Sentencing Appeal focuses on reoffending potential of aging inmate

Law360 Canada (January 9, 2024, 8:03 AM EST) --

John Hill

It has been said that crime is a young man’s disease, and the only cure is birthdays. What happens when someone approaches 50 and still represents a danger to society? This was the situation confronting the Ontario Court of Appeal in R. v. Bourdon 2024 ONCA 8.

Rene Bourdon had been placed on a long-term supervision order and was accused of breaching the conditions imposed under the order by impersonating another individual to gain proximity to two women that he sexually assaulted. He was tried in Kingston in 2018, and at the conclusion of a lengthy hearing, a dangerous offender designation was imposed, and he was sentenced to an indefinite term of imprisonment (R. v. Bourdon 2018 ONSC 3431).

Defence counsel abandoned a conviction appeal and argued that the sentencing judge at trial misapplied the precepts that have come to be known as the Gladue principles (R. v. Gladue [1999] 1 S.C.R. 688 and expanded in R. v. Ipeelee 2012 SCC 13). The defence submission was that the trial judge erred by requiring a causal connection between his ancestry and the offences for which he was found guilty.

Bourdon had grown up ignorant of his Metis background and learned of it while incarcerated. His association with Indigenous ancestry came to the fore while he was working on a mural project reflecting Aboriginal abuse across Canada at the Quinte Regional Detention Centre over a six-month period. A worker at the jail testified at trial that this work brought into focus why he was incarcerated.

He accepted responsibility for his criminal record. It was then that he disclosed the sexual abuse that he had experienced. His maternal uncle raped Bourdon on three occasions at the age of 6. The attack was so severe that he required surgery to repair the damage. He reported that his uncle also forced him to watch him sexually abuse his sister. The uncle was ultimately convicted and served time in prison. Bourdon also reported that he was sexually abused by an older female teacher when he was 14 years of age.

What seemed to convince the Court of Appeal to uphold the indeterminate sentence was that a forensic psychiatrist, Dr. Jonathan Gray, held the opinion that Bourdon was unlikely to age out of the system. Gray’s analysis in Bourdon differed from his recommendation in R. v. Aragon 2023 ONSC 1943, where he noted that Aragon had spent a long time in prison since his arrest in 2012. Aragon had participated in Correctional Services of Canada programs that addressed his risk factors. He also participated well and put a sustained effort into the programs, resulting in clinical gains.

While he still needed further treatment, he had changed his attitudes and behaviour, suggesting that his risk factors were amenable to treatment. Noting that Aragon was 41 years old, his risk decreased with age. Gray concluded that “overall, it is difficult to see Aragon’s risk of violence as currently very high and inflexible to change both through aging and treatment interventions. There is strong evidence his risk has decreased over the course of his current incarceration and may decrease further with other interventions.”

Although the same comments could be made about Bourdon, Gray relied on statistical models, the Static-99R and the VRAG-R, to assess the risk of Bourdon’s reoffending. In the Static-99R, Bourdon scored at the higher end of the third level of five ascending risk categories for sexual or violent re-offence, putting him at average relative risk. In the VRAG-R, he scored a very high risk of re-offense, eight out of nine being the highest risk. Both of these tools suggested that Bourdon was above average risk for reoffending.

The Court of Appeal held that the trial judge had considered Gladue principles but made them subordinate to public protection, which is the paramount objective in sentencing dangerous offenders (R. v. Boutilier 2017 SCC 64; R. v. Radcliffe 2017 ONCA 176). In this situation, the systemic and background factors were not “tied” to the appellant and the offences. The Ipeelee decision stresses that systemic and background factors must shed light on the offender’s moral blameworthiness. It was Gray's opinion that the fact that Bourdon had been the victim of sexual abuse as a child, even if it was confirmed that he had the symptoms of PTSD, had no clear nexus to his offending as an adult.

It seems that the Ontario Court of Appeal has taken a step back from the restraint objectives set out in Criminal Code s. 718.2(e), requiring that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims should be considered for all offenders and especially Indigenous offenders. Instead of trusting correctional authorities to work toward the appellant’s rehabilitation, the court looked to statistical models to throw away the key.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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