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Docket: |
59468C |
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IN THE SUPREME COURT OF |
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HER MAJESTY THE QUEEN
AGAINST |
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David emlyn akerman |
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REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE HUNTEr |
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Counsel for Crown |
J. Oliphant |
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Counsel for Accused |
J. A. Oman |
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Date and Place of Hearing/Trial: |
July 23, 26, October 23, 24, 26, November 24, 29, 30, December 7, 10–14, 17-20, 2001, January 21–25, February 5–8, April 2–4, April 18 & 19, 2002 |
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THERE IS A PUBLICATION BAN PURSUANT TO SECTION 486(3) OF THE CRIMINAL CODE DIRECTING THAT THE IDENTITY OF A COMPLAINANT OR A WITNESS AND ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF THE COMPLAINANT OR WITNESS SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY. |
I N D E X
Para. No
I. INTRODUCTION [1]
II. THE INDEX OFFENCES [9]
III. PREVIOUS CONVICTIONS [10]
IV. THE UNPROVEN OFFENCES [20]
V. HAS THE CROWN ESTABLISHED THE NECESSARY
CRITERIA SO THAT THE ACCUSED MUST BE
SENTENCED AS A DANGEROUS OFFENDER OR A
LONG-TERM OFFENDER? [80]
VI. HAS THE CROWN ESTABLISHED THAT THE
ACCUSED’S PATTERN OF CONDUCT IS
SUBSTANTIALLY OR PATHOLOGICALLY INTRACTABLE
SUCH THAT IT IS NEITHER CURABLE NOR AT LEAST
EVENTUALLY CONTROLLABLE IN THE COMMUNITY? [94]
(A) Evidence of the Accused While on
Probation from 1991 to 1993
(B) Psychological Evidence
VII. CONCLUSION [119]
VIII. APPENDIX “A”
– REASONS FOR JUDGMENT OF
I. INTRODUCTION
[1] On November 24, 2000 I convicted Mr. Akerman of the following offences pursuant to the Criminal Code, R.S.C. 1985, c. C-46:
COUNT 1: between the 1st day of September, 1996, and the 4th day of September, 1998, at or near Kamloops, in the Province of British Columbia, did sexually assault LG, contrary to Section 271 of the Criminal Code,
COUNT 2: between the 1st day of September, 1996, and the 4th day of September 1998, at or near Kamloops, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body, the body of LG, a person under the age of fourteen years, contrary to Section 151 of the Criminal Code,
COUNT 3: between the 1st day of April, 1997, and the 31st day of August, 1997, at or near Kamloops, in the Province of British Columbia, did sexually assault CS, contrary to Section 271 of the Criminal Code,
COUNT 4: between the 1st day of April, 1997, and the 31st day of August, 1997, at or near Kamloops, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body, the body of CS, a person under the age of fourteen years, contrary to Section 151 of the Criminal Code,
COUNT 5: between the 1st day of April, 1997, and the 31st day of August, 1997, at or near Kamloops, in the Province of British Columbia, did, for a sexual purpose, invite, counsel or incite CS, a person under the age of fourteen years, to touch, directly or indirectly, with a part of her body, the body of David Emlyn Akerman, contrary to Section 152 of the Criminal Code,
COUNT 6: between the 1st day of September, 1996, and the 4th day of September, 1998, at or near Kamloops, in the Province of British Colombia, did, for a sexual purpose, invite, counsel or incite LG, a person under the age of fourteen years, to touch, directly or indirectly, with a part of her body, the body of David Akerman, contrary to Section 152 of the Criminal Code.
[2] On February 7, 2001 and before sentencing proceedings were to commence concerning these convictions and upon the Crown’s application under s. 752.1(1) of the Criminal Code I made an order remanding the accused to the Director of Clinical Services, Forensic Psychiatric Services for assessment.
[3] In response to my order made under s. 752.1(1), the psychological report of Dr. Eric Kuelker dated March 23, 2001 was provided to the court expressing the opinion that the evidence of the accused’s criminality met the threshold test in s. 752.1(1).
[4] The Attorney General for British Columbia has consented to this application. On July 23, 2001 the dangerous offender proceedings contemplated by s. 753.1(1) commenced with the calling of witnesses by the Crown. The Crown submits that the accused has committed a number of “serious personal injury offences” upon several females between the ages of four and fourteen years over a time-span approximating 30 years. The accused was born February 13, 1938 and is now 64 years of age.
[5] The Crown called 24 witnesses in these dangerous offender proceedings. Eight of these witnesses said that the accused had sexually assaulted them on different occasions over the years (the unproven offences). The Crown also led evidence of the conviction of the accused in February 1991 concerning AD on one count of sexual touching of a person under the age of 14 years and one count of, for a sexual purpose, inviting a person under the age of 14 years to touch a part of his body.
[6] I intend to review the evidence with regard to the allegations of each of the eight complainants of the unproven offences and with regard to the allegation of the conviction of the accused in February 1991. The onus of proof lies upon the Crown to prove the allegations of each of these complainants beyond a reasonable doubt.
[7] Counsel for the accused concedes that if the allegations against the accused are proven, then the accused is a pedophile with a sexual attraction to females and further concedes that pedophiles are not curable. The court- appointed psychologist, Dr. Kuelker, and the defence psychologist, Dr. Haymond, both agree with these propositions.
[8] The Crown must satisfy the court beyond a reasonable doubt that the accused is a dangerous offender. The Crown seeks this declaration under s. 753(1)(a)(i) and (ii) or (b).
