The “burn out” issue
Ramgadoo was 33 at the time of sentencing. He had a criminal record dating back 5 years which included prior convictions for assault, criminal harassment, breach of a conditional sentence order and sexual assault. The sexual assault conviction stemmed from a random sexual attack perpetrated on an 18 year old woman.
The “burn out” theory postulates that there is an age-related decline in propensity for violent behaviour. Colloquially, as offenders age, they burn out and offend less. Dr. Klassen, the forensic psychiatrist who was called as an expert by the Crown testified that, statistically, in the case of “stranger rapes”, the offenders who perpetrate them show a risk of reoffence of essentially zero by the time they reach their fifties.
However, in Ramgadoo’s case, because he suffered from schizophrenia, the statistics that underpin the “burn out” theory may not paint a reliable picture of his risk because there are few offenders in the statistical sample that have schizophrenia. Dr. Klassen testified that Ramgadoo’s schizophrenia made it possible that a violent offence could be committed at a more advanced age than would normally be predicted and that he had seen this in his own clinical experience. The forensic psychiatrist called by the defence did not dispute Dr. Klassen’s evidence on this issue.
Defence counsel did not advance the argument that the effect of aging on Ramgadoo’s risk of reoffending should be considered nor did the sentencing judge refer to the “burn out” theory in his decision.
On appeal, Ramgadoo argued that the sentencing judge should have considered the “burn out” theory in assessing the risk of recidivism. In dismissing this ground of appeal, Feldman, J.A. of the Ontario Court of Appeal wrote:
“Based on the state of the evidence before him and the fact that defence counsel did not rely on the aging effect in his submissions, there was no basis and no reason for the sentencing judge to refer to the aging effect as a consideration in his assessment of the ability to control the risk to the community of the appellant reoffending in the future” [para 47].
The imposition of a mandatory treatment order
Ramgadoo argued that the sentencing judge did not consider the use of a mandatory drug treatment order enforceable as a condition of a long-term supervision order. Although he acknowledged that no person can be forced to take medication against his will, he argued that a failure to willingly take the ordered anti-psychotic and sex-drive reducing medication could be addressed by the charging of a breach of the long-term supervision order.
The sentencing judge considered the evidence of Ramgadoo’s probation officer who testified that he showed little insight into his offending conduct and was not eager to engage in sexual offender counselling. He also told her, almost every time they met, that he felt fine and no longer wanted to take his medication.
The sentencing judge also considered the evidence of the very experienced social worker who had been counselling Ramgadoo prior to the predicate offence. The social worker visited with Ramgadoo a mere five days before the attack on the 13 year old girl and at that time was informed that Ramgadoo felt that he was “feeling and doing a lot better.” The social worker testified that this was the most coherent that he’d seen Ramgadoo in a long time. Ramgadoo also told the social worker that he’d been taking his prescribed medications and not using drugs or alcohol but this turned out not to be true.
Dr. Klassen testified that although Ramgadoo did well and was compliant with his medication regime while in an institutionalized setting, the minute he was out in the community, he could not be relied upon to take his medications. Dr. Klassen was confident that Ramgadoo would breach his conditions. Dr. Klassen ultimately opined that there might be a notion of reasonable control in the community if Ramgadoo were to live in accommodation approved of by the National Parole Board, and was consistently treated with anti-psychotic medications and conditions were in place to monitor and manage his substance use and he was taking injectible sex-drive reducing medications and this could all be maintained constantly until he was in his mid-forties.
The sentencing judge arrived at the conclusion that, given all of the evidence he heard about Ramgadoo and his offences, there was no reasonable possibility of eventual control of his risk in the community. He did not specifically address the possibility of making treatment a condition of a long-term supervision order.
The Court of Appeal found that “the suggested condition precedent to the recommendation of a mandatory treatment order was not met: the sentencing judge was not convinced on a balance of probabilities that the appellant was willing to engage in treatment” [para 56].
Feldman, J.A. concluded:
“I agree with the appellant that when deciding whether to make a long-term offender or a dangerous offender finding, sentencing judges should consider a mandatory treatment recommendation as one of the conditions of the order, where necessary for the particular offender and where the offender has demonstrated a willingness to comply. However, the sentencing judge in this case made no error by not making that recommendation for this offender and finding that he lacked the commitment to the necessary drug regimes that could sufficiently reduce his risk to reoffend.”
The appeal was dismissed.