R. v. R. (J.W.)

2005 BCSC 75 R. v. R.(J.W.)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. R.(J.W.), 2005 BCSC 75 Date: 20050120 Docket: 93060 Registry: Victoria Regina Against R.(J.W.) AN ORDER HAS BEEN MADE IN THIS CASE PROHIBITING PUBLICATION OF ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF THE COMPLAINANTS, PURSUANT TO S. 486(3) OF THE CRIMINAL CODE

BAN ON PUBLICATION C.C.C. 486(3) Before: The Honourable Madam Justice Kirkpatrick Reasons for Judgment Counsel for the Crown: P.W. Ewert, Q.C. T.P. Stokes Counsel for the Accused: L.D. Myers J. Whysall Date and Place of Hearing: October 13, 14, 19-21 and December 15 and 16, 2004 January 20, 2005 Vancouver, B.C. [1] On November 7, 2003, I found JWR guilty of 13 counts of various historical offences ranging from common assault to rape. The time frame of the offences spanned 23 years, from 1965 to 1988. [2] This was JWR's second trial on these charges. The first trial took place before a jury in September 1998. JWR was found guilty on 11 counts of a 27‑count indictment. Following his conviction in 1998, the Attorney General consented to an application being brought under s. 688 and 753 (now s. 754(1)) of the Criminal Code to determine whether JWR was a dangerous offender. On June 18, 1999, the trial judge, Mr. Justice Melvin, found JWR to be a dangerous offender in respect of Count 2 (Count 1 in the indictment before me) and sentenced him to an indeterminate term of imprisonment. As to the remaining counts, Mr. Justice Melvin sentenced JWR to 16 years imprisonment. [3] In October 2001, the Supreme Court of Canada overturned the 1998 convictions and ordered a new trial. That trial was heard before me from September 15 to October 3, 2003. [4] Since JWR's arrest on these charges on

February 18, 1997, he has either been in custody pending the trial of these charges or in prison (June 18, 1999 to October 12, 2001) serving his sentence, for a total of approximately five years and six months. [5] Following JWR's conviction on November 7, 2003 and before sentencing, the Crown filed an application on December 3, 2003 for an assessment under s. 752.1(1) of the Criminal Code on the basis that there were reasonable grounds to believe that JWR might be found to be a dangerous offender in respect of all of the counts upon which I had found him guilty. That application was opposed. In granting the application and ordering the assessment, I noted my concern with respect to the Crown's stated intention to proceed with the dangerous or long‑term offender designation in respect of counts other than Count 1 of the indictment. [6] The Crown subsequently filed a fresh application on October 1, 2004, citing Count 1 as the predicate offence for determination in relation to the dangerous offender designation.

OFFENCES [7] In my Reasons for Judgment delivered on November 7, 2003, 2003 BCSC 1694, I reviewed the circumstances of the offences and of the offender in some detail. I need not repeat them here. However, a brief synopsis with respect to each count may aid the appreciation of the gravity of JWR's conduct. Count 1: Sexual Assault - January 4, 1983 to December 31, 1988 [8] LB, now LAR, is the daughter of JWR's stepdaughter, DEG. In 1984, when LAR was about 7 or 8, JWR placed her hand on his erect penis and told her to move her hand up and down. In a second incident, JWR inserted his finger in her vagina, causing a burning, tearing sensation. In a third incident, JWR placed LAR on a hide-a-bed couch, motioned her to place her hand on his penis, and then pulled up her nightie and touched her on the outside of her panties. Count 2: Indecent Assault - July 1, 1976 to July 9, 1979 [9] JWR masturbated his son, JWR, Jr., several times in the summer of 1976 when his son was about 14 years of age. Count 3: Indecent Assault - January 1, 1966 to July 14, 1971 [10] DEG is JWR's stepdaughter, whom he adopted in 1965. In about 1966, when DEG was about 8 years of age, JWR fondled her on the outside of her vagina; when DEG was between 8 and 10 years old, JWR inserted his finger in her vagina more than a dozen times; he forced her to kiss his penis; he forced her to lie on a bed without her

pants on while JWR showed her genitalia to her brother and told him to insert his finger in her vagina; he fondled her under her pyjamas on a truck trip; and he attempted to rape her at a time when her mother was in hospital, telling her that it was "what good little girls do for their fathers." Count 4: Indecent Assault - July 15, 1971 to December 31, 1976 [11] JWR attempted sexual intercourse with DEG in 1971 when she refused to strip naked on a boating excursion to an isolated beach. Count 5: Rape - January 1, 1970 to July 14, 1971 [12] JWR raped DEG from the time she was 13 years of age on more than 20 occasions. Count 6: Rape - July 15, 1971 to December 31, 1976 [13] JWR raped DEG until she was 16 years of age. She could not estimate the number of times that JWR forced sexual intercourse on her. Count 7: Sexual Intercourse with a female under age 14 not his wife - January 1, 1970 to January 4, 1972 [14] This count concerning sexual intercourse with DEG, a female person under the age of 14 years who was not JWR's wife, is subsumed in Counts 4, 5, and 6. Count 8: Assault - June 1, 1965 to July 14, 1972 [15] JWR physically assaulted DEG with a leather strap, his hand, and an electrical cord. Count 9: Indecent Assault - June 1, 1974 to September 30, 1975 [16] JWR fondled the breast of KJH, a childhood friend of JWR's stepdaughter, DMR. Count 10: Indecent Assault - October 1,

1966 to July 14, 1971 [17] On her seventh birthday, JWR inserted his finger into the vagina of DMR. In another incident, JWR fondled her vaginal area and buttocks and later digitally penetrated her vagina while ostensibly helping her to change from her swimming clothes. Count 11: Indecent Assault - July 15, 1971 to December 31, 1976 [18] When DMR was about 11, JWR came into the bathroom in which she and a friend, CEM, were bathing. He began feeling around in the bathtub and touched DMR's bottom. DMR and her friend both screamed and JWR ran out of the bathroom. [19] In another incident when DMR was about 10 years of age, JWR inserted his finger in her vagina, saw blood, and informed her brothers that "there was a new woman in the house." [20] In a further incident, JWR told her to hold his erect penis and attempted to undo her pants. [21] Another time, after catching DMR smoking, he digitally penetrated her vagina and pulled her nipples. On one or two occasions JWR went into DMR's bedroom after she had been out for the evening and either inserted his fingers in her vagina or opened her legs and looked at her. Count 12: Assault - June 1, 1965 to July 14, 1972 [22] On the morning after JWR's indecent assault on DMR on her seventh birthday, DMR went to her parents' bedroom to tell her mother that she had noticed blood on her underpants. JWR told her to return to her room. He came into her bedroom and beat her with a bath brush. Count 14: Indecent Assault - July 15, 1971 to December 31, 1976 [23] JWR performed oral sex on his son, DCCR, on at least one occasion. JWR asked his son on several occasions if he would like to touch his father's genitals.

ALLEGATIONS OF OTHER SEXUAL MISCONDUCT [24] In addition to the evidence tendered at the trial, the Crown also relies on the evidence of LAR as to certain events that took place in California in 1988 and 1989. That evidence was also the subject of a voir dire during the trial in which the Crown sought unsuccessfully to have the evidence admitted as similar fact evidence. The Crown and the defence agreed, both as to the evidence on the voir dire and on the dangerous offence hearing, that the evidence would take the form of the transcript of LAR's testimony at the first trial in 1998. The following is a summary of her evidence concerning the California incidents. [25] When LAR was 11, in the summer of 1988, she and her siblings went to California to visit JWR. LAR alleges that, after experiencing a bad sunburn one day at the beach, she had taken a cold shower in JWR's trailer. After the shower, she put on a nightgown. JWR told her that he was going to put aloe vera cream on her for the burn. He told her to remove her nightgown and lie down on the bed in his room. He rubbed cream on all over her body, including her breasts and labia. He then said that he wanted to kiss her "down there." She said no, but he did so anyway, telling her that it was the "grown‑up, normal thing to do." He rolled her over on top of him and positioned her on his erect penis. He attempted intercourse, but