II. THE INDEX OFFENCES
[9] The index offences are six counts in an indictment on which I found the accused guilty on all counts on November 24, 2000. The accused was convicted, on that indictment, of the sexual assault, touching for a sexual purpose and inviting the touching for a sexual purpose involving LG between September 1996 and September 1998 and of similar offences concerning CS between April 1997 and August 31, 1997. Rather than try to summarize my reasons in convicting the accused, I am incorporating into these reasons for judgment a transcript of my oral reasons for judgment convicting the accused on November 24, 2000. They are Appendix “A” to this judgment.
III. PREVIOUS CONVICTIONS
[10] The Crown seeks to rely upon the alleged conviction of the accused of the offence of sexual touching of AD – the conviction date was late February 1991. AD is the accused’s niece. She did not give evidence in these sentencing proceedings. There is no record of the reasons for judgment leading to his conviction but there is a transcript of the reasons for judgment in sentencing which took place on February 27, 1991 - a few days after he was found guilty. There is also a transcript of ADs’ examination-in-chief and cross-examination at trial but not of the remainder of the evidence.
[11] Certain portions of the reasons for judgment in sentencing are informative as to the circumstances and commence on p. 2 at line 3 of those reasons:
As a sexual act, it seems to me it was a very minimal one but repeated four or five times. The evidence is not clear, but except for one occasion, what you did was to lower your pants and lower your underwear and invite the child to touch your private parts, and of course a child at that age obeyed you. The child feels very guilty that she did not obey you when you asked her not to tell, and she is visited with guilt feelings. It is thoroughly inappropriate that she feel guilty, because that is all part of what you did to her.
There is only one occasion on which you touched her vagina. I think perhaps more than touched her vagina, from the evidence, but you did not go any further than that; mercifully you didn’t. You went far enough.
The charges for which you were convicted are under Section 151, for sexual purposes touching, directly or indirectly, with a part of her body, and for a sexual purpose inviting her, the child, to touch part of your body. There wasn’t any violence, there wasn’t anything in the way of a sexual act really worthy of the name, just this ridiculous event that I have already described.
[12] Concerning this alleged offence against AD, the accused was sentenced on February 27, 1991 to a term of imprisonment of nine months with a period of probation of two years to follow the completion of that sentence.
[13] The complainant’s name does not appear in the sentencing reasons for judgment of McKenzie J.. A transcript of her evidence at that trial, marked as an exhibit in the proceedings before me, discloses that the trial judge was the same McKenzie J. and describes the complainant, the same Kamloops court registry action number and the same counsel for Crown and defence. The date this evidence was given is shown as February 21, 1991 - six days before the date shown on the sentencing reasons for judgment.
[14] Section 723(5) of the Criminal Code provides that “Hearsay evidence is admissible at sentencing proceedings.”
Section 724(1) of the Criminal Code provides:
724.(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentence proceedings.
[15] In R. v. Gardiner, [1982] 2 S.C.R. 368 at 414, Dickson J. (as he then was) set out the evidentiary context of sentencing hearings:
One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.
It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime.
[16] All credible and trustworthy evidence is admissible at a sentencing hearing (see R. v. Albright, [1987] 2 S.C.R. 383).
[17] With regard to the issue of proof of identity, the Nova Scotia Supreme Court said in R. ex. rel. Murray v. Streatch (1950), 99 C.C.C. 60 at 67:
...Proof of identity does not mean conclusive proof, but means such evidence as will entitle a Court to find that the identity is proved. The Court may act upon identity of name and address as evidence of the identity of the offender: Martin v. White, [1910] 1 K.B. 665.
If there is a reasonable presumption of identity it would seem to be proper to require the accused to rebut that presumption, and not to be allowed to shield behind the expressions that he ‘stands mute of malice’, and ‘will not answer directly to such question’.
[18] Following Albright, I have concluded that the sentencing reasons for judgment and the transcript of the complainant’s evidence constitutes proof of previous conviction on the basis that it is credible and trustworthy evidence. Although the accused did not give evidence in the sentencing proceedings in 1991 and, in fact, the only evidence called on behalf of the accused in the sentencing proceedings before me was that of the psychologist, Dr. Haymond, the evidence of the complainant describes the accused as her uncle. The name of the accused is the same in those proceedings as in the matter before me. MG, the mother of the accused’s wife, GA, describes AD as one of her grandchildren, whose mother is S, a sister of GA. One of the complainants of the unproven offences, CD, who is a daughter of GA and the accused said in evidence before me that AD is her cousin.
[19] I am satisfied beyond a reasonable doubt, that the accused is the person who was convicted of sexual assault and sentenced by McKenzie J. in late February 1991.
IV. THE UNPROVEN OFFENCES
[20] One of the complainants, CD, was born on September 3, 1985 and was 16 years of age at the time she gave evidence in this court. The accused is her father. Her mother, GA, is the wife of the accused. Her recollection was that when she was between three and four years of age, she and her mother and father shared a bedroom in her grandmother’s home. Her parents slept in one bed and she slept in another. She recalls that she was asleep in bed one night, that something woke her, it was her father calling her name and asking her to come over to his bed and “play house”. She recalls that she went to his bed and that he took off her nightgown, that she was on top of him and that he rubbed her chest and then asked her to touch his genital area which she did. That was all she remembered. After that she was taken away from the house by the police. She thinks that she was about six years of age when she went to live with her aunt and uncle in Saskatchewan where she continues to reside. At the time of giving evidence she had not seen the accused, her father, since she was five years of age. She does not recall talking to the police about this incident but says that she was interviewed by a social worker about it. She thought she was then about five years of age although she was not sure. In a statement to Constable Bells in July 1990, a short while later, she recanted and said that her father had not touched her in that manner. While I believe CD was making a real effort to truthfully relate the circumstances, I cannot in all of the circumstances be satisfied that this allegation has been proven beyond a reasonable doubt.
