Ruling deals with when a sexual offender isn’t a dangerous offender

An Ontario judge has rejected a dangerous offender application in the case of a man who sexually assaulted two children despite a previous record involving a similar offence.

According to the defence counsel in the matter, the case is one of the first since 2008 changes to the dangerous offender provisions to deal with the question of when a sexual offender isn’t a dangerous offender. It also demonstrates the propensity of Ontario Crowns to seek and obtain such designations, says Daniel Brodksy.

The offender in this case, identified only as J.D.S., sexually assaulted his niece more than 10 years ago. She came forward with the allegations in 2012. The other victim was his daughter, D.S., in relation to offences that began in 2006.

A key issue before Ontario Court Justice David Cole was the psychiatric assessment by Dr. P. Klassen, who found while J.D.S. had “an underlying interest in minors,” an actuarial risk assessment suggested he’s unlikely to reoffend.

“I do not have confidence in stating that this gentleman is likely to reoffend,” he said.

That was despite his previous conviction and treatment for sexual offending as part of a 1993 probation order, a fact the Crown put forward among the arguments for a dangerous offender designation.

The judge, however, found the Crown’s arguments fell short. “It seems to me that if a court is being asked to take the rare step of imposing a dangerous offender designation (determinate or indeterminate), one should have a clear and explicit evidentiary and logical basis for so doing,” wrote Cole in his sentencing decision on Friday.

“In my judgment that level of proof simply is not clearly present in this case, despite Crown counsel’s well-presented arguments in favour of that position. In reviewing publicly available statistics one learns that, since the inception of the dangerous offender regime in 1977, on average 18 Canadian offenders per year have been designated as dangerous offenders. Within this context, I am of the view that J.D.S. does not clearly qualify as one of that very restricted number.”

In the end, Cole rejected the dangerous offender application and handed J.D.S. a 10-year sentence. After serving his term, J.D.S. will be subject to a long-term offender designation of seven years.

Brodksy, who acted for J.D.S., says the case reflects the ease with which Ontario Crowns often seek and obtain dangerous offender designations given Klassen’s comments that the offender was unlikely to reoffend.

“Ontario is the place you don’t want to be if a dangerous offender or long-term offender application is on the table,” he says, adding it was shocking the attorney general allowed the Crown to go ahead with an application in this case in light of Klassen’s findings.

“It seems to be relatively easy to get a dangerous offender designation in Ontario,” he adds.

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