said that he was too big for her and could not fit. She was crying and upset and told him she wanted to go and sleep with her siblings. [26] On the same trip, LAR said that JWR took the children for a car ride up a mountain. When they got to the top, they got out of the car. JWR picked her up for a piggy‑back ride. He placed his hands behind her buttocks and then moved them inside the crotch area of her underwear, touching her vaginal area and digitally penetrating her vagina. [27] LAR testified that she and her siblings returned for a visit to JWR in the summer of 1989 when she was 12. JWR took the children for a visit to the San Diego Zoo and they stayed at a Marriott hotel. She testified that on one occasion while swimming in the hotel pool, JWR dove into the pool and grabbed her in the vaginal area and pulled her down underwater. She testified that she told him never to touch her again and then told him she was going to tell her mother what he was doing to her. He told her that her mother would not believe her and, if she did report it, he would hurt LAR. [28] The Crown also called LJ, formerly LB. She was born on July 16, 1965. On December 26, 1982, she was injured in a motor vehicle accident. Her father was a client of the law firm in which JWR was then a partner. They met with JWR in January 1983 to discuss her motor vehicle accident claim. She knew the R family, had

once dated JWR's son, DGR, and went to school with another son, DLR. [29] LJ met with JWR on one or two occasions with her father present. At some point, JWR suggested to her that her father seemed to be dominating the discussions and he wanted to see her separately. He made arrangements for a meeting at his office at 5:00 or 5:30 p.m. a week or so later. [30] When LJ arrived at the office at the appointed time, JWR was waiting in front of the office at his car. He told her that he needed to get a file from his boat. LJ was uneasy about leaving and told JWR that she did not think that it was a good idea. However, JWR assured her that it would not take long and that he would have her back to the office at the time she had arranged to have a friend pick her up. [31] LJ was, at the time, wearing a neck brace and an arm sling. JWR assisted her into his sailboat and poured her an alcoholic drink that she said she did not want. He then proceeded to ask her whether she had a boyfriend; was her boyfriend older than her; did she like older men; and whether she had ever thought about having sex with her father. Most significantly, JWR told her: "I could throw you in back and fuck you right now." [32] LJ was upset and frightened. She cajoled JWR, telling him that he did not want to do as he said because of her injuries. JWR told her that he had, in her words, "noticed your cute little ass

on the way out the door." LJ thought that remark was, in her words, "kind of inappropriate." [33] LJ eventually persuaded JWR to take her back to his office, and then to her home when her friend who had agreed to pick her up from her appointment was not at the office. JWR did not discuss her legal case during this incident. [34] LJ did not tell her parents or anyone else about the remarks made to her by JWR until 1996 or 1997, when she saw an article in a local newspaper concerning the charges against JWR. She made a statement to the R.C.M.P. on October 3, 1997.

EXPERT EVIDENCE [35] In his submissions at the close of the dangerous offender hearing, Crown counsel urged me to consider the Reasons for Judgment of Mr. Justice Melvin, in which he found JWR to be a dangerous offender. Crown counsel also filed the psychiatric and psychological reports and evidence tendered at the 1999 dangerous offender hearing. I have read the Reasons of Mr. Justice Melvin and the expert evidence filed before him. That evidence was also considered by the experts who testified at this hearing. However, I think it more valuable to give closer consideration to the testimony that I have heard and the reports that have been tendered on this dangerous offender proceeding. [36] I will review the evidence in the order in which it was given at the dangerous offender hearing. Dr. Lohrasbe [37] Dr. Shabehram Lohrasbe is a psychiatrist who was qualified to give expert opinion evidence in the areas of the dynamics of child sexual and physical abuse; the diagnosis, treatment and rehabilitation of sexual offenders; and the risk assessment of sex offenders. His evidence was tendered on behalf of the Crown. [38] Dr. Lohrasbe also provided an opinion on November 22, 1998, in the proceedings before Mr. Justice Melvin. JWR, on the advice of his counsel, did not permit Dr. Lohrasbe to interview him either in 1998 or 2004. [39] In his 1998 report, Dr. Lohrasbe accepted that JWR

had sexually assaulted both male and female children, all of whom, with one exception, were members of his family. Dr. Lohrasbe concluded that JWR is a paedophile because of the number of victims, of both sexes, and the length of time over which the assaults occurred. Dr. Lohrasbe stated: A striking feature of this case is the degree of intimidation, threat, force and control used by JWR. Also of concern is JWR['s] apparent ability to ignore fear and suffering in his victims. This is an ominous feature of his offending, given that the victims were children whom he did or should have protective and loving feelings for. He is capable of humiliating and brutalizing those that he in other ways cared for. Many possibilities arise when trying to understand such a pattern. He may have a limited ability to empathize with others. He may have very strong deviant sexual urges, that override concerns for the wellbeing of his victims. He may enjoy the infliction of humiliation or pain i.e., he may be sadistic. He may be so emotionally unstable that angry impulses are carried out without restraint. Whatever the precise combination of psychological factors driving his behaviour, it is hard to escape the impression, emerging from the transcripts, that his sexual violence was extremely destructive on the victims that he had assaulted. Looking to the future, it is important to note that

pedophilia is not known to spontaneously disappear. Like any sexual behaviour it tends to persist in an [individual's] life, particularly when well established. Patterns of sexual arousal and gratification are not easily extinguished. In a man with a well‑established pattern, the best that can be hoped for is self‑control. There is no cure. The potential to reoffend will always be there. The only recognized method of predictable control is through a comprehensive sex-offender treatment program. In British Columbia, the only appropriate program for JWR is that offered by the Regional Health Centre in Matsqui, which is a Federal Institution. [40] Dr. Lohrasbe expressed concern as to JWR's denial of the offences which, he stated, can be an absolute obstacle to treatment. Without knowing whether JWR would successfully engage in a treatment program, Dr. Lohrasbe considered him to be at a high risk to re‑offend. He did not attach much weight to the then 10‑year period since JWR's last known offence, stating that it is not uncommon for there to be long gaps in a sexual offender's pattern of offences. Dr. Lohrasbe noted that JWR was aware of the risk that he might be exposed after the initial offences, but nevertheless re‑offended years later, which suggested a strong deviancy to Dr. Lohrasbe. [41] In his 2004 report, Dr. Lohrasbe confirmed that the views he had expressed in 1998 had

not changed. He re‑emphasized the following finding that he originally made in 1998: To summarize, my review of the available information suggests that JWR is a pedophile. Without treatment, he will remain a high risk to reoffend and at this stage we do not know whether he will enter, never mind complete, the process of treatment. Although this prognostication does not equate with the legal criteria under section 753, I believe that a comprehensive psychiatric assessment, especially one that includes several interviews with JWR, could lead to findings and opinions that are strongly supportive that JWR is a Dangerous Offender. I emphasize again that this is not a formal psychiatric report, that I have never interviewed JWR and that in order to provide a comprehensive psychiatric assessment that I would need to do so. There are two additional issues and [sic] that arise since I wrote the report in 1998. Firstly, there is the 'passage of time' factor, with no known additional sexual offenses. Secondly, it would appear that JWR has not engaged in any form of treatment aimed at his sexual offending. While both issues add to the factors to be considered in any risk assessment, they do not by themselves alter my opinion. [42] Dr. Lohrasbe testified that JWR's risk to re‑offend, relative to the average citizen, is high. Dr. Lohrasbe's opinion of JWR's high risk to re‑offend is based on

his clinical experience with such offenders. Dr. Lohrasbe does not use actuarial tools of risk assessment, chiefly because he is not comfortable using instruments that draw data from a pool of individuals about whom he has no deep knowledge. He did not argue that the clinical approach he favours is more accurate or better than the actuarial approach taken by the other experts who have interviewed JWR. [43] Under cross-examination, he elaborated: Q.: A lot of what you say in terms of your assessment of JWR is, "I don't know if he's dangerous or likely to reoffend or not because I don't know the man. I don't know what propelled him, I don't know why this hiatus exists, I don't know what, if any, effect age has had upon him." A.: I think I generally agree, but I do need to qualify that. When there is a large vacuum of information about any offender, one approach -- and when I say vacuum, I mean about the sexual offending. One approach is to say, "Well, since we don't know a lot about, or we don't know anything about his sexual offending, we'll simply apply group measures, statistical measures and take some comfort in that." And that's an honourable approach, it's one I don't agree with. Where there is a vacuum in knowledge -- Q.: Sorry, I -- okay, I'll let you finish. A.: I take the approach that then since we know not what created the offending in the first place, we have to