[21] With regard to the other unproven offences, I intend to refer to the evidence of the complainants and others in a chronological fashion.
[22] Chronologically, the circumstances described by LJ occur first. She was born November 3, 1952. She is a sister of BD and LP. I note that she was the oldest of six children. She was not with her sisters during any of the incidents that they described. She said that she would play on the grounds of Bert Edwards School directly across the street from the accused’s home. On several occasions she observed the accused standing in his living room window with his pants down and his hands in the area of his penis. She also described an incident around sunset time when she was crossing the schoolyard and walking past a corner of the school building. The accused was standing there and put his arm around her shoulder and said he wanted to talk to her and was not going to hurt her. She said she pushed away from him and ran away. She felt confident that this was the same person that she had observed with his pants down and in the window of the accused’s house.
[23] LJ was never in the accused’s home. While it is likely that it was the accused whom she observed standing at the living room window, I am left with a reasonable doubt that such was the case. The incident which she describes as occurring at the corner of the school building, occurring as quickly as it did and so long ago, is also of concern and I have concluded that I have a reasonable doubt as to identification of the accused regarding that matter.
[24] LP was born January 30, 1957 and is now 44 years of age. She lives in Kamloops and is the sister of LJ and BD. In the proceedings before me she identified the accused and remembers when she was about 8 years of age being in the backyard of the accused’s home swinging on the swings with her best friend, AM. She recalls also being inside the accused’s home and that it was summer time. She said the accused went into a bedroom, took off his pants and asked if they would play with him. Her sister, B, and AM were with her. She recalled the accused saying something like “Would it help if he put a sheet over it.” She said the accused then grabbed AM’s hand. She said that AM pulled her hand away and the accused then grabbed her and started “rubbing my body on his body, up and down”. She described herself as screaming and fighting to get away. She was able to do so and she, B and AM got out of the house. She also recalled that the accused offered them money for doing that. She said she has been trying to put this event out of her mind for 35 years.
[25] LP told of another occasion when the accused offered her and AM money if “you will rub me to the end.” She said she did not then know what that meant.
[26] LP said that she never told anyone about these incidents because she thought she would get into trouble with her parents for being in someone’s house without their knowledge. She stated that she had never had any counseling of any kind, nor talked to a medical doctor about these incidents. One day, she noticed a report in the local newspaper about the criminal trial of the accused in late 2000 on allegations of sexual abuse, and she said that this brought back these memories. She said that her friend, AM, now lived in Australia and that they were not in contact.
[27] Crown counsel made arrangements with AM to give evidence from Australia by video link. On the morning that this testimony was to be taken, AM advised Crown counsel that she had decided not to give evidence in these proceedings.
[28] I found LP to be a credible witness. My sense is that she bore no ill-will towards the accused and had no motive for fabricating these allegations, nor did she discuss these events with others before giving evidence, other than to remark to her sister, B, that she had read in the newspaper about the allegations against the accused in the criminal trial in 2000.
[29] BD was born on January 6, 1955 and is a sister of LP and LJ. She described the accused as a neighbour who lives across from the school playground on York Street. She recalls being in the accused’s house on at least one occasion and probably more often. She recalls the accused inviting her, her sister, LP, and her friend, AM, into his bedroom, taking down his pants and masturbating himself. He tried to get them to help him masturbate. His penis was erect. He grabbed the sheet and placed that over his penis.
[30] BD recalls the accused, at the time of that incident, saying things like “Come on, its okay, you can do it, your sisters are doing it”. He then grabbed her hand and rubbed it on his penis. They were struggling to get away. He said, “If you tell anyone, I am phoning the cops”. She was screaming and struggling and he let her go. She left the house.
[31] BD denied having discussed these incidents with her parents, saying that “stuff like that is not talked about in our house and I did not know what my Mom might do”. The first time she talked in detail about these incidents was to Constable Prefontaine in August 2000. Before that date she said she talked to no one regarding those details although she had talked to her sister, L, and friend, AM, about the accused and his family in a general way and had concluded that he was a pervert. She recalled telling her mother when she was in her twenties that they knew when they were children that the accused was a pervert but gave her no details. She had never taken any counseling with regard to these incidents. This topic did not come up again until she was telephoned by her sister, L, and was told of what L had read in the newspaper about the allegations against the accused in the criminal trial. She did recall that approximately ten years before, she and AM had talked about these incidents and attempted to determine when they had taken place.
[32] I am satisfied beyond a reasonable doubt that the sexual misconduct of the accused described by LP and BD took place.
[33] I turn now to the evidence of DM. She was born on January 2, 1962, and is, therefore, 40 years of age. In considering the allegations that she makes, I have also considered the evidence of her mother, ST (whose last name was P) and her mother’s cousin, RF. RF is a former wife of the accused. As well, I have considered the evidence of LH, a cousin of DM. LH is a daughter of EN, who is a sister of DM’s mother, ST.
