-366: Counsel for the appellant cited both

academic and judicial authority recognizing the inability of psychiatrists, or anyone else for that matter, to predict accurately future events. This is hardly a revelation. Indeed, the psychiatrists who testified at the hearing in the present case expressly disavowed any such claim. It seems to me that the answer to this argument can be briefly stated. The test for admissibility is relevance, not infallibility. Judges at Part XXI hearings do not assume that psychiatrists can accurately predict the future; however, psychiatric evidence is clearly relevant to the issue whether a person is likely to behave in a certain way and, indeed, is probably relatively superior in this regard to the evidence of other clinicians and lay persons [12] The Crown submits that the court's assessment of the reasonable possibility of eventual control in the community is not a question of proof. Rather, the question is always whether the risk to the public can be reduced to an acceptable level by a determinate sentence alone, or alongside an LTSO. In attempting to answer this difficult question, the court must balance competing risks. [13] The Crown submits that when attempting to predict the future, the choice is "between the alternative risks: the risk of harm to potential victims or the risk of unnecessarily supervising offenders previously judged to be dangerous." The Crown further submits that

when it proves the risk of re-offence under Part XXIV, then the balance between protection of the public and the liberty of an offender favours the offender bearing what ultimately may be unnecessary, yet tailored measures rather than risk harm to innocent victims. [14] Turning to the specific question of how to interpret s. 753.2(3) and the evidentiary onus of proving there is no "substantial risk of offending," the Crown observes that the Criminal Code does not define the phrase "substantial risk" in either s. 753.1 or 753.2(3), nor have counsel or J.W.R. found any jurisprudence that interpret the latter provision. The Crown therefore refers to the Concise Oxford Dictionary, 8th ed., which defines "substantial" as "of real importance or value" or "having substance, real" and "risk" as "a chance or possibility of danger, loss, injury, or other adverse consequences." [15] At the same time I note that the Concise Oxford English Dictionary, 11th ed., defines "substantial" as "real and tangible rather than imaginary" and defines "risk" as "the possibility that something unpleasant will happen." Based on the authorities referred to above, and the scheme and purpose of Part XXIV of the Criminal Code, it is clear s. 753.2 is focused on "risk", and that substantial risk means a real, not imaginary, risk of the possibility of physical or psychological harm to other persons that is

beyond the merely trivial or annoying. (See Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 62.) Substantial risk to reoffend does not mean a certainty to reoffend. [16] The Crown also refers to how the case law has interpreted this phrase in other contexts. In R. v. Davis, 2012 MBQB 9, aff'd 2012 MBCA 98, the court stated, in reference to the meaning of "substantial risk" in s. 753.1(1)(b) of the Criminal Code: [65] First, I note that the concept in a long-term offender analysis of "a substantial risk" that the offender will reoffend is materially different than the concept in the dangerous offender analysis at play here, of an offender constituting a threat to life or safety based on evidence of "a likelihood" of committing further danger or harm which is based on a pattern of behaviour. The requirement of "substantial risk" in a long-term offender analysis is broader and thus potentially captures more conduct or behaviour. [17] Similarly, while not referring to an LTSO, the Supreme Court of Canada in R. v. Mentuck, 2001 SCC 76, defined at para. 34 "a real and substantial risk" as: a risk the reality of which is well-grounded in the evidence. It must also be a risk that poses a serious threat to the proper administration of justice. In other words, it is a serious danger sought to be avoided that is required, not a substantial benefit

or advantage to the administration of justice sought to be obtained. [18] In the context of family law, Family and Children's Services of Queens County v. L.B., 2008 NSFC 29, defined "substantial risk" as "a real chance of danger that is apparent on the evidence" (at para. 213). [19] The Crown also points out that s. 753.2(3) does not make clear what evidence would suffice for a reviewing court to conclude an offender is no longer a real risk to reoffend. The Crown submits other provisions in the Criminal Code assist in determining this issue and in interpreting s. 753.2(3). One is s. 732.2(3), which concerns a court's ability to change the conditions of a probation order in light of "a change in the circumstances since those conditions were prescribed." The Crown refers to R. v. Bennett, 2005 ABCA 119 at para. 10, for the proposition that an offender cannot apply to change a probation order under this provision simply because he or she has aged while on probation, one of J.W.R.'s primary points on the present application. The Crown also submits that an LTSO should be considered akin to a federally supervised probation order. [20] The Crown also refers to the "faint hope" provisions in s. 745.63 of the Criminal Code, under which an offender serving a sentence may apply for a reduction in the number of years of imprisonment without eligibility for parole if the person meets