assume that under the right conditions those factors can pop up again and therefore he's at high risk. [44] JWR's sexual deviancy is, according to Dr. Lohrasbe, the highest risk indicator because: (a) his victims were both male and female, aged 7 to 16, indicating that he is easily aroused, which creates a wider potential pool of victims. Homosexual pedophiles perpetuate abuse much longer than heterosexual pedophiles. The picture is less clear with bisexual offenders; (b) he employed a broad repertoire of approaches to his victims including seduction, threats, and force; (c) he inflicted violence towards his own children; and (d) the offences occurred over a long period of time and into the next generation of his family, which suggests that his sexual deviancy is well‑established. [45] Dr. Lohrasbe acknowledged that certain factors lowered JWR's risk to re‑offend, including: (a) JWR's age (64). Dr. Lohrasbe testified that the risk of all forms of violence decreases with age, but that in sexual offenders the decline is less steep; and (b) the length of time since the last known offence. As more time passes without re‑offending, it is less likely that an offender will re‑offend. Dr. Lohrasbe could not shed light on JWR's risk in this regard without first understanding the factors that led JWR to commit the offences. He testified: Now, with him, what do we know? We know nothing

about what arouses him, other than children arouse him, in terms of the risk management. How are we going to separate him from children? How? How are you going to make sure he has no contact with children, other than some location where he can be extremely tightly monitored 24 hours a day. That doesn't exist in the community. So I'd say that we're in a no‑go situation in terms of risk management. [46] Dr. Lohrasbe testified that JWR's denial is, from a clinical perspective, problematic because it is not known if he will engage in treatment. He stated that if denial is perpetuated, it can be an absolute obstacle to treatment. [47] However, Dr. Lohrasbe also acknowledged that denial is, in the current view of the profession, irrelevant in terms of risk assessment. Nevertheless, he considers that denial probably remains relevant in that it may affect the monitoring and supervision of an offender. [48] In addition, the fact that JWR obtained his teacher certification affects JWR's risk management. People such as JWR, who have a sexual interest in children, will gravitate to areas in which there are children and where they can exert power over them. In Dr. Lohrasbe's view, JWR must be kept away from children. [49] Dr. Lohrasbe and, indeed, all of the experts, were struck by the impulsive and reckless behaviour that JWR exhibited in the incident involving LJ. Dr. Lohrasbe thought it

unusual and it confirmed to him the strength of JWR's deviancy. He was particularly struck by what he described as JWR's predatory and malevolent comment: "I could fuck you right now." [50] Dr. Lohrasbe testified that none of the information he has seen with respect to JWR, including the assessments performed by the other experts, allows him to determine how to manage JWR. No one has discovered the factors that led to his offending (because of his resolute denial). All that is known is that children arouse him. Self‑control issues are, according to Dr. Lohrasbe, the primary focus of therapy. However, given JWR's blanket denial, Dr. Lohrasbe says that, in his words, "We are in a state of absolute ignorance as to his primary factors." [51] Dr. Lohrasbe agreed under cross-examination that discovery and public vilification can be powerful deterrents to sexual offenders, depending on the strength of the deviancy. He also agreed that considerable time (1988‑2004) has elapsed since JWR's last known offence. He speculated that it might be due to lower sex drive, control, lack of opportunity, remorse, regret, new relationships, change, or a host of relevant things. [52] Dr. Lohrasbe also acknowledged that JWR had the opportunity to re‑offend when his children resided with him after the last known offences and when he taught school in California. [53] Dr. Lohrasbe confirmed his opinion

that JWR's denial of the offences does not mean he is not treatable. Indeed, he confirmed that JWR needs to be in therapy, especially if he is out of custody. He conceded, when told that JWR had stated his willingness to be treated, that although it may be an empty agreement, it is nonetheless better than denying the need to be treated. [54] One of the defence experts, Dr. Zoffmann, later clarified that JWR stated his willingness to engage in treatment, but that he would not admit to the offences. Dr. Zoffmann [55] Dr. Elisabeth Zoffmann is a psychiatrist who was qualified to give expert opinion evidence in the areas of psychiatry and, in particular, the diagnosis, treatment and rehabilitation of sexual offenders. Her evidence was tendered by JWR. [56] Dr. Zoffmann interviewed JWR for a total of six hours on September 27, 2004. She reviewed a substantial body of information, including the expert opinions of Dr. Lohrasbe and Dr. Miller (the court-appointed expert) and Dr. Ley and Dr. Perry (who gave evidence at JWR's first dangerous offender hearing). [57] Dr. Zoffmann reviewed the victim impact statements which, in her words: All speak of long-standing disruption in social and intimate relations. They also describe long‑standing fear, guilt and shame. [58] Dr. Zoffmann also interviewed collateral acquaintances and family members of JWR, which she found to partially corroborate

certain aspects of the history provided to her by JWR. [59] In that part of her expert opinion entitled "Risk Analysis," Dr. Zoffmann reviewed the instruments based on statistical information that she considered in reference to JWR. She stated, in part: The challenge with this particular risk assessment is the disparity between the intra‑familial and extra‑familial behaviour patterns demonstrated by JWR. Another confounding factor is the absence of any identified offending behaviour in the 10 years prior to his arrest. This absence of offending behaviour appears to correspond with an absence of a settled domicile or family‑like setting that includes children. ... One of the struggles in completing risk assessment instruments on JWR is that the manual instructions for the SVR-20 and the PCL‑R dictate that the behaviour must be pervasive, long-standing and observed through all the areas of functioning before a positive score is made. There are some factors in this case which may invalidate scoring. For example on the Violence Risk Assessment Guide, there is an item for 'age at the index offence'. This particular index offence is remote or historical and the offending behaviour occurred over a period of 22 years. The questions then becomes whether one scores according to the age at last incident or the age at first incident or average it somewhere in between. I suspect that this

conundrum makes use of the VPS in this case non‑standard and perhaps invalid. ... STATIC 99: The score on this evaluation is 3. This is similar to the score obtained by Dr. Miller. This score places JWR's risk for reoffence in the low to low-moderate range before one goes on to consider specific dynamic factors. The dynamic factors that predict a lowering of risk are positive social relations and the presence of social supports. The ability to obtain and maintain employment, the absence of significant alcohol and drug related problems and the absence of acute anxiety, dysphoria or depression will also moderate that risk downwards. The factors which moderate risk upwards are the denial of offending behaviours and the consequence of an inability to examine the self for future patterns of risk. ... SVR-20: In this construct that is a frame of reference for considering items that were thought to be contributors to sexual offending when the book was published in 1997 are not given scores per se. The presence of a factor contributes to an impression of higher risk. The partial presence of the factors may also contribute to risk and the absence of the factors lead to an impression of lower risk. Thus, in JWR's case, we have a positive history of sexual deviation. He has had sexual arousal to children of various ages in his care. These children have been both male and female. The

sexual acts vary from inappropriate touching through to rape. There is a history of high density of sex offences over the period of time that he has been convicted for. Likewise, there is a history of multiple offence types described by his victims. Finally, there is extreme minimization of his offending behaviour. (JWR refutes the allegations against him.) ... Likewise, there is a history of relationship problems with his ex-wife. She gives a history of physical and emotional abuse with controlling and manipulative behaviour. JWR has a history of multiple jobs and activities. This might be viewed as 'employment problems' although the history supports the notion that he has always been employed and has not relied upon other sources of income to support him. With respect to the offending pattern, the SVR‑20 definition of serious harm indicates that there is only partial evidence of serious harm according to this defined criterion. That is not to minimize or deny that the physical aggression in sexual assaults were not painful or did not cause significant psychological distress and harm. In Item 18 according to the definition in the manual, there is partial evidence for attitudes condoning sexual assault. These are derived from the statements of his children describing him telling them that the sexual behaviour carried out with them was normal. With respect to Item 19 - there is

partial evidence that he lacks realistic plans. He has plans for the future to return to his condominium and take up legal work again. He states that he has a number of debts to pay to friends and family. It is not clear whether this is a realistic plan. JWR also has a history of being able to find employment in a number of different areas such as driving bus and on the ski patrol. He is experienced in these areas and so this is a possible realistic plan that would need verification. Finally, there is partial evidence that he has a negative attitude towards treatment. This is in spite of his expressed agreement or cooperation. He cannot fully embrace or accept treatment while he denies the offences. This is not a statement about his apparent acceptance of and good behaviour within the prison setting. On the lower risk end, we find that he is not a victim of abuse. He is not defined as a psychopath (the coding regulations note that a score of 20 or lower is not considered a risk factor). He does not have a major mental illness and he does not express suicidal or homicidal ideation. There is no history of past non-sexual offending and there is no history of past non-violent offences. There is no history of supervision failure as defined by the SVR‑20. There is no history of weapons or threats in the commission of the sexual offences. (Note here that the manual defines the threats