[34] DM said that when she was a child the accused and his then wife, RF, would on occasion visit at her parent’s home in Coquitlam. As I mentioned above, her mother is ST who is now divorced from her father, JP. DM recalls sexual misconduct by the accused starting from when she was five years of age and said that the last such incident occurred when she was in grade five.
[35] DM said that there were many occasions when the accused took her to a small room in the downstairs area of her home in Coquitlam. His pants would be down and he would put his hands down her pants, rub her vagina with his hands, and tell her not to tell anyone. He said “that I should be good, that my parents would be angry if I said anything”. On other occasions, he would stand behind her and rub himself against her back. He would close the door to the room that they were in. Her family was often home during these incidents. DM said that it did not appear that the accused wore underpants. He made her touch his penis and sometimes she felt it on her back – it was not always erect. She recalled one incident in the family room downstairs. There were several children present and they were watching television. The accused came into the room and sat down beside her. He placed a newspaper over his lap and took her hand and shoved it down his pants and made her hold his penis. He had an erection. She remembers that type of incident occurring only once.
[36] DM described another incident occurring on the “landing”, which was just inside the front door and was the cathedral entrance to the house. She was vacuuming. Her mother had told her to do this vacuuming while she and RF were away shopping. The accused came up behind her and put his hands down into her pants and rubbed himself against her backside. His pants were then down around his ankles. Everything was exposed. No one else was in the house.
[37] On another occasion DM was in her bedroom sleeping in a sleeping bag on the floor. Other children were sleeping in the room as well. It was early morning and the accused came in and put his hands down into her sleeping bag, trying to grab her vagina. She bit his arm with some force and he left the room.
[38] DM said that for most of these incidents the accused would say to her, “Come here” and talk sweetly. He would also say, “It’s okay” or “Don’t say anything” or “Your parents will be mad” or “Just listen to me and be quiet”. She thought he was trying to get her to enjoy it. She told him she did not want to do these things.
[39] DM also said that he would often say to her, “Don’t say one word, I could kill your parents”. She believed everything that big people told her at that time, so she never said anything to anybody.
[40] DM said there were occasions where the accused would stand at the top of the stairs in her home with his pants down, rubbing himself and saying something like “Come on – it’s a good thing.” Often, in an attempt to avoid the accused, she would be sure that she was with her younger brother, D, who was an infant at the time. While DM could not be specific about the dates of these incidents, she said that they occurred when she was between the ages of five and nine.
[41] DM made no mention of these events until she was about 12 years of age. She then told a good friend who was approximately her age. Upon hearing this, her friend made her promise to tell her mother immediately. She did so. She could not recall exactly what she told her mother, but she thought she said something like “Why is that guy here – I don’t like him – he wasn’t very nice to me – he touched me and made me touch him.” She said her mother must have misunderstood her because she did nothing about it. She assumed that her mother would tell her father, but when she was about 20 years of age she learned that her father had not been told. She described herself as an angry teenager who experimented with drugs and alcohol. She had thought her parents did not believe what she had told her mother about the accused’s conduct.
[42] In cross-examination of DM defence counsel suggested that there was a discrepancy in her evidence in that she would have the court believe that these incidents with the accused occurred when no one else was present, and yet she also told the court of the incident in the television room where other children were present. I see no discrepancy in that evidence. I am satisfied that she is simply referring to different events.
[43] It was also suggested by the defence that DM did not have an independent recollection of the incident in the television room; rather, she was simply repeating to the court what she had been told by her cousin, LH, who said she was in the room at the time of that incident. I accept the explanation of DM in that regard.
[44] It was also suggested by the defence in cross-examination that what she told her mother when she was aged 12 was a fabrication. Her response was that she was a 12-year-old child trying to explain something to her mother which she did not really understand but had the feeling at the time that surely her mother would understand the significance of what she was saying.
[45] Also, in cross-examination of DM the defence sought to obtain her concession that upon being told by her own 15-year-old daughter of sexual misconduct toward her by a third party that DM developed false recollections of the accused’s sexual misconduct toward herself. She denied this. DM told the police that her recollection of the accused’s conduct was “triggered” by her daughter’s disclosure. I accept her explanation that her daughter’s disclosure brought back these memories of the incidents involving the accused. I do not accept the proposition that these were false recollections.
[46] DM agreed that she was involved in therapy sessions as a teenager, perhaps in grade nine, when she sought help from a high school counselor. After her daughter’s disclosure, to which I have already referred, she sought help from the minister of her church. This minister was a woman and she had no idea what her qualifications were. She agreed that memories came back with regard to these events with the accused as a result of this counseling. She denied any hypnosis procedures by the counselors and said she never discussed with them her inability to trust men. She separated from her husband not long after her daughter told her of the sexual misconduct she suffered at the hands of a third party. Her husband did not believe what their daughter had told them. After separation, she received counseling from a therapist in Kelowna by the name of Linda Hamm. She denied any attempts by the therapist to suggest appropriate memories of the accused’s conduct. She told the court that she now could not trust men and believed that this was caused by the accused’s sexual advances. I accept her evidence and am satisfied that the Crown has proved beyond a reasonable doubt the sexual misconduct of the accused as described by her.