certain criteria. On this point, the Crown refers to R. v. Swietlinski, [1994] 3 S.C.R. 481, where at 492-493 Lamer C.J. discussed s. 745: "The purpose of a reassessment procedure is necessarily to re‑examine a decision in light of new information or factors which could not have been known initially." The Crown also recognizes that certain differences exist between the two types of applications when it states: a successful s. 745.63 [application] does not end imprisonment nor supervision, it permits the offender to apply for parole earlier; the purpose of parole ineligibility is fundamentally different than the LTSO; unlike s. 753.2(3), s. 745.63 imposes no evidential onus on the applicant; and finally s. 745.63 is a discretionary reassessment procedure of parole ineligibility imposed at trial in light [of] the factors enumerated in s. 745.63(1), whereas s. 753.2(3) is focused on risk assessment. [21] The Crown submits that, given the totality of the principles surrounding the imposition of an LTSO, the phrase "substantial risk of reoffending" is more encompassing than a "likelihood of reoffending," as likelihood is essentially the same as "probability", whereas "risk" or "substantial risk" is akin to a possibility of something happening. The Crown submits that to ensure the safety of the public consistent with the risk Part XXIV provisions are meant to protect against,

"substantial risk of reoffending" means a chance or possibility of reoffending in the future. [22] As a result, because the Crown at trial has already proven beyond a reasonable doubt that there is a substantial risk to reoffend, the Crown says that to succeed on an application under s. 753.2(3) of the Criminal Code, J.W.R. must prove on a balance of probabilities that a material change in circumstances has occurred since the LTSO was imposed, such that this court is satisfied he no longer presents a substantial risk of reoffending. The Crown submits that a material change in circumstances suggests something that, if known at the time, would likely have resulted in different terms. The Crown contends that this approach is consistent with the need for finality of judicial decisions and the fact that this Court, in this application, is not a forum for a review of the evidence or facts found in the proceedings leading to the LTSO. J.W.R.'s Position [23] In his response as to the "test" that the court should apply when determining whether there continues to be a substantial risk to reoffend, J.W.R. focuses his attention on the phrase "no longer" in s. 753.2(3), and submits that Parliament's intent in including it was to acknowledge that the passage of time can eventually affect the finding that an offender poses a substantial risk. J.W.R. points to dictionary definitions of this

phrase, which all suggest that it connotes something that was true in the past but is no longer true. He submits that this Court must determine whether a sufficient period of time has elapsed, along with other factors, indicating that he no longer poses a "substantial risk." [24] J.W.R. also disagrees with the Crown that s. 732.2(3) of the Criminal Code is relevant to the interpretation of s. 753.2(3). He suggests two substantial differences exist. First, a person subject to a probation order is still serving a sentence, which mainly serves to punish the offender. Conversely, an LTSO is not part of the sentence and serves to ensure the offender does not reoffend and to protect the public during the period of reintegration: R. v. L.M., 2008 SCC 31 at paras. 44 and 46. Second, in s. 732.2(3) the need for a change in circumstances only applies to changing or removing any optional conditions of probation, not to decreasing the period for which the probation order is to remain in force. [25] J.W.R. further disagrees that s. 745.63(1) of the Criminal Code is relevant to the interpretation of s. 753.2(3). J.W.R. says that someone under an LTSO is not in the same situation as an applicant under s. 745.63(1). He submits that while s. 745.63(1) requires a jury to consider certain criteria, s. 753.2(3) in contrast sets out no mandatory criteria for the court to consider when a person

applies to reduce the length of or terminate an LTSO. [26] J.W.R. ultimately submits that s. 753.2(3) does not require an applicant to prove a change in circumstances. He contends that if this were the case, the provision would be meaningless since few, if any, offenders could meet that high threshold. He submits that if Parliament had intended a narrow interpretation of the section, then it would have included specific criteria restricting its scope as it did in ss. 732.2(3)(a) and (b) and 745.63(1). In his view, the absence of such criteria suggests a broad interpretation is appropriate. [27] J.W.R. says that the passage of time, his present age, his good work history, the fact he has completed a B.A. degree, and his overall behaviour in the community since being released, in their totality, are sufficient to conclude he no longer needs supervision, and that it is not necessary for him to establish a material change in the circumstances that were considered by Kirkpatrick J. when she ordered J.W.R. to be bound by the LTSO. [28] In my view, the Crown's submission on how to interpret s. 753.2(3) of the Criminal Code is the correct approach. While J.W.R. focused on the phrase "no longer" and its apparent meaning, I am satisfied that establishing that an "offender no longer presents a substantial risk of reoffending and thereby being a danger to the community" essentially amounts