as threats of death). Finally, there is no evidence that there was an escalation of his offending behaviour while he was at opportunity to do so. In summary, while there are four factors that are definitely present, seven factors that are partially present, and nine factors that are absent. These factors add together to predict low-moderate risk of offending. Hare Psychopathy Checklist Rating (PCL-R): ... I would state at this point, that there is a fairly sharp difference between JWR's behaviour within his family and with those who are acquainted with him at a different level such as long-term friends, siblings, mother, aunts and uncles. This difference in behaviour is not inconsistent with what we know about individuals who commit abuse and violence within the family setting. It is common to hear descriptions of good community functioning while the person behaves very badly with their intimate family members. ... Whether his score is at or around 14 or 20, he is not classified as being psychopathic. Further, for purposes of risk evaluation, scores of 20 and under are considered low as opposed to moderate - 20‑29 and high - 30‑40. [60] In her summary of risk, Dr. Zoffmann stated: I am of the opinion that JWR is an incest-type sex offender. The extended pattern of incest offending has been perpetrated against his male and female children, biological grandchild and his

step-children as well as two instances of sexual touching of children under his care and control in his home. I am of the opinion that as part of this category of sex offender and based on the actuarial instruments and the SVR‑20, he represents a low risk for reoffending. Then, when one considers his advancing age and the period of time that he has been free of further convictions prior to his arrest as well as the lack of history of general criminal behaviour, he remains a low risk for reoffence. The presence of protective factors such as community supports, lack of substance abuse and an ability to earn a living further reduce the risk of reoffense. These qualities also make him a better prospect for eventual community supervision. That is not to state that the risk for reoffending is absolutely zero. As Dr. Lohrasbe has pointed out, he has seen men as old as 80 committing sexual offenses. However in this case we are left with examining statistics to see where the best fit occurs for this specific case. [61] Dr. Zoffmann concluded her report by stating that JWR's "vehement and persistent denial of sexual offending" rendered intensive sex offender treatment "pointless." She agreed with Dr. Nicholaichuk's opinion that low intensity sex offender treatment would be appropriate. [62] Dr. Zoffmann shared the concern expressed by Dr. Lohrasbe that "we don't know what led to" JWR's

sexual offending behaviour. In her examination in chief, Dr. Zoffmann testified: Q.: So were you able to refine those statistical limits, or did it assist you in refining those statistical limits by interviewing JWR and members of the community, including friends and family? A.: If we look at the things which we know to have positive prognostic factors, things like an absence of general criminal behaviour, a capacity to form relationships, maintain friendships, a capacity to engage in work and be employed, an absence of emotional disregulation in most contexts, those are positive prognostic factors. Q.: In regards to JWR? A.: In regards to JWR. Negative prognostic factors or things which are left as a question mark are things such as the inaccessibility around his sexual offending behaviour and the thinking that led to it. Likewise, for example, the numerous studies by Hanson revealed that they have found that the quality of sexual preoccupation is a strong -- not huge, but strong predictor of sexual offence recidivism. We don't know. That's an open question. We don't know what goes on in JWR's mind with respect to the past behaviour. That negative aspect was balanced with JWR's positive features of absence of other criminal behaviour, his capacity to work and be employed, and his extra‑familial and social support. [63] Dr. Zoffmann testified that JWR falls into a certain risk

category of "low-moderate" based on aggregate statistics of offenders aged 18 to 80 years old. She said that an offender's age at release from custody has a significant impact in that, after age 50, recidivism drops to half over the long term and, after age 60, the risk is almost zero. [64] Dr. Zoffmann stated that JWR's low score for psychopathy, coupled with his age, lowers his risk to re‑offend as does the absence of high needs (such as drug or alcohol dependency, inability to work, etc.). [65] Dr. Zoffmann stated that a prolonged supervision order would allow JWR's risk to be managed. [66] Dr. Zoffmann testified as to the likelihood that JWR will re‑offend as follows: When one looks at the specific instance of an offender, such as JWR in this case, we're looking at low to low/moderate. I am looking at his risk of reoffence compared to others of his class and his age and with his particular needs. The numbers that we have from recidivism studies place that risk at somewhere between four percent to as high as 25 percent, or four out of a hundred will recidivate, or 25 out of a hundred will recidivate. Those are the outside barriers of the recidivism statistics. The problems with applying it, I can say JWR belongs in that class, but that's where it stops. Without more time and observation and opportunity, I cannot be any more precise about how likely he is to be that one in 25

or one in five person who reoffends. [67] Under cross-examination, Dr. Zoffmann confirmed that her analysis of JWR's risk was based on risk assessment instruments that are developed in reference to re‑conviction rates. She agreed that recidivism rates underreport the actual occurrence rates of sexual re‑offending. [68] Dr. Zoffmann testified that JWR possesses several narcissistic traits and he has problems with his core sense of identity. As a result, he had intrusive and controlling intimate relationships. She described JWR's denial of the offences as "profound and unrealistic," suggesting a propensity for "hysterical denial." [69] Dr. Zoffmann confirmed that JWR's sexual deviancy cannot be cured, "it can only be managed." To that end, she stated that he required intensive assessment of his physiological sexual function and counselling as to his aberrant arousal. Among the management strategies she recommended was that JWR be restricted from forming family-style relationships that include children under 18 years of age. [70] Dr. Zoffmann said that the behaviour described by LAR is not inconsistent with JWR's personality. She described JWR as exhibiting incredibly poor judgment and impulsivity consistent with his poor core identity. [71] Lastly, Dr. Zoffmann stated that the significant passage of time since JWR's last offence must be approached with a great deal of caution

because it may invalidate the scoring on the Hare Psychopathy Checklist Rating, one of the risk assessment tools that she used to assess JWR. Dr. Schweighoffer [72] Dr. Anton Schweighoffer, the senior psychologist in the sexual offender treatment program for the Pacific region of the Correctional Service of Canada, testified as to the treatment programs available to offenders in custody and in the community. [73] Dr. Schweighoffer explained that there are three levels of treatment programs available for sexual offenders in British Columbia: high, moderate, and low intensity. Those programs are available, respectively, at Pacific Institute, Mountain Institution, and William Head. As well, there are maintenance programs available at a number of institutions to strengthen and maintain skills, and relapse prevention programs available to all levels of offenders at risk of recidivism. [74] Dr. Schweighoffer stated that an offender is not excluded from participating in treatment if he is in denial. [75] Dr. Schweighoffer described the programs available to offenders after release from the federal system. He testified that if a sexual offender has not completed treatment in the institution, then he is not eligible to participate in programs in the community. By definition, it is expected that the sexual offender will have completed either a high, moderate or low intensity program.

However, he explained that in practice, if an offender has not completed such a program, he may nevertheless be placed in a community program after a facilitator has met with the offender to help him understand his self‑management and risk factors. [76] Dr. Schweighoffer testified that he is unaware of any sexual offender treatment programs available in the private sector. [77] Under cross-examination, Dr. Schweighoffer confirmed that an offender who is released on statutory release is always released subject to conditions that may include directions for treatment. If the offender fails to abide by the release conditions, he is subject to suspension of parole or, where there is significant concern, to revocation of parole. Dr. Miller [78] Dr. Robert Miller was appointed to conduct an assessment of JWR at the earlier dangerous offender hearing before Mr. Justice Melvin in 1999. He prepared a report dated January 18, 1999. Dr. Miller requested an interview with JWR. JWR declined to participate. [79] On May 12, 2004, I ordered that JWR be remanded for assessment pursuant to s. 752.1 of the Criminal Code. Dr. Miller conducted the assessment of JWR. He provided a report to the court dated July 10, 2004. JWR, on the advice of his counsel, declined to be interviewed by Dr. Miller. JWR later agreed to be interviewed and, pursuant to a further court order, another assessment was