[47] LH was born November 17, 1960 and was, therefore, 41 years of age when she testified. She is married with two daughters and a stepdaughter aged seven, nine and 13 years respectively. She is a cousin of DM. ST(P) is her aunt. She knew the accused when he was married to RF. As a child, she lived in Surrey and visited DM and her parents in Coquitlam on occasion. She saw the accused in that home. She described an incident when she was seven years of age which took place in the downstairs area of the P home in Coquitlam. Her sister sent her to the basement to get something from the freezer. She said the accused was at the doorway to the storage room where the freezer was located and called her into the room. He closed the door and undid his pants to his knees. He grabbed her hand to touch his genital area but she pulled back. He told her, “If you tell anyone, I’ll kill you – if I come upstairs and look in your eyes and you have told anyone”. She left the room and ran upstairs. She said he had grabbed her arm but that she did not touch his genital area. I accept LH’s evidence concerning this incident.
[48] The following winter when LH was eight or nine years of age she described being in the T.V. room downstairs in the P residence with DM and her brother, C. There were two couches in that room. The accused was sitting on one. They were watching a television movie. The accused had walked in and sat down on the couch with DM. LH saw the accused take a newspaper off the coffee table and place it on his lap. He then took DM’s hand and placed it on his genital area under the newspaper. She said that she and DM looked at each other and that she, LH, was petrified. The accused then got up and left. The evidence of LH is unclear as to whether she is simply adopting what DM told her on the telephone approximately 30 years later or whether she has an independent recollection of that event, and so I have disregarded LH’s evidence on the incident in the T.V. room of the P residence.
[49] In cross-examination LH said “the accused is the bogeyman I have lived with for 30 years and I want to give evidence so he can’t hurt anyone else again.” She agreed that she had been to several counselors over the years for a variety of reasons. She agreed also that she had taken counselling at Royal Columbia Hospital with regard to unidentified fears and that those fears had impacted her life and she was unable to resolve some of them. She agreed she sought certain other counselling from psychiatrists and psychologists. She denied discussing her memory or her ability to remember with psychologists or counsellors – she said it was only a general conversation concerning fears and her childhood. I have considered all of these circumstances in concluding that I accept LH’s evidence and I am satisfied beyond a reasonable doubt that the accused is guilty of sexually assaulting her in the manner she describes and as I have related it.
[50] RF is 59 years of age, having been born on February 15, 1942, and is a former wife of the accused. She is four years younger than the accused. She married him in November 1961 and they separated ten and a half years later and were divorced in 1977. They had two sons, S, born June 17, 1962, and J, born January 23, 1969. Ms. F and the accused met in Vernon. He was then 23 and she was 19. They lived together in Vernon for three years or so and then moved to Kamloops. She identified the York Street house in North Kamloops as one of the homes they resided in during their marriage. She and the accused visited back and forth with S and JP in Coquitlam. On occasion they stayed overnight in the P’s residence and S and J’s daughter, DM, and DM’s brother, C, were there. Her recollection was that C was three to five years of age at the time and DM was five to eight years of age. She said JP was a truck driver and was often out of town as part of his employment. She and ST would on occasion go shopping or play bingo and leave the children with the accused. She had never seen anything of a sexual nature between the accused and any children during their ten-year marriage.
[51] ST (P) also described the visits of the accused and RF to the P home in Coquitlam and later in Surrey and of visits by the Ps to the homes occupied by the accused and RF in Kamloops. The Ps had in fact lived in Kamloops for two to three years in the mid 1960’s.
[52] ST said that the accused and RF visited three or four times a year and she recalled that the accused would babysit her three children, DM, C and D, on occasion while she and RF went shopping, bowling, or to bingo. Her recollection was that on some occasions when the accused was babysitting her husband was away driving his truck. She recalled nothing unusual between the accused and DM, but she did recall that after these visits DM had said she did not want to stay in the home with the accused when she and RF were not there. She thought DM was seven or eight years of age at that time. DM gave her no reason for not wanting to stay in her home with the accused.
[53] She recalled one occasion when the accused and RF were at the P home as were her children, DM, C and D and LH. She thought DM was approximately ten years of age at that time. She recalled as well an argument she had with her daughter about that time. She had asked DM to do something, DM refused, and they became angry with each other. DM then told her certain things of a sexual nature which the accused had done to DM. I mention this not as further evidence of the accused’s sexual misconduct toward DM; rather to put into context DM’s concern that her mother, ST, did not appear to have been concerned about her allegations regarding the accused’s conduct. ST said that she never did anything about that and has felt guilty about it since.
[54] Sometime after that, the Ps separated and divorced as did the accused and RF, and obviously the couples did not continue to get together.
[55] The next time ST and DM discussed the accused with regard to the sexual allegations was, in her recollection, when DM was in her mid-twenties.
[56] I turn now to allegations of sexual misconduct made by TJ. Her allegations arise between 1974 and 1981 when she was between six and 13 years of age. She was born May 31, 1968 and is the daughter of LC. She was born prior to LC meeting and marrying the accused. LC was the accused’s second wife. TJ is now 33 years of age, is married and has two daughters aged ten and six years. She recalls that her mother went to live with the accused, as did she, in 1974 when she was in grade one and that she continued to live with her mother and the accused until they separated in August 1981, at which time she and her mother moved to Vancouver.
[57] TJ describes a series of incidents of sexual misconduct which escalate in nature, seriousness, and frequency as the years go by, and continue even beyond TJ’s departure to Vancouver with her mother in August 1981.
[58] TJ’s first recollection occurred when she was in grade one in their home in the Sahali residential area in Kamloops. She and the accused were on the top floor landing of their home. He put her on the floor with a pillow behind her head and he was on top of her with his pants down rubbing his penis against her vagina until he ejaculated. She recalls that her pants were down. This occurred many times at this location. Her mother was not home – she was usually away working.