to establishing a material change in circumstances since the order was made, such that, if known at the time, would have likely resulted in different terms. Even though the Supreme Court of Canada was dealing with family law in Willick v. Willick, [1994] 3 S.C.R. 670 and L.(D.N.) v. S.(C.N.), 2013 BCSC 858 when considering what a material change in circumstances means, I am satisfied the same definition is applicable on the present application. What evidence is sufficient to meet the test under s. 753.2(3)? J.W.R.'s Position [29] J.W.R. submits that he no longer presents a substantial risk to reoffend and therefore is not a danger to the community. He urges this Court to conclude that it is unnecessary for the Parole Board to supervise him at this point in time. He sets out four broad factors to support his submission that this Court should terminate the LTSO. [30] First, he submits that he has never been a danger to the community at large, given that the class of complainants is narrow: his four oldest children, his oldest granddaughter, and a friend of one daughter. He notes that he has three other children and 14 other grandchildren who were not complainants. He further submits that he later formed another "family-like relationship where children were resident" and that no allegations of wrongdoing arose. He also points to affidavits he submitted from friends and family,

wherein the affiants depose that in their view J.W.R. is not and never has been a danger to the community. [31] Second, J.W.R. submits that the historical nature of the offences is relevant. He submits there is no evidence that he has displayed criminal or anti‑social behaviour since 1984 or 1988, despite thorough police investigations in Canada, the United States and Scotland. He says the discrepancy here in the date exists because the court heard evidence at the sentencing hearing that J.W.R. sexually abused one of his daughters in the United States in 1988, but this evidence did not lead to a conviction. [32] Third, J.W.R. submits that his age is a significant factor in a risk assessment for future conduct, based on the expert evidence. He is currently 77 years old, and was 48 years old at the time of the last culpable conduct. On this point, J.W.R. relies on the psychiatric and psychological assessments which comment on how age is "a significant factor in reducing the recidivism rate of sex offenders." He also relies on studies and reports from the Correctional Service of Canada ("CSC") which suggest that, as the experts confirm, increasing age, especially after age 60, "decreases the risk of reoffending to negligible." Moreover, on this point, J.W.R. simply states: "My sex drive is non-existent. It is zero." Because of this, he says there is no "real possibility" of him

reoffending at this point in time. I pause here to note that J.W.R. made the same assertion at the dangerous offender hearing, prompting Kirkpatrick J. to state, "although I do not have reason to believe JWR's statement to Dr. Zoffmann that he no longer experiences a sex drive, I nevertheless accept that JWR's sex drive will diminish over time." [33] Fourth, J.W.R. submits that no psychiatrist, psychologist, CSC employee, or Parole Board employee has suggested he was or continues to be a "high risk" offender. Various psychiatrists and psychologists have prepared risk assessments concerning him, both for the sentencing hearings and post-sentence. The majority of these assessments conclude that J.W.R. poses a low to low‑moderate risk of reoffending sexually, at least up to 2016. Where exactly J.W.R. falls on the spectrum depends on whether he should be properly classified as "an incest-type offender" or as a pedophile, as Dr. Zoffmann, a defence expert, pointed out in 2004. If J.W.R. is the latter type of offender, Dr. Zoffmann raised her assessment for reoffending from low to "low to low‑moderate." [34] The institutional psychologist at Matsqui Institution, Dr. Mawson, concluded that for assessment purposes, J.W.R. was a "low risk-low needs offender," justifying a "low intensity sex offender treatment program," even though at that time, as now, J.W.R. maintained that he never

sexually assaulted any of the complainants. [35] On this issue, J.W.R. submits that the most significant expert opinion is that of a Dr. Salmon, a psychologist with the CSC. Dr. Salmon interviewed J.W.R. nine times over a 26 month period and eventually concluded that J.W.R.'s "current dynamic risk is low" as of June 2015, and as a result, he no longer had "to participate in counselling with a mental health professional." [36] Given these assessments of low to low-moderate risk to reoffend, combined with the trial judge's "acceptance" in January 2005 that he was a moderate risk to reoffend, J.W.R. submits it is clear there is no evidence of "substantial" risk and with that designation gone, he is no longer a danger to the community and thereby qualifies for a termination of the long-term supervision order. [37] J.W.R. also emphasizes that his long-term parole supervisor, Mr. Sangha, confirmed that, since 2013, apart from J.W.R. going to California without permission about two months after his LTSO commenced, J.W.R. has complied with all the LTSO conditions and has presented no further difficulties to Mr. Sangha. Indeed, Mr. Sangha acknowledged that as far as he is aware, J.W.R. is the only offender subject to an LTSO who is given permission to travel outside of Canada. [38] J.W.R. further points out that the experts have concluded there is no need for him to engage in any sex