conducted on October 29 and November 1, 2004. [80] Dr. Miller was qualified to give expert opinion evidence in the area of forensic psychiatry and the dynamics of child physical and sexual abuse; the diagnosis, treatment and rehabilitation of sexual offenders; as well as his assessment of JWR's mental condition and risk. [81] Dr. Miller testified that there was no substantial change in his assessment of JWR's risk of re‑offending as between his report dated July 10, 2004 and his report dated November 12, 2004. [82] In his report dated July 10, 2004, Dr. Miller employed actuarial methods of risk prediction. He scored JWR to be in the moderate rage under the Psychopathy Checklist - PCL‑R - scoring high as to strong narcissistic features and low in respect of antisocial features. He assessed JWR under the manual for assessment of sexual risk violence - SVR‑20 - and found him to be of moderate risk of sexual re‑offence if victims are available to him. As to the Static‑99 score, Dr. Miller reported as follows: My scoring of the Static‑99, according to the Static‑99 coding rules, is 3, which places JWR into the second of four risk categories and which is label[l]ed medium-low. The sexual recidivism rate of 206 offenders followed over a period of 15 years, who had characteristics that now would be scored 3 using the Static‑99 coding rules, was 12% at five years, and 19% at 15

years. In my opinion, this data should be treated with caution. I would suggest that it may be unusual for an offender to be convicted of as many offenses as JWR, dating back over many years, at a first trial. JWR's case, therefore, may not be comparable to many of the 206 offenders on which the actuarial prediction is based. [83] He concluded: Therefore although I have provided the Court with the information available from actuarial assessment, I would continue to be of the opinion that JWR should be seen as at moderate risk of further sexual offending should he have exposure to victims. [84] Dr. Miller concluded his July 10, 2004 report with these important observations: Management Without treatment management, this risk would likely best be achieved by excluding JWR's access to children. I am unable to state whether or not JWR would disclose access to children if supervised in the community. If JWR continues to deny responsibility for the offenses, it would seem reasonable that he may also not disclose gaining access to potential victims to a community supervisor. Under these circumstances community supervision may not be effective in decreasing JWR's risk of reoffending. If JWR accepted responsibility for his offending behaviour, was accepted into an intensive sex offender treatment program, and was judged in the program as making progress and becoming more disclosive, then

I would have more confidence that community supervision could be safely undertaken. Potential Victim Impact In my 1999 report I considered the Victim impact statements of the victims of JWR[']s offenses. I stated, "Several of the victims describe in their statements typical reactions to chronic, traumatic experiences. Trauma at a young age that goes on for a prolonged period of time effects [sic] a person's ability to form trusting relationships. It causes emotional numbing and avoidance in addition to subjective distress at reminders of the trauma. Finally it causes the physiological symptoms of anxiety. DMR, for example, describes being 'very withdrawn' and unable to have a satisfactory sexual relationship with her husband. She has 'a very bad nerve problem and at times my hands and body will be very upset and shake as when I was younger'. DEG describes that 'now it seems like I am constantly thinking of things that happened in the past.' Psychological symptoms that go on for more than two or three months after a traumatic episode tend to become chronic. It is likely that these victims who continue to suffer psychological symptoms many years after their episodes of abuse will continue from time to time to have relapses of their symptomatology." I remain of the opinion that any future victims would be likely to suffer similar symptoms. [85] As I have noted, Dr. Miller's

assessment of risk did not change after his interviews with JWR. However, he stated that, under Axis 1 of the DSM IV criteria, "JWR's history of sexual behaviour during his lifetime is compatible with a diagnosis of paedophilia‑nonexclusive type." He was unable to make a personality disorder diagnosis. He offered suggestions for further investigation and treatment for JWR. As to his prognosis, Dr. Miller stated in his November 12, 2004 report: JWR's victims have all been in circumstances where he was acting in a supervisory capacity. There is one other allegation of sexually inappropriate behaviour in situations where JWR is providing professional advice and assistance. Although JWR may have decreased opportunity to sexually abuse others under his care I am unable to state that he will not have opportunity. Although JWR's sexual drive may decrease with increased age, I am unable to state when or if that will occur. Dr. Miller confirmed that JWR should be excluded from access to children and recommended that he not be permitted to teach or practice law because this would allow him access to students and clients who may be vulnerable to sexual abuse by him. [86] As with all of the experts who testified, Dr. Miller noted that "risk" is defined by re‑offence, arrest, and conviction. He testified that: A.: .... I think that what you're getting at is that the -- it's generally

accepted that there may be offences for which a person is convicted, for example, but the conviction is not for a sexual offence. It may be for a nonsexual offence, even though there was actually a sexual component to the offence, and then there are other offences or other incidents where a person may have committed some but -- something but not have been apprehended or charged. Q.: Yes. I think it's accepted generally, is it not, by experts that a lot of sexual offences do not get reported. A.: Yes, that's true. [87] Unlike Dr. Lohrasbe, who compared JWR's risk of re‑offending to the general population, Dr. Miller adopted what appears to be the more accepted approach, namely comparing the offender to those who have been convicted of sexual offences. He explained: Q.: Yes. Now, you have assessed his risk as to a moderate risk to reoffend? A.: Yes. Q.: Okay. And can you define that? I mean, moderate in the sense of that particular group of offenders that we're talking about, or moderate in relation to society? A.: Yes. When I'm using the word, "moderate," "low," "moderate," or "high" -- Q.: Right. A.: -- what I'm referring to is compared to the base rate of offending so that, for persons who have been convicted for sexual offending, we know that, on average, there's a rate that's, depending on the study that you look at, somewhere between 20 and 30 percent chance of reoffending

over a period of five years. If I'm using the word, "high," then I'm saying that the risk is higher than that. If I'm using the word, "low," then I'm saying that it's lower than that. If I'm saying that it's, "moderate," it's in that ballpark. Q.: Okay. Excuse me a minute. THE COURT: Just so I'm clear, you said that the -- on average, the risk of a sexual offender reoffending within five years is 20 to 30 percent? THE WITNESS: Yes. It depends a bit upon the type of sexual offending, whether it's a rape or whether it's pedophilia, whether it's incest. It -- I think that it also does depend upon, in the individual case, on many of those other markers that we've looked at as to whether the person has a previous history of sexual offending, for example, and I think that one of the things that I don't think the studies get at very well is, when someone is convicted of sexual offending, are they convicted of just a single sexual offence or are they convicted, as in this case, on a first occasion, of multiple sexual offending. And that's -- that's part of the problem with the -- looking at the numbers of the percentage of people reoffending over five or ten years. [88] Dr. Miller stated with some emphasis that, "on a societal level, we should do everything we can to protect the public, and to make sure that JWR does not have the opportunity to offend against children." [89] Dr. Miller

agreed with the defence proposition that JWR's denial of the offences is not a bar to treatment. However, he qualified his agreement as follows: A. Yeah, I do agree that it makes it most more difficult. In this particular case, in reviewing the literature or reviewing the Correctional files, it's kind of unclear why JWR didn't have treatment so far. And part of it's there is reference to him saying, you know, denying that he was -- or saying he doesn't want treatment, but in another place it says that he needs to wait until he is able to take responsibility before he's offered treatment. So it's not clear to me exactly what happened, so I think that theoretically you're right that, you know, it's not an absolute bar to treatment, but I do think as these kind of people go through the kind of bureaucratic system in CSC, you know, it -- potentially it is a factor which may mean it's less likely that he gets treatment. I also think that, you know, I also think that it's important to point out that, I mean, I think that somebody who has as many offences as JWR, who, when he talks to me about going into treatment says, well, what he would deal with in treatment is the effect that the legal process has had upon his family, basically he's still externalizing it. I do think that it's bad prognostically that he continues to deny it -- Q.: Well -- A.: And I think I would also say that,

you know, when one looks at the effectiveness of treatment, treatment is effective, but when one says it's effective one's not saying that people don't reoffend if they have treatment. What it means is there's a small percentage of people who would have reoffended but don't, but it's always worthwhile doing. Dr. Nicholaichuk [90] Dr. Terry Nicholaichuk is a psychologist currently employed by the Correctional Service of Canada. He was tendered as an expert by JWR. He was qualified as an expert in forensic psychology and, more particularly, in the diagnosis and treatment of sexual offenders and the assessment of risk. [91] Dr. Nicholaichuk interviewed JWR on July 17 and 18, 2004 for a total of 5.75 hours. [92] In his report dated July 27, 2004, Dr. Nicholaichuk stated that JWR's offence pattern indicates that he is an incest type sexual offender: Men such as this typically do not have a primary or ongoing sexual attraction to children but take sexual advantage of children within their families or their immediate social sphere. Marital discord coupled with the offender's inability to manage it are common concomitants to their offences. Within their families, it is not unusual for them to be exploitative, aggressive and abusive (many of the descriptors applied to JWR). However, in spite of the damage they do to members of their immediate families, they are rarely dangerous to the