[59] On other occasions the accused tucked her into bed and when doing so his hands went under the comforter and he fondled her vagina. At other times in the bathtub he would wash her private parts. She recalls she was then six years of age. She said that generally there was someone with her when she had a bath, either her mother or the accused. On these occasions her mother was not present. Her mother did not wash her private parts. She could not estimate how often these bathroom experiences occurred other than that they were frequent at this early stage.
[60] She described other times when he would “tuck her in” to bed and fondle her. This happened frequently. She could not estimate how often. Her mother would come into her bedroom and say goodnight and shortly after that the accused came in. He fondled her vagina – there was never any digital penetration.
[61] When she was in grade two they moved to a residence on Nicola Street in Kamloops. On occasion at that location the accused would come to her bed, take down her panties, fondle her, take her hand and put it on his penis and masturbate until he ejaculated. Then he pulled up her panties and got out of the bed. She described this as a “regular occurrence”, always being in the morning and never in the evening. She said her mother would be working at the time at the police station. When this occurred, the accused was naked and she was wearing either a nightgown or pajamas and underwear. After the accused ejaculated he would clean himself up, usually with a towel.
[62] On other occasions she described the accused calling her to the basement and his workshop. On those occasions he would have her masturbate him. She would tell him that she did not want to do this or that she did not like to do this, or she would say that someone is going to be home, to which he would respond that “its okay, no one is coming, don’t worry”. These incidents in the workshop area and her bedroom occurred approximately once a week alternating between her bedroom and the workshop area.
[63] The family later moved to a residence on Nelson Street on the north shore in Kamloops. TJ was then in grade three or four and would come home from school in the afternoon. The accused’s truck would be in the driveway. He would meet her at the door and take her to the living room area. The accused had pillows arranged on the couch. He closed the curtains and sat on the couch. He directed her to lie across the couch, with a pillow under her hips and her legs across his lap. He took down her pants and underclothes. He had an erection. He rubbed himself against her vagina until he ejaculated into his hand. She described this as a “ritual” of his which occurred weekly or every other week, usually after school. Her mother was always at work. TJ did not know where his sons, J and S, were. They were living with them.
[64] TJ described other sexual assaults which occurred in the downstairs area of the house and also in the accused’s truck while they were going to the garbage dump.
[65] The family then moved to Popp Street in Brocklehurst in Kamloops. TJ described the accused trying to put his penis in her mouth while she was sleeping on the couch. He tried this “a few times”. When unsuccessful, he would “stomp off”. On occasion he used, on himself, a “small round pink vibrator”. He sometimes fondled her with it while she was in her bed sleeping.
[66] TJ described one final incident which occurred in the year she and her mother moved from the accused’s residence to Vancouver. Shortly after that move – she thinks it was in late August - she returned to Kamloops on a weekend to visit friends, but stayed at the accused’s house. She was 14 years of age. She said she was “terribly homesick” to see her school friends. She described what happened in the accused’s home after she had been out with friends on either the Friday or Saturday night of that weekend. She said she had returned to his house after being out with her friends. All the house lights were out. The accused was in the living room. He undressed, told her to lie on the floor and laid on top of her. He said he wanted to “take my virginity and for me to let him know”. She said he rubbed himself against her vagina and ejaculated. She said he then cleaned up and she went to her room. She never saw him again.
[67] She told of her good friend, MM, and that she had never observed the accused to attempt anything of a sexual nature with MM.
[68] TJ said that the accused provided alcohol and/or drugs to her on occasion. She remembers marijuana cigarettes when she was in grade seven and the provision of alcohol by the accused for her and MM on other occasions.
[69] She described the accused as very manipulative. If she said “no” to his advances, then he and her mother would have a “big argument” later that day or the next day. He told her he was “trying to be a good husband to my mother and it was my job to help”. She said she tried as often as she could to say “no” to him. If she said “no” and did not participate, he would grab her arms and shake her, or kick the dog, or be nasty to his sons, or get into a serious verbal argument with her mother.
[70] TJ did not tell her mother of these sexual assaults because “I was afraid for her.” The first person TJ told about the accused’s sexual misconduct was a male classmate while she was in grade ten. That person immediately told her mother. TJ was reluctant to go to the police, she did not want anything to happen, she just wanted this matter to be put behind her. She gave a statement to Constable Prefontaine in March 2001. She first heard about the trial which ended in November 2000 when her Aunt M showed her an article from the local newspaper concerning the trial.
[71] Despite the fact that TJ did not tell her mother of the accused’s conduct until after they moved to Vancouver, that she stayed at the accused’s residence one weekend after she and her mother had moved to Vancouver and her reluctance to report this matter to the police, TJ impressed me as a credible witness. She appeared to bear no ill-will toward the accused and had no motive to fabricate allegations against him.
[72] I am satisfied beyond a reasonable doubt that the accused committed these acts of sexual misconduct upon TJ and that this was done in a premeditated fashion, often while he knew her mother would be absent at work and often in a planned and deliberate way in the sense of anticipating the best time to do so, including the regularity of such incidents taking place in her bedroom, the workshop and the living room of their house. The incidents which TJ describes as having taken place in the living room area showed clear evidence of his having planned the events. The accused sexually assaulted her on a regular basis and in an increasingly more serious way over this period of time running from 1974 to 1981.
[73] In addition to TJ’s evidence, I have considered and accept the evidence of her mother, LC, of a conversation she had with the accused, after her move to Vancouver with TJ, in which he admitted having sexual contact with TJ and said that he had done so because she was not available.
