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SEXUAL ASSAULT - Aggravated sexual assault - Kidnapping, hostage taking and abduction - Kidnapping - Attempts, conspiracies and accessories - Attempts

Monday, September 11, 2017 @ 8:49 AM  


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Appeal by the accused from convictions for attempted kidnapping and attempted aggravated sexual assault of a young person, as well as from the dangerous offender designation and indeterminate sentence of imprisonment. Police found the appellant in a forest adjacent to an elementary school. In the appellant’s backpack, police found a car manual, a roll of duct tape, some wires, a garden hoe, latex gloves, pornographic pictures, condoms, girls’ underwear, photographs of naked girls between the ages of about eight and 10, as well as handwritten notes, which discussed the rape and torture of young girls. These offences occurred a few days after the appellant’s thwarted attempt to kidnap, rape, and kill his friend’s young daughter. The trial judge found that the appellant’s writings in the backpack were similar to diary entries. They indicated that before arriving at the park where police found him, the appellant had spent three hours wandering through another park looking for a girl to rape. Both the Crown psychiatrist and the defence psychiatrist testified that, from a psychiatric perspective, the appellant met the criteria for designation as a dangerous offender. The trial judge accepted the Crown psychiatrist’s opinion that the appellant met the diagnostic criteria for several psychiatric disorders, including severe substance dependence disorder involving alcohol and cocaine, pedophilia, sexual sadism, and anti-social personality disorder, with obsessive-compulsive personality traits. The appellant argued that his actions in the forest were not sufficient in law to constitute an attempt to commit the offences at issue and that the trial judge erred in law in finding that his actions went beyond mere preparation and were sufficient to constitute an attempt to commit the offences. He also argued that, given that class in the school had started, he had passed up any opportunity to commit the offences and might have been in the process of abandoning any intention to do so. The appellant argued the trial judge erred in finding that he met the criteria for designation as a dangerous offender.

HELD: Appeal dismissed. The appellant’s actions must be viewed in the context of his recently thwarted attempt to kidnap, rape, and kill his friend’s young daughter. Considered in that context and in combination with the appellant’s diary-like writings, the appellant’s actions in the forest could only be viewed as part of a crime in progress. The appellant had crossed the line into criminal conduct and taken steps beyond mere preparation to commit a crime. He was actively engaged in seeking out a child on whom to perpetrate the plans he had committed to writing. He was carrying all the tools he intended to use to carry out his plans. It was open to the trial judge to designate the appellant a dangerous offender. The appellant’s conduct demonstrated a pattern of repetitive behaviour showing a failure to restrain his behaviour. The evidence in his writings indicating he had attempted to take his friends’ daughter on more than one occasion, standing alone, demonstrated the necessary pattern. He repeated the same type of behaviour when he went trolling for another child. The trial judge made no error in considering the appellant’s writings to conclude that the brutality criterion under s. 753(1)(a)(iii) of the Criminal Code was met. The fact that the appellant might have been thwarted in his efforts to carry out his fantasies did not bar considering his conduct when determining whether the threshold under s. 753(1)(b) relating to the likelihood of failure in the future to control his sexual impulses had been satisfied. The trial judge did not err in holding that there was no reasonable possibility of eventually managing the appellant’s risk in the community. There was uncertainty about the appellant’s willingness to take sex drive reducing medication, about the impact such medication could have in reducing the appellant’s risk to the community and about enforcement challenges that could arise in relation to anti-androgen medications. The appellant suffered from life-long disorders for which there was no cure and the evidence directed to a possibility that the appellant could be treated sufficiently to reduce his risk to an acceptable level amounted to no more than an expression of hope.

R. v. Byers, [2017] O.J. No. 4082, Ontario Court of Appeal, J.I. Laskin, J.M. Simmons and G.I. Pardu JJ.A., August 4, 2017. Digest No. TLD-Sept112017001