Marc Charbonneau was found to be a dangerous offender by Aitken J. He appealed. He argued that had he been given an 8 year sentence and 10 years of supervision, he would have been 67 and the risk he posed at that age would have been so reduced as to be manageable. The Court of Appeal disagreed; it upheld the dangerous offender designation: 2012 ONCA 282.
In a short ruling, the court held that the expert evidence, viewed most favourably to Charbonneau, established the following:
1. The appellant’s risk of sexually re-offending before he reaches 60 years of age can be reduced to a manageable level if, but only if, he abides by a sex drive-reducing course of medication. However, the appellant has consistently objected to such medication and does not accept the need to take it.
In these circumstances, the sentencing judge was fully justified in concluding that, at least until the appellant is in his sixties, he has to be “in a setting where he does not have access to potential sexual victims”;
2. The appellant’s risk of sexually re-offending after he reaches 60 years of age is likely to be reduced by age and health factors, in particular, by a natural reduction of his sex drive. Nonetheless, a viable system of meaningful external controls would still be required.
There was ample evidentiary foundation for the sentencing judge’s conclusion that the required system of external controls was “realistically unlikely...to bring the risk posed [by the appellant] to a manageable and acceptable level”. For example, the evidence indicated that the appellant has an established and lengthy history of non-compliance with court orders, he lacks community and family supports, he is manipulative and cannot be relied upon for accurate self-reporting, no treatment program will fundamentally change his nature and tendencies and, given his history and strong sex drive, it is likely that he will seek sexual gratification when the opportunity presents itself.
The sentencing judge also rejected the theory that once the proposed period of long-term supervision ended, the appellant’s risk of sexually reoffending due to reduction of his sex drive was negligible. This theory of sexual “burn out” was based primarily on academic literature. The sentencing judge was entitled to reject it based on the evidence of the appellant’s particular sexual characteristics and history, set out above.
3. Finally, even Dr. Dickie, whose risk management assessment most favoured the appellant, acknowledged that the potential for controlling the risk of the appellant reoffending with respect to domestic assaults was far more remote and unlikely to disappear [para 3].
Based on this the court held the finding that even at age 67 he still posed a risk to the community was reasonable and appropriate.