[74] TJ’s friend, MM, was born February 29, 1968 and is, therefore, 33 years of age. She is married and has one son. She lived in Kamloops from grade three until three or four years ago. She met TJ in grade six at an elementary school in Kamloops. She said the accused touched her regularly, patting her on the behind and once in a while feeling her breasts. For example, she remembered him patting “my bum” as I walked up the stairs at his house. She was then in grade six or seven. On occasions when she was getting in or out of the car he would raise his hand and brush it against her breasts. She said this happened frequently when she, TJ, and TJ’s mother and the accused were going into the accused’s house.
[75] After TJ moved with her mother to Vancouver, the accused would offer to drive MM to Vancouver for the weekend to visit TJ. She recalls one occasion where he let her drive his pickup truck, even though she did not have a license. On that occasion, while she was driving, he placed his hand on her knee and then moved his hand further up her leg. She told him that if he did not stop this that she would stop the car and scream. She said that although he had moved his hand up her leg above her knee he did not touch her genital area. After she told him to stop, she described him as moving over to the far side of the vehicle and being angry.
[76] On another occasion she was sitting in the living room of the accused’s home and TJ and her mother were in the kitchen. The accused walked down the hall naked and was masturbating, he had a big smile on his face and she said they made eye contact.
[77] MM says that the accused started her and TJ on alcohol and introduced them to marijuana. He gave her beer to drink when they were driving to Vancouver.
[78] In summary, I find that the Crown has proved beyond a reasonable doubt the guilt of the accused of the sexual assaults, sexual touching or invitation to sexual touching of six of the complainants, namely: LP, BD, DM, LH, TJ and MM. It was my impression that each of these complainants was a credible witness and had no motive for fabricating their evidence. Each gave evidence in a forthright manner and each was responsive to the questions asked.
[79] In reaching this conclusion, I am mindful of the fact that each of these witnesses, now all adults, were children when the events about which they testified occurred and that the credibility of each should be assessed according to criteria applicable to each as an adult witness. As McLachlin J. (as she then was) stated in R. v. W.(R.), [1992] 2 S.C.R. 122 at 134:
...In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
V. HAS THE CROWN ESTABLISHED THE NECESSARY CRITERIA SO THAT THE ACCUSED MUST BE SENTENCED EITHER AS A DANGEROUS OFFENDER OR A LONG-TERM OFFENDER?
[80] The relevant provisions of the Criminal Code in determining whether the offences and conduct of the accused meet the necessary preliminary criteria so that he must be sentenced either as a dangerous offender or as a long-term offender are as follows:
753.(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
...
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[81] If found to be a dangerous offender, s. 753(4)reads:
(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period.
[82] If I conclude that the offender is not a dangerous offender, then I must consider s. 753(5) which provides:
753(5) If the court does not find an offender to be a dangerous offender,
(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or
(b) the court may impose sentence for the offence for which the offender has been convicted.
[83] Section 753(6) provides:
Any evidence given during the hearing of an application made under subsection (1) by a victim of an offense for which the offender was convicted is deemed also to have been given during any hearing under paragraph (5)(a) held with respect to the offender.
[84] Section 753.1(1) applies to the issue of whether an offender is a long-term offender.
753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
(3) Subject to subsections (3.1), (4 and 5), if the court finds an offender to be a long-term offender, it shall
(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and
(b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.
...
(5) If the offender commits another offence while required to be supervised by an order made under paragraph (3)(b), and is thereby found to be a long-term offender, the periods of supervision to which the offender is subject at any particular time must not total more than ten years.
(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.
[85] I have concluded that the answer is in the affirmative – the Crown has proven beyond a reasonable doubt that Mr. Akerman meets the criteria set out in ss. 753 and 753.1.
[86] The circumstances of the index offences and the offences which I have concluded have been proven are “serious personal injury offences” as defined in ss. 752 (a)(ii) and (b). I am referring to the six counts on which the accused was convicted in November 2000 which involved the complainants, LG and CS, and the evidence of the other six complainants to which I have just referred and the circumstances resulting in the conviction of February 1991. All of this establishes that Mr. Akerman constitutes a threat to the life, safety or physical or mental well-being of other persons based on the criteria set forth in ss. 753(1)(a)(i) and (ii) and (b).
[87] With regard to the long-term offender considerations under s. 753.1 the evidence establishes that the appropriate sentence for the index offences requires a term of imprisonment well beyond the minimum of two years required by s. 753.1(1)(a) of the Criminal Code. It also satisfies the statutory requirement of s. 753.1(1)(b) with the issue remaining under s. 753.1(1)(c) of whether, “there is a reasonable possibility of eventual control of the risk in the community”.
[88] In R. v. Johnson (2001), 158 C.C.C. (3d) 155, 2001 BCCA 456, the court considered the relationship between the dangerous offender and long-term offender provisions of the Criminal Code arising from amendments in 1997.
[89] Ryan J.A. distinguished between the long-term and dangerous offender provisions of the Criminal Code in paras. 93 and 94 of Johnson and I quote:
As I read them, what distinguishes the long-term offender provisions from the dangerous offender provisions is the absence of the requirement that the pattern or conduct of the offender be substantially or pathologically intractable, and that if the offender has any treatable condition it will be of such a kind that it must be, if not curable, at least eventually controllable in the community.
