I reported on T.L.P.'s conviction two and a half years ago. Things move slowly here in Canada and we've finally gotten to the second act, sentencing. Yes two and a half years. But I doubt T.L.P. minds. The time served between conviction and sentencing generally counts as time and a half and, given his crimes, T.L.P wasn't going to over serve by waiting years for sentencing. So his time spent between the two events was essentially money in the bank. This is the sentencing decision;
R. v T.L.P.
2017 BCSC 1868
http://canlii.ca/t/h8rv3
T.L.P got 11 years less 31.5 chronological months for actual time served between conviction and sentencing and less another 16.5 months for the 50% boost-up.
This is a very long and technical sentencing decision with much psychiatric evidence so I'll do a superficial review to show the odd path (at least to me) that it took to get to the sentence. The delay was largely the result of the Crown preparing a case against him to be determined whether or not he is a "Dangerous Offender".
First the battling experts;
[132] As noted, T.L.P. did not oppose the Crown’s application under s. 752.01 Part XXIV of the Code that he be remanded for psychological assessment.
[133] T.L.P. also fully co-operated in the assessment that was then conducted by Dr. Hervé.
[134] Dr. Hervé’s assessment report dated August 25, 2015 was filed with the Court on August 28, 2015. Dr. Hervé was also called by the Crown as an expert witness during these sentencing proceedings.
[135] In response to Dr. Hervé’s report and opinions T.L.P. tendered a psychological assessment report dated October 20, 2016 prepared by Mr. Conrad MacNeil who also testified.
[136] Dr. Hervé is a registered psychologist in the Province of British Columbia who specializes in Forensic Psychology. He has over eighteen years of experience in conducting assessments including risk and threat assessments both generally and in the context of dangerous and long-term offender applications.
[137] Dr. Hervé interviewed T.L.P. for slightly more than 12.5 hours in July of 2015. He also administered two psychological tests, being, the Personality Assessment Inventory (PAI) and the Hare Psychology Checklist-revised (PCL-R) both of which measure personality and psychopathology.
[138] In formulating his opinions that are contained in his assessment report Dr. Hervé also conducted a collateral interview with one of T.L.P.’s sisters. In addition he reviewed: British Columbia Corrections files concerning T.L.P.; transcripts of the Proceedings at Trial; copies of interviews of T.L.P. by the police during their investigation of him; and, the reasons for judgment in which I convicted T.L.P.
[139] Mr. MacNeil has a Master of Arts degree in Psychology from Carleton University in Ottawa, Ontario that he obtained in 1981. He has worked in the field of forensic psychology as a clinical and consulting psychologist in Alberta until 2008 and in British Columbia since then but is not a registered psychologist in either province. He has, however, worked extensively in correctional facilities primarily as a private contractor involved in assessment and treatment of offenders and program development. Mr. MacNeil has also lectured on various psychological topics including violence and criminal behaviour at the third and fourth year level at Lethbridge Community College (1988 to 1993), Athabasca University (2002 to 2007) and the University of Lethbridge (2005 to 2007).
[140] Mr. MacNeil interviewed T.L.P. for five hours on October 20, 2016 and administered two psychometric tests: the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Beliefs Attitudes and Sexual Experiences Composite (BASEC).
[141] Before doing so Mr. MacNeil reviewed court documents and transcripts, police interviews of T.L.P. conducted during the investigation of him, information from the Correctional Service of Canada concerning assessment and treatment protocols; documentation from British Columbia Corrections concerning T.L.P.’s post-conviction incarceration; Dr. Hervé’s report and “a multitude of letters written by T.L.P. between March 13, 2015 to August 16, 2016”, the contents of two of which I have addressed.
[142] Although the expertise and qualifications of Dr. Hervé and Mr. MacNeil are very different, with Dr. Hervé being more academically accomplished and having greater assessment experience, I qualified both as experts able to provide opinion evidence on the psychological and risk assessment issues that must be addressed in respect of applications under Part XXIV of the Code.
[143] I did so because, given Mr. MacNeil’s extensive experience with treatment in corrections settings, his more limited academic qualifications and assessment expertise are matters that go to the weight to be accorded to his opinions rather than the admissibility of them.
So fine, battling psychiatrists. The big issue in dangerous offender applications is future potential harm to the public. So, next to be determined was whether or not he could be 'cured' of his proclivity for very young children, the so-called Risk for Recidivism;
[173] On the present state of the law as enunciated in Szostak, and the Court of Appeal’s decision in Boutilier the possibility of successful treatment is of limited application in determining whether an offender is a dangerous offender. Rather, the possibility of successful treatment is significant in choosing the appropriate disposition.
[174] In this case given that the Crown has agreed that if he is found to be a dangerous offender, T.L.P. should be sentenced to a determinate rather than indeterminate term of incarceration the only remaining issues concerning “appropriate disposition” in contest are the length of the determinate sentence that will appropriately address T.L.P.’s offending and the terms of the ten year Long Term Supervision Order that should be imposed upon him.
[175] What is at issue at the designation stage of the dangerous offender inquiry is whether the Crown has met the burden of proving that T.L.P. is a dangerous offender under the provisions of s. 753(1)(a) or (b).
[176] If not he must be sentenced as a long term offender under s. 753.1.
[177] To the extent that I may undertake a limited inquiry into the issue of treatability at the designation stage I find that the totality of the evidence requires a finding that while T.L.P. may at times pay lip service to a willingness to engage in treatment to address the causes of his sexual offending against children -- as he expressed to Mr. MacNeil – the genuineness of that willingness is highly suspect.