offender treatment or counselling and that he has reached the "maximum of what can be offered" to him with a view to minimizing any future risk. As a result, J.W.R. is presently only reporting once a month to Mr. Sangha, those meetings often being brief and on occasion somewhat casual. He further submits that only an assessment that he was a "high" risk to reoffend would permit a conclusion that he remains a "substantial" risk to reoffend. [39] Finally, J.W.R. submits that the language used in s. 753.1(2) of the Criminal Code is the only reason there is any suggestion that he poses a substantial risk to reoffend or was considered a substantial risk in the first place. He characterizes such a conclusion as an "operation of law," that is, he was found to pose a substantial risk because he was convicted of sexual assault, one of the offences for which there is a statutory presumption of substantial risk under the long-term offender provisions in the Criminal Code. J.W.R. contrasts this statutorily-mandated conclusion with the expert evidence which concludes he is a low to moderate risk to reoffend. [40] Ultimately, J.W.R. says he has "gone as far as possible within the scope of the LTSO," the counselling and treatment programs are finished, he has returned from his trips to California, and simply says what more can he do to establish he is no longer a substantial risk to

reoffend. The Crown's Position [41] The Crown submits that J.W.R. has failed to prove a material change in circumstances such that I should not accede to his submission that he no longer poses a substantial risk of reoffending. [42] First, the Crown disagrees that the class of complainants is effectively limited to J.W.R.'s family. The Crown points to Kirkpatrick J.'s findings at sentencing that J.W.R.'s sexual offending was not confined to the family setting and that his behaviour showed that he is a danger to young people under his control. The Crown submits that the Court of Appeal did not disturb this finding. [43] The Crown acknowledges that the last offence for which J.W.R. was convicted was in 1984, more than 30 years ago, and over 10 years have passed since the sentence was imposed. However, the Crown emphasizes that the trial judge considered the fact that there had been no offending for several years, along with the evidence that a person's sex drive diminishes with time, when she imposed the 10 year LTSO. As a result, the Crown says all the factors that J.W.R. now relies on in support of his application to terminate the order were present when Kirkpatrick J. concluded an LTSO was necessary to protect the public. The one exception, of course, is the evidence of J.W.R.'s good behaviour since he was extradited from California in December 2012. On this point, the Crown

says simply complying with the terms of the LTSO is not a material change in circumstances. [44] Moreover, the Crown says that while J.W.R. has not offended for a considerable time, he has also been under some form of supervision when in the community. This raises the question: is J.W.R.'s good behaviour due to a significant change in risk or is it "consistent with the efficacy of the court orders doing what they are intended?" [45] Given the totality of the circumstances, the Crown submits that there is still a real chance or possibility of J.W.R. offending in the future, given the circumstances surrounding his sexual offending, despite his good conduct since being extradited back to Canada. [46] The Crown also recognizes that J.W.R.'s age is a relevant factor in determining whether the court should relieve J.W.R. from the conditions of the LTSO. However, the Crown says J.W.R.'s application should not succeed if it is based on the "mere passage of time," because the "inevitability" of time was considered by Kirkpatrick J. and therefore is again, not a material change in circumstances. [47] While the Crown agrees with the general proposition that the risk of recidivism decreases with age, the Crown nevertheless says that even at 77 years old, given the totality of the circumstances, a real risk still remains in this case. In support of its position, the Crown points out that

none of the expert assessments suggest J.W.R. should not be bound by conditions. The Crown submits that J.W.R.'s performance and compliance can properly be reflected in changing some conditions, or continuing to permit his trips to California to deal with a medical issue covered by his American health insurance, as well as dealing with issues surrounding his residence in South Lake Tahoe. [48] The Crown also appreciates the positive support J.W.R. receives from his supervisor, Mr. Sangha, who recommends to the Parole Board the granting of J.W.R.'s requests to travel to California, on average three times a year since 2015. Mr. Sangha testified he supports these trips as he is aware J.W.R. plans to live permanently in California once the LTSO expires in 2022. As things presently stand, J.W.R. is not to leave Canada without the Parole Board's permission. [49] The Crown also refers to the post-sentence risk assessments. While they state that generally speaking, J.W.R. was a "low-risk low-needs offender" and that his risk was manageable in the community, the Crown submits that "a compendious review of the post-sentence risk assessments do not show a marked decline from pre-sentence assessments." That is, in the Crown's submission, "the assessments do not clearly show that there is no longer a substantial risk of reoffending." In addition, the Crown points out that the expert