Thus the long-term offender provisions may apply to an offender who does not meet the dangerous offender criteria because his or her pattern of conduct is not so intractable that it will not eventually be controllable in the community within the time frame established by a fixed sentence accompanied by a 10-year period of probation.
[90] I have already stated that I am satisfied on the evidence, beyond a reasonable doubt, that the accused must be found to be either a dangerous offender or a long-term offender. Therefore, the most significant issue before me is whether the evidence establishes that the accused’s pattern of behavior is so substantially or pathologically intractable or so untreatable that he will not eventually be controllable in the community (see R. v. Johnson and R. v. Lyons [1987], 2 S.C.R. 309 at 338).
[91] If the evidence establishes a reasonable possibility of eventual control in the community then the accused must be found to be a long-term offender and the appropriate fixed term sentence and long-term supervision order must be determined for his cure or treatment and his eventual control in the community.
[92] The task for the court at this point is set out succinctly by Davies J. in R. v. Merrick, 2002 BCSC 775 at para. 34:
Accordingly, the central question which must be determined in this case is whether the evidence also establishes that Mr. Merrick’s pattern of behaviour is so substantially or pathologically intractable or so untreatable that he will not eventually be controllable in the community. If so, Mr. Merrick must be declared a dangerous offender. On the other hand, if the evidence establishes a reasonable possibility of control in the community, Mr. Merrick must be determined to be a long-term offender and the appropriate fixed term sentence and long-term supervision order necessary for his cure or treatment and his eventual control in the community must then be considered.
[93] To address these issues I must examine the psychological evidence concerning Mr. Akerman including that of Dr. Kuelker, the psychologist who conducted the court-ordered assessment, Dr. Haymond, the psychologist retained by the defence, and Dr. Smiley of Corrections Canada. Before doing so, I will refer to evidence of the accused’s conduct while on probation following the 1991 conviction.
VI. HAS THE CROWN ESTABLISHED THAT THE ACCUSED’S PATTERN OF CONDUCT IS SUBSTANTIALLY OR PATHOLOGICALLY INTRACTABLE SUCH THAT IT IS NEITHER CURABLE NOR AT LEAST EVENTUALLY CONTROLLABLE IN THE COMMUNITY?
(A) Evidence of Conduct of the Accused while on Probation from 1991 to 1993
[94] Dr. Madrygga in 1991 assessed the accused for treatment purposes in the sex offender program, which is part of the Kamloops office of the Forensic Psychiatric Institute of B.C.. His file with this office could not be located when he was contacted by the police in preparation for the sentencing proceedings but he did have his clinical notes. He did not have an independent recollection of the accused.
[95] While Dr. Madrygga’s notes suggest that the accused co-operated with reference to tests that Dr. Madrygga conducted of him, Dr. Madrygga described the accused as angry with an abusive demeanour. He said this is a common reaction by adult sex offenders in denial. Dr. Madrygga saw the accused on only five occasions between September 24 and December 17, 1991 at which time Dr. Madrygga was hospitalized and his caseload was transferred to others. He agreed that the accused attended all appointments except for the first one, the reason for which Dr. Madrygga could not recall.
[96] The accused reported to the probation officer, Glen Cowley, while on probation between September 1991 and March 1992. Mr. Cowley said the accused denied being a sex offender and complained about the conditions of probation. However, he met the probation conditions of reporting and there were no breaches.
[97] The accused reported to another probation officer, Ed Andrews, between October 1992 and August 1993. Mr. Andrews described the accused as expressing anger, with few exceptions, with regard to having to be on probation and in denying responsibility for the offences.
(B) Psychological Evidence
[98] Dr. Kuelker, a registered psychologist, conducted the s. 752.1(1) assessment of the accused. On February 27, 2001 he met with the accused at the Surrey Pre-Trial Centre to commence the psychological assessment for these dangerous offender proceedings. The accused declined to be interviewed by Dr. Kuelker, as is his right. The accused cooperated at a later date with Dr. Robert Haymond, also a registered psychologist, and provided information and was interviewed by Dr. Haymond, at the request of defence counsel. While no adverse inference can be drawn against the accused for exercising his right not to be interviewed by Dr. Kuelker, there are some limitations which apply to the accused in those circumstances. I refer to Regina v. M.O.B. (1999), 133 C.C.C. (3d) 76, 1999 BCCA 84 at para. 28:
While it is true an accused person cannot be compelled to testify on sentencing neither can he or she obtain any advantage from silence. The psychiatrists acknowledged the respondent’s attitude made their task more difficult.
[99] Considerable time was taken up by the examination and cross-examination of the psychologists, Dr. Kuelker, Dr. Haymond and Dr. Smiley. Much of this focused on the Psychopathy Checklist – Revised (PCL-R) - that is, the manner of testing and the resulting scores - as conducted by Dr. Kuelker and by Dr. Haymond. I do not find the dispute over what should be the score on the PCL-R to be of significance. The Crown concedes that it has not met the standard of proof necessary to conclude that the PCL-R score establishes that the accused is a psychopath.
[100] What is helpful, in the evidence of the psychologists, is their opinions on the impact of other evidence which is before me: that is, the denials by the accused, his belief that sex with children is normal and the commission of these offences over a long period of time and his pedophilia.
[101] With regards to intractability, Ryan J.A. in Johnson referred in paragraph 70 to R. v. Lyons, [1987] 2 S.C.R. 309 at 338, at paragraph 70 and I quote in part:
...explicit in one form or another in each subparagraph of ss. 687 [now s. 752] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable...
[102]