[178] Both Dr. Hervé and Mr. MacNeil have opined that T.L.P. meets the DSM-5 criteria necessary for the diagnoses of a Pedophilic disorder of the non-exclusive type.
[179] Both experts also agree that the greatest risk of T.L.P. re-offending sexually against children as he has in the past is with respect to prepubescent female children with whom T.L.P. is in a familial or similarly close adult-child relationship.
[180] T.L.P. has demonstrated in his evidence at trial, in his interviews with Dr. Hervé, and Mr. MacNeil and in his letters to Crown counsel to which I have referred the belief that: he is not a pedophile and that others are; that he is a protector of children, not a predator; and, that he understands childhood development and sexuality better than medical or other professionals.
[181] As far as I am aware T.L.P. continues to make those assertions and has never espoused a different or ameliorated view of his offending.
[182] Perhaps the most disturbing of the evidence related to the prospect for effective rehabilitative treatment to address the pedophilic causes of his offending identified by both Dr. Hervé and Mr. MacNeil is that found in T.L.P.’s letter to Crown counsel which I excerpted at para. 130 of these reasons. He writes that he will take treatment programs to gain knowledge of the treatment available so that he can credibly pose as a pedophile for the purposes of his proposed “secret society” to be created so that, as a protector of children, he can expose pedophiles.
[183] The totality of the evidence satisfies me that T.L.P. is not genuinely motivated for rehabilitative treatment and that in those circumstances together with his long standing and still continuing obsession with childhood sexuality and prepubescent female children it is highly unlikely that any treatment will be successful in addressing the root causes of his criminal offending.
[184] That evidence also leads me to conclude that given his conduct in the commission of the predicate offences and the pattern of his sexual offending against children since 2001 it is highly unlikely that any treatment he may receive will in future restrain his behaviour or control his sexual impulses against prepubescent female children.
So we have a judge who says that treatment is useless. He will probably in future, if released, again predate against young girls. But then the Crown throws him a lifeline;
[185] The Crown has conceded that the evidentiary record of T.L.P.’s performance both under community supervision while on bail pending the trial of the charges against him as well as while incarcerated demonstrates that he can be subject to control in the community.
[186] As a consequence of that evidence the Crown has taken the position under s. 752(4.2) of the Code that notwithstanding its position that T.L.P. should be designated as a dangerous offender under s. 752(1) he should be subject to a determinate sentence rather than an indeterminate sentence followed by a ten year Long Term Supervision Order.
This was the "WHAT THE FUCK?" moment for me. As I understand it the purpose of declaring an individual a dangerous offender is to allow the court to give him an indeterminate sentence so that he can be incarcerated indefinitely. So why is the Crown going for a fixed-term sentence and a Dnagerous Offender status? I contacted an expert and asked him. The issue that drove the Crown to go for the dangerous offender status is probably the Long Term Supervision Order. TLP was born in 1972 (para 96). That makes him 45 or 46. A 20 year sentence means he's liable for release around age 65. While it's not cited in the decision there is caselaw that says sex offender's risks drop off at age 65 because that's what the stats show. So TLP's risk will probably diminish at that point. A LTO of 10 years, plus an eleven year sentence can to some extent manage TLP's risk.
However even the judge had some problems with a deteminate sentence for a dangerous offender;
[187] It is somewhat difficult to rationalize those provisions of Part XXIV of the Code that allow for a determination that an offender meets the criteria for designation as a dangerous offender yet can be sentenced to a determinate sentence because of evidence showing a reasonable expectation of control in the community under supervision after release from prison.
[188] That is, however, the legislative regime now in place after the 2008 amendments to the Code as discussed in Szostak and by our Court of Appeal in Boutilier. The issue of dangerousness is determined at the designation stage based upon proof that the offender meets the statutory criteria for a finding that he or she is a dangerous offender. The issue of whether there is a reasonable expectation of control in the community is a part of the inquiry at the disposition stage.
The judge had no problem designating him a Dangerous Offender and nailing him with the ten year LTO, in fact he made the LTO indeterminate after the ten years.
[189] A finding that there is a likelihood, as opposed to only a substantial risk that, based upon a pattern of either previous aggressive behaviour or failure to control sexual impulses, the offender will re-offend in the same way with the same consequences for his or her victim requires the designation of the offender as a dangerous offender under s. 752(1).
[190] While the issue of eventual control in the community may ameliorate the sentence to be imposed upon the dangerous offender it does not affect the designation.
[191] The consequence of designation as a dangerous offender is that in the event of the commission of another serious personal injury offence by the offender the dangerous offender designation will govern any prosecution of that future offence.
[192] To that extent, I find that Mr. MacNeil’s opinion that the high risk that T.L.P. will in future re-offend against prepubescent female children is limited to situations where he is “in the community unsupervised, without restrictions and having access to children within a home environment” conflates issues of control with issues of intractability.
[193] In my opinion a “reasonable expectation of control in the community” must be read as extending beyond any period under which T.L.P. may be subject to a Long Term Supervision Order.
[194] In those circumstances I am satisfied that notwithstanding the evidence of T.L.P.’s past performance while under supervision does establish a reasonable expectation for his control and the protection of the public, it does not overcome the likelihood that he will in the future fail to control his sexual impulses as he has in his offending against his four nieces that is the subject of the predicate offences as well as in his sexual offending against C in 2001.
[195] The totality of the evidence adduced at trial and during this Part XXIV sentencing hearing, in combination with concessions and admissions made by T.L.P. identified by me in para. 49 of these reasons establishes that by application of s. 752(1)(b) of the Code T.L.P. must be designated as a dangerous offender.