rest of the community, particularly after they have been detected and prosecuted. In addition, subsequent to detection, their rate of recidivism is the lowest of any sexual offender group. [93] Certain factors indicated to Dr. Nicholaichuk that JWR is at low risk to re‑offend, including: (a) he belongs to an offender group that has a very low recidivism rate subsequent to detection; (b) the time he spent in the community from 1988 until his arrest without reported offences; (c) he is not sexually deviant (in the sense that he is not exclusively sexually deviant); (d) he is not young; (e) he has no criminal history aside from his current convictions; (f) JWR does not earn his living by criminal activity; and (g) he seems to have healthy, pro‑social support. [94] In his summary, Dr. Nicholaichuk stated: JWR was assessed as being at low risk to commit additional sexual offences. This assessment was based upon his offence pattern, [h]is age and his lack of criminality and sexual deviance. He has already demonstrated that he is able to be compliant with direction he is given and has completed two periods of conditional release. Although there are indications that he has been less than truthful in the investigation and trial process, these are not factors which affect his risk to commit new sexual offences. Offenders such as this, even though they many deny their offences, tend to be

good candidates for supervision in the community as they are behaviourally stable and compliant with the terms of supervision. [95] Dr. Nicholaichuk testified that current literature in the area of treatment of sexual offenders indicates that those offenders who cooperate with the treatment program and still deny the offences, nevertheless do well. The goal of treatment is to regulate and control the offenders' behaviour. [96] Under cross-examination, Dr. Nicholaichuk was challenged in respect of his conclusion that JWR did not meet the criteria for diagnosis of Narcissistic Personality Disorder under the DSM IV. The cross-examination confirmed that JWR's behaviour is consistent with his belief that he is special or unique and has a sense of entitlement, and that he was exploitative and aggressive. [97] Crown counsel also challenged Dr. Nicholaichuk's finding that JWR is an "incest type" sexual offender. He defined that type of offender as one who molests his or her own children or stepchildren (the latter, he said, have a five times greater risk of being molested); who is in a "not great marriage"; and whose primary sexual interest is adult heterosexual. [98] Dr. Nicholaichuk ultimately conceded that, under the DSM IV, JWR is unquestionably a pedophile. He conceded that, in light of JWR's behaviour in relation to KJH, LJ and CEM (the girl with whom JWR's daughter was bathing

as set out in Count 11), he may not be an incest type offender. [99] Dr. Nicholaichuk further conceded that, although the statistical risk of recidivism declines dramatically after offenders reach age 50, he of course cannot say whether that is true in JWR's case. He confirmed that recidivism rates for homosexual offenders decline later in life. [100] Dr. Nicholaichuk agreed with the proposition that the best predictor of future conduct is past conduct. He said that history contributes about half the variance in outcome. He also acknowledged that there have been gaps in JWR's life in which he has not committed offences (1977 to 1983; 1983 to 1988; 1988 to the present; and no known offences in the first 20 years of his life). He conceded that the gaps have little significance because JWR has demonstrated that he has committed offences after gaps in his life. [101] He also confirmed that, if JWR re‑offends, there is no question that he is likely to cause injury, pain, or other evil to his victim. [102] Lastly, Dr. Nicholaichuk testified that when he met with JWR, the only explanation he offered as to why his family reported the offences was that it had been orchestrated by his ex‑wife.

VICTIM IMPACT STATEMENTS [103] JWR's adopted stepdaughter, DEG, provided a statement that described in vivid detail the anger, helplessness, vulnerability, shame and embarrassment she experienced as a result of JWR's abuse of her. She stated that she exposed herself to painful relationships because she did not understand the meaning of a relationship until she was almost 30 years of age. She became pregnant at 16, believing that the pregnancy would cause JWR to leave her alone. She had an abortion. She lacked self-confidence which affected her achievement at school. She said that her childhood, and that of her daughter, was stolen from her by the offender. She feels profound guilt and devastation due to the offences perpetrated by JWR on her daughter and the consequent belief that she failed to protect her daughter. [104] The offender's second stepdaughter, DMR, stated that she has experienced feelings of anxiety and fear most of her life. She distrusts people, especially men. The impact of JWR's crimes have affected her ability to concentrate and to maintain relationships, including sexual relationships. She has suffered from depression. She has attained only a Grade 7 education. [105] JWR's step‑granddaughter, LAR, described the upset caused by the crime committed on her, including the loss of drive, sensitivity around adult men, and the strain on her relationship with her mother, DEG. [106] None of the victims who provided statements wish to ever have contact with JWR. DEG described him as "an evil presence." DMR expressed concern that he would seek retribution from her upon his release from custody.

CRIMINAL CODE PROVISIONS [107] The Crown's application is made under s. 753(1) of the Criminal Code, which reads as follows: The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she

has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. The Crown relies on s. 753(1)(a)(i) and (1)(b). [108] The defence concedes that the predicate offence is a "serious personal injury offence" as defined by s. 752, that JWR's conduct falls within the definition, and that, if JWR fails to restrain his sexual impulses, he will cause "injury, pain or other evil" to other persons. The defence concession is supported by the expert testimony of Dr. Lohrasbe and Dr. Miller, who both agreed that conduct of the kind JWR perpetrated on LAR and his other victims would cause physical and psychological harm to other victims. [109] The principal point of contention is whether the Crown has proved beyond a reasonable

doubt that it is likely that in the future the offender will fail to control his sexual impulses. The defence, as I have noted, concedes that if he fails to control his sexual impulses, he will cause injury, pain or other evil to other persons. The test as above described was confirmed to be the correct expression of the law in R. v. Bakker (1999), 133 C.C.C. (3d) 75, 1999 BCCA 84. [110] The defence argues that the weight of the expert evidence does not support a finding that JWR is likely to re‑offend. The defence emphasizes the fact that JWR has not committed any offences for 16 years and that, at age 64, he is at an age where his sexual drive is diminishing. I note, however, that JWR has been in custody for approximately one-third of those 16 years and did not have young victims available to him. The defence further contends that notwithstanding JWR's denial of his crimes, he has demonstrated that he is controllable both in and out of prison. [111] The defence asks that the court give greater weight to the expert opinions of Dr. Zoffmann and Dr. Nicholaichuk, who assessed JWR's risk of recidivism at low to low/moderate and low, respectively. [112] The Crown places less emphasis on the expert testimony, noting that the experts themselves described risk assessment as being "in its infancy" and an inexact science. The wide range of risk assessments proffered in this case

supports the Crown's contention. [113] The Crown emphasizes the third aspect of the analysis under s. 753(1)(b): by his past conduct, JWR has shown a likelihood of failure in the future to control his sexual impulses. The Crown points to the evidence of the defence expert, Dr. Nicholaichuk, who ultimately agreed that the best predictor (up to 50 percent) of future conduct is past behaviour. The Crown argues that the lack of offences since 1989 is not inconsistent with previous gaps in JWR's offending (from 1977 to 1983 and from 1983 to 1988). As to JWR's age, JWR committed the earliest offence against DEG as early as January 1966, when he was 25 years old. The last offence, against his step‑granddaughter, occurred in 1988, when he was 48 years of age. He was 49 when the incidents in California involving his step‑granddaughter took place. [114] Assessing the evidence as a whole, I conclude that it establishes beyond a reasonable doubt that JWR is a moderate risk to re‑offend and that it is likely that in the future he will fail to control his sexual impulses and will cause injury, pain or other evil to other persons. My primary reasons for reaching this conclusion are: (a) I accept Dr. Lohrasbe's opinion that JWR has a strong sexual deviancy and that it is not uncommon for there to be long gaps in a sexual offender's pattern of offences. In accepting Dr. Lohrasbe's opinion, I am

mindful that he did not have an opportunity to interview JWR and therefore could not provide a psychiatric assessment. (b) Both Dr. Lohrasbe and Dr. Zoffmann expressed serious concern as to JWR's future exposure to children and the absolute need for him to be supervised. (c) All of the experts who assessed JWR agreed in one form or another that he cannot be cured of his affliction; he can only be managed. (d) I accept Dr. Miller's diagnosis of JWR as pedophilia‑nonexclusive type over Dr. Zoffmann's and Dr. Nicholaichuk's view that he is an incest type sexual offender. I do not accept that JWR's sexual offending is confined to the family setting. Rather, he has exhibited that he is a danger to young people under his control, including a legal client. (e) I understand and accept that the risk assessment instruments employed by Drs. Zoffmann, Miller and Nicholaichuk are useful tools in the assessment of sexual offenders. However, I am cautious in accepting the conclusions drawn from the use of those instruments because of the acknowledged basis upon which they are measured, namely recidivism rates. The deeply troublesome aspect of the use of recidivism rates is the acknowledged and notorious fact that recidivism rates underreport the actual occurrence rates of sexual re‑offending. (f) Those experts who interviewed JWR quite properly included in their assessments certain