evidence established that even a low risk offender has a 4% to 25% risk to reoffend and a moderate risk is in the 20% to 30% range. That is, there is a real possibility or a real risk of reoffending, despite the passage of time since the sentence was imposed. [50] Finally, the Crown emphasizes the comments of Mr. Sangha in his 2017 "Assessment for Decision," where he states that, notwithstanding J.W.R.'s positive behaviour, "he does not accept responsibility for the offences. The nature of his offending and his failure to take an accountability for them are features that are directly linked to his risk to reoffend, and they provide a rational[e] to conclude that J.W.R. continues to require special and general conditions along with a diligent and closely supervised risk management strategy." [51] Given all of the above, the Crown submits no material change in circumstances has occurred since Kirkpatrick J. imposed the LTSO. That is, the trial judge was aware of and considered all the factors J.W.R. now relies on in support of his application when she imposed the LTSO. The Crown thus submits that the court should dismiss the application. [52] The Crown also disagrees with J.W.R.'s suggestion that the presumption of substantial risk by operation of s. 753.1(2) of the Criminal Code is determinative as to whether or not there is a substantial risk an offender will reoffend. The

Crown points out that this provision also requires that, in addition to being convicted for certain offences, the court must find a likelihood exists that the offender will cause "injury, pain or other evil to other persons in the future through similar offences": s. 753.1(2)(b)(ii). Analysis [53] All judges face a dilemma with respect to Part XXIV issues in general, and now when considering an application to terminate or reduce the period of time an offender is subject to an LTSO. As mentioned earlier, in Lyons, La Forest J. discussed the assessment of the likelihood of reoffending, and the need for a sentencing judge to balance competing risks and principles. At p. 369 he cited academic commentary which posed the question: "what is the moral choice between the alternative risks: the risk of harm to potential victims or the risk of unnecessarily detaining offenders judged to be dangerous?" [54] In conclusion, I agree with the Crown's submissions on this issue. At the time of sentencing in early 2005, Kirkpatrick J. concluded that J.W.R. was a low to moderate risk to reoffend, based on the expert evidence before her. Justice Kirkpatrick further concluded beyond a reasonable doubt that it was likely that in the future J.W.R. would fail to control his sexual impulses and cause pain, injury or other evil to other persons. Her reasons make clear that she took into account the same

factors which J.W.R. raised on this application, with the exception of course of his subsequent good behaviour, and concluded that a ten-year LTSO was appropriate. [55] Moreover, J.W.R. has not adduced any new expert evidence on this application which would point to a material change in circumstances. I sympathize with his contention that he cannot afford to retain an expert for this purpose and, as a result, is unable to "proffer additional evidence," apart from his compliance and good behaviour, but that does not change the fact that the onus lies on him to establish on a balance of probabilities that he no longer presents a substantial risk of reoffending. In addition, there is no suggestion from any person in authority, including most importantly, Mr. Sangha, his parole supervisor, that J.W.R. should not continue to be subject to supervisory conditions, as relaxed as they have now become, even though Mr. Sangha acknowledged that there is nothing more that can be done to reduce the risk of reoffending by way of counselling or additional treatment programs. While I commend J.W.R. for his subsequent good behaviour, I am not persuaded that such behaviour, even standing alongside his advancing years, can establish that he no longer presents a substantial risk of reoffending. [56] Finally, I am unable to accept J.W.R.'s submission that Kirkpatrick J. found him to pose a

substantial risk of reoffending solely because of the nature of the offences for which he was convicted, that is, by "operation of law." I agree with the Crown when it says J.W.R.'s submission on this point fails to recognize that, in addition to being convicted of a specific offence, in order to conclude an offender meets the statutory designation, the sentencing judge must also find a likelihood of causing future pain or injury or severe psychological damage by the commission of sexual offences.

CONCLUSION [57] For the above reasons, even though J.W.R. has fully complied with all the conditions contained in the LTSO to this point in time, as confirmed by Mr. Sangha, I am not persuaded J.W.R. has established that there has been a material change in circumstances such that the court can be satisfied he no longer presents a substantial risk of reoffending and thereby being a danger to the community. Accordingly, the application is dismissed. "B.D. MacKenzie, J." The Honourable Mr. Justice B.D. MacKenzie