information provided to them by the offender and collateral family members and acquaintances. For the reasons stated in my findings as to JWR's credibility at trial, I approach that information and the inferences drawn from it with considerable caution. I find support in this caution from certain of the statements made to the experts by JWR. For example, he offered an explanation to Dr. Zoffmann for his son's charges of sexual touching. He said that he and his wife had been told to check DCCR's inguinal and scrotal area every six months or so. That was not an explanation offered by JWR at trial because he was aware that the family doctor, his former wife and his victim would say that his explanation was untrue. He told Dr. Miller that "he was used to being briefly naked" in the company of other men, but was otherwise modest with regard to sexuality. This of course is contrary to his evidence at trial in which he admitted that he forced his children to strip naked on boating excursions. JWR also told Dr. Miller that there is "some form of chemical imbalance" that caused his family to make the allegations against him. Dr. Miller, not surprisingly, considered that explanation to be implausible. It is apparent that JWR has continued in the assessment process to do that which he did in his testimony at trial, namely to manipulate the evidence and attempt to place himself in the most

favourable light possible. While that may, in his circumstances, seem understandable, it nevertheless causes me to treat the opinions of those who have accepted his information at face value (which, in fairness to the experts, they must) with considerable caution. (g) JWR's absolute denial of the offences has rendered it impossible for the experts who have interviewed him to determine the factors that cause him to sexually offend. In consequence, they have been forced to rely on actuarial measurements of risk which, while helpful, nevertheless do not address the specific circumstances of JWR's sexual offending. None of the experts can say what created JWR's sexual offending. Accordingly, none can say whether his sexual offending can, for certain, be controlled. (h) The underlying purpose of both the dangerous offender and long-term offender provisions of the Criminal Code is the protection of the public: R. v. Lyons, [1987] 2 S.C.R.

309. Drs. Lohrasbe, Zoffmann and Miller all testified that JWR cannot be permitted to be in situations in which children are present and at explicit risk. (i) It is significant that both Dr. Zoffmann and Dr. Lohrasbe regarded JWR's conduct with LJ to be particularly troubling. Dr. Zoffmann described his behaviour as, at the very least, an example of incredibly poor judgment and impulsivity. Dr. Lohrasbe testified that JWR's behaviour demonstrated a recklessness that is somewhat unusual and outside the average paedophilic offender. [115] JWR has been convicted of extremely serious crimes perpetrated primarily against his own children, his stepchildren and a step-grandchild. He raped DEG on countless occasions from the time she was 13 years old. He fondled and groped DMR and digitally penetrated her vagina on numerous occasions. He masturbated his sons and performed oral sex on them. In one particularly horrific incident he assaulted DEG in the presence of his son and encouraged his son to place his fingers in his sister's vagina. It is difficult to conceive of a more brutal violation of his children's trust. All of these offences were perpetrated in an atmosphere of control and violence. He threatened his victims not to reveal his abuse, telling them it was normal or that they would not be believed or that it would cause the family to disintegrate. His behaviour was abhorrent,

despicable, and horrific. All of his victims have endured long-lasting suffering from his abuse. He cannot be allowed to inflict similar harm again. [116] Having regard to all of the evidence, I conclude that the Crown has satisfied the burden of proving that it is likely that in the future JWR will fail to control his sexual impulses and cause pain, injury or other evil to other persons, and has satisfied the requirements under s. 753(1)(a)(i) and s. 753(1)(b) to have JWR declared a dangerous offender. [117] However, in keeping with the direction in R. v. Johnson, [2003] 2 S.C.R. 357, I retain a discretion not to declare JWR a dangerous offender even where all of the statutory criteria are met if a less restrictive sanction will protect the public adequately from the threat of harm. If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long‑term supervision order, then I cannot properly declare JWR dangerous and impose an indeterminate period of detention. [118] Section 753.1(1) of the Criminal Code provides that: The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two

years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. If the circumstances set out in s. 753(1)(2) are satisfied, then there is a conclusive presumption of "substantial risk". (See: R. v. Weasel (2003), 181 C.C.C. (3d) 358 (Sask. C.A.), ¶ 17‑18, 56 and R. v. McLeod (1999), 136 C.C.C. (3d) 492 (B.C.C.A.) ¶ 26‑27.) [119] The court in Johnson, supra, held at ¶ 30 that: In order for the sentencing sanctions available pursuant to the long-term offender provisions to reduce the threat associated with an offender who satisfies the dangerous offender criteria to an acceptable level, it must be possible for the same offender to satisfy both the dangerous offender criteria and the long-term offender criteria. To repeat, the three criteria that must be established on a long-term offender application are: (i) it must be appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence; (ii) there must be a substantial risk that the offender will reoffend; and (iii) there must be a reasonable possibility of eventual control of the risk in the community. On a dangerous offender application, the sentencing judge must be satisfied that the offender constitutes a threat to the life,

safety or physical or mental well-being of other persons, on the basis of a pattern of repetitive or persistent aggressive behaviour, brutal behaviour, or sexual misconduct described in s. 753(1)(a) and (b). [120] As to the first criterion, there can be no doubt that the offence in Count 1 attracts a sentence of two or more years. The maximum sentence is 10 years. The forced masturbation; digital vaginal penetration causing tearing and burning; and invited sexual touching and fondling over the granddaughter's vaginal area are serious offences exhibiting a shocking abuse of trust deserving of a sentence in excess of two years in prison. [121] As to the second criterion, JWR was convicted of sexual assault under Count 1. I have found that by his conduct in sexual matters that he has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [122] The third criterion poses the greatest challenge, namely whether there is a reasonable possibility of eventual control of the risk in the community. I think that the threat can be reduced to an acceptable level so long as JWR is supervised in the community. I make this finding based on the following assumptions that are supported by the evidence: (a) 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 (as do Drs. Lohrasbe, Zoffmann, Miller and Nicholaichuk) that JWR's sex drive will diminish over time. The principal concern relates to his homosexual paedophilic tendencies, which diminish at a lesser rate. However, these risks may be managed by preventing JWR from working in employment or being in situations in which he would have an opportunity to molest children. (b) There is conflict in the expert evidence as to whether JWR's denial of these offences precludes treatment. Dr. Nicholaichuk testified that even sexual offenders who deny their behaviour but who cooperate with treatment do well. However, Dr. Zoffmann stated that JWR "cannot fully embrace or accept treatment while he denies the offences." JWR has cooperated in other aspects of his behaviour since his arrest in 1997. He complied with the bail conditions I imposed in 2001. His record while in prison indicates only trivial infractions. JWR has stated that he is willing to undergo treatment. That treatment, combined with his diminishing sex drive and long‑term supervision that excludes him from forming family‑style relationships or working in any capacity with children, creates a reasonable possibility of eventual control of JWR's risk in the community. I accept Drs. Zoffmann's and Nicholaichuk's recommendation that low intensity treatment may be sufficient for JWR's circumstances. (c) A determinate sentence

alone would not adequately protect the public. JWR's sentence will exceed two years, thus eliminating the possibility of imposing a probation order (s. 731(1)(b)). Later in these Reasons I find that JWR has to date served the equivalent of 11 years imprisonment. Accordingly, any conditions imposed upon his statutory release would not be sufficient to protect society for a sufficiently long period of time. Therefore, the long-term offender designation is the only appropriate sentencing alternative to the dangerous offender designation. [123] Accordingly, pursuant to s. 753.1(a), I sentence JWR to three years imprisonment on Count 1 and, pursuant to s. 753.1(b), order that JWR be supervised in the community for a period of ten years following his release in accordance with s. 753.2 of the Criminal Code and the Corrections and Conditional Release Act, S.C. 1992, c. 20. [124] At ¶ 139 and 140 of these Reasons, I discuss the totality of the sentence and the time served in custody pending trial and sentence.

SENTENCES ON REMAINING COUNTS [125] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [126] I am also mindful that the sentences imposed must be proportionate to the gravity of the offence and the degree of responsibility of JWR: s. 718.1. [127] Other sentencing principles stated in s. 718.2 are applicable in the case at bar: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ... (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner or child, (iii) evidence that the

offender, in committing the offence, abused a position of trust or authority in relation to the victim, ... shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [128] The defence provided several decisions which, it was submitted, supported a global sentence of between 8 to 10 years imprisonment. The defence placed some reliance on Bakker, supra, in which the Court of Appeal upheld the trial judge's decision to dismiss the Crown's dangerous offender application and the imposition of an eight‑year prison term. That case concerned an established paedophile who, between 1975 and 1991, committed various acts of sexual offending (buggery, attempted buggery, gross indecency, fellatio, masturbation, indecent assault, and sexual assault) involving six victims ranging in age from eight to 15 years. [129] A unique feature of the case

was that the offender committed the crimes in respect of four of the victims when he was exercising his authority as a senior court official. The trial judge concluded that the same factors, conditions and opportunities for re‑offending would not exist in the future because the offender had lost the position that allowed him to improperly exercise his authority. [130] It is of some significance that JWR has stated that it is his intention to return to the United States and to practice law. That is in all probability an unachievable goal. However, it demonstrates his lack of insight into the position in which he must not allow himself to be placed. [131] The defence also referred to R. v. T.A.D. (1995), 68 B.C.A.C. 236, in which the Court of Appeal allowed an appeal from a three‑year sentence and imposed a term of six years. In that case, the 51 year old offender committed sexual offences, including sexual intercourse, on his stepdaughter over a period of nine years. The Court of Appeal found that the three‑year sentence failed to sufficiently recognize the seriousness of the continuing abuse and the serious continuing breaches of trust. In giving the judgment for the court, McEachern C.J.B.C. stated at ¶ 9: Sentences for such a series of offences of up to 12 years or more have been approved by the Court but the usual range is more like five to eight or nine years. [132] R. v.

C.D.H. (2002), 165 B.C.A.C. 93, 2002 BCCA 124, concerned a youthful offender with no criminal record and a disturbed background. That decision is of little assistance. [133] R. v. P.P.H. (2003), 190 B.C.A.C. 89, 2003 BCCA 591, concerned an offender who pleaded guilty to two charges of sexual assault. He repeatedly assaulted his two stepdaughters over a five-year period. The trial judge imposed two seven‑year sentences to be served consecutively. The Court of Appeal considered the range of sentence to be between 12 and 18 years. The 14‑year sentence was held to be not inappropriate given the appalling nature of the crimes. [134] The defence submits that a mitigating factor in the case at bar is that JWR is a first time offender. No criminal record is alleged. The defence further submits that the public exposure decreases the need for individual deterrence. The defence relies in this regard on the evidence that JWR is an incest type of offender who, once caught and exposed, is less likely to re‑offend. In that respect, I must note my rejection of the classification of JWR as solely an incest type offender. [135] The defence also submits that JWR has lost his family, his professional status, and his good reputation in the community. In that regard, I first note that JWR has only himself to blame for the loss of his family. Second, JWR has stated that he retains his status as a

member of the California bar. Third, although the defence repeatedly referred to JWR's public vilification and "numerous trials and appeals," I note that there has been a ban on publication under s. 486(3) of the Criminal Code that has undoubtedly served to shield JWR from full public vilification in the interest of protecting his innocent victims, his children. [136] The Crown submits that the conduct in relation to Count 1 warrants a six‑year sentence. I have already indicated that I consider a three‑year sentence to be appropriate. The Crown submitted that a global sentence of between 20 to 25 years is warranted having regard to the profound abuse of JWR's position of trust or authority in respect of all of his victims. [137] I have already noted the vile circumstances of this case. The abuse of his own children and those victims in which he was in a position of trust are especially aggravating factors. The effect that his conduct has had upon his victims is significant and life-long. [138] Having regard to the principles of sentencing, the principle of totality, the circumstances of JWR, the circumstances of the various offences, and the impact that those offences have had on the victims, I find that the appropriate sentence on the whole of the counts to be 16 years. In order to achieve that result, and to impose a fit sentence on each count, I sentence JWR as

follows: Count 1: Sexual assault of LAR. Maximum Sentence: 10 years. Sentence: 3 years. Count 2: Indecent assault of JWR, Jr. Maximum Sentence: 10 years. Sentence: 18 months, consecutive to the sentence imposed on Count 1. Counts 3 and 4: Indecent assault of DEG. Maximum Sentence: 5 years. Sentence: 3 years on each count, concurrent the one with the other. Counts 5 and 6: Rape of DEG. Maximum Sentence: Life. Sentence: 8 years on each count, concurrent the one with the other and concurrent with the sentences imposed on Counts 3 and 4, but consecutive to the sentence imposed on Count 2. Count 7: Sexual intercourse with DEG, a female person who was not his wife and who was under the age of 14 years. Maximum Sentence: Life. This count is subsumed under Counts 5 and 6 and is subject to the ruling in R. v. Kienapple, [1975] 1 S.C.R.

729. I impose a conditional stay of proceedings on this count. Count 8: Assault of DEG. Sentence: 6 months concurrent with the sentences imposed on Counts 3 to 6. Count 9: Indecent assault of KJH. Maximum Sentence: 5 years. Sentence: 6 months, concurrent. Counts 10 and 11: Indecent assault of DMR. Maximum Sentence: 5 years. Sentence: 2 years on each count, concurrent the one with the other, but consecutive to the sentences imposed on Counts 5 and 6. Count 12: Assault of DMR. Maximum Sentence: 2 years. Sentence: 6 months, concurrent with the sentences imposed on Counts 10 and 11. Count 14: Indecent Assault of DCCR. Maximum Sentence: 10 years. Sentence: 18 months, consecutive to sentence imposed on Counts 10 and 11. [139] I have imposed consecutive sentences on those counts that are totally unrelated and which took place at separate times and places. By the imposition of certain consecutive sentences, the total sentence is 16 years. Having regard to all of the circumstances of this case, I do not consider that the total sentence of 16 years is harsh or excessive. [140] Crown counsel conceded that JWR should receive double credit for the five years and six months he has been in custody pending trial and sentence. I exercise my discretion and find that he has served the equivalent of 11 years in custody: R. v. Wust, [2000] 1 S.C.R. 455. [141] Taking into account the 11 years that

JWR has been credited with serving, and in order to achieve the resulting five‑year sentence, I reduce the sentences on Counts 5 and 6 from eight years to five years and make all of the sentences concurrent one with the other. Had it not been that JWR was entitled to credit for time served, the appropriate sentence would have been 16 years. [142] Lastly, I must address the Crown's application, granted by me on December 16, 2004, that JWR comply with the Sex Offender Information Registration Act, S.C. 2004, c.

10. The Act came into force on December 15, 2004. [143] Since the granting of the order, I have reviewed in more detail the requirements of granting the order under s. 490.012 of the Criminal Code. In doing so, I am satisfied that the impact of the order made is not grossly disproportionate to the public interest in protecting society. Clearly, all available means to ensure that JWR does not re‑offend, or if he does re‑offend, that he will be detected, are in the public interest. [144] The duration of the order made in respect of JWR ensures that the registration provisions will be in effect for his lifetime. [145] JWR endorsed the order on December 16, 2004. However, I did not read the provisions to JWR. I do so now. [146] Section 4(2) of the Sex Offender Information Registration Act requires you to report to a registration centre within 15 days after the order is made or, if a custodial sentence is imposed, within 15 days after being released from custody. When reporting to a registration centre you must provide, among other things, your name and every alias you use, your address, telephone number for your main residence, any secondary residence, your place of employment and where you may volunteer. Further, you must give your height and weight and a description of every physical distinguishing mark on your body. If you will be away from your main or secondary residence for

more than 15 consecutive days, but still within the country, you must provide every address at which you intend to stay and your departure and return dates. [147] I hereby direct that a copy of the order be given to JWR. [148] If you fail, without reasonable excuse, to comply with this order, you are liable, in the case of a first offence, on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both; and in the case of a second or subsequent offence, on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both; or, on summary conviction, to a fine of not more than $10,000 or imprisonment up to six months, or both. [149] I have already made, on December 16, 2004, the mandatory DNA and weapons prohibition orders. "P.A. Kirkpatrick, J." The Honourable Madam Justice P.A. Kirkpatrick