Date: 19971010
Docket: X040224
Registry: New Westminster


IN THE SUPREME COURT OF BRITISH COLUMBIA


Oral Ruling on Dangerous Offender Application
Mr. Justice McKinnon
October 10, 1997




HER MAJESTY THE QUEEN



v.



ROGER RAYNAUD BRUMMELL







Counsel for the Crown: Ms. W. Dawson

Counsel for the Defence: Ms. G. Gill



[1] THE COURT: Mr. Brummell pleaded guilty to one count of
sexual assault before my brother Josephson on June 2nd, 1995. 
Consequent upon that plea, the Crown sought and obtained the
consent of the Attorney General to dangerous offender
proceedings pursuant to s. 753 Part XXIV of the Criminal Code. 
In the interim, Josephson, J. became involved in a lengthy
trial such that this matter was, with consent of both counsel,
referred to me for hearing. In the result, on May 2nd, 1997, I
commenced these proceedings.

[2] On that date, Crown advised they had nominated Dr. J.A.
Noone in August of 1995 in accordance with the provisions of
the Criminal Code. Defence had not to that date nominated a
psychiatrist but proceeded to nominate Dr. Kulwant Riar on the
understanding proceedings would be adjourned over the summer to
permit Dr. Riar time to examine Mr. Brummell and prepare his
report.

[3] Defence conceded the facts of the sexual assault and
consented to filing as an exhibit, a transcript of the
preliminary hearing. The offence occurred over a period of
several months and involved a series of assaults upon a nine-
year-old boy. His parents had befriended the accused,
following Mr. Brummell's release from prison. 

[4] The accused suffers pedophilia. Upon release he
ingratiated himself with the family such that he was able to
spend a great deal of time alone with the boy. Numerous acts,
including digital anal penetration, fellatio and much fondling
occurred over this period of several months. Ultimately, a
tenant of the parents observed suspicious behaviour which she
reported, leading to an investigation and ultimate plea.

[5] Mr. Brummell is fifty-nine years of age, but appears
considerably older. He suffers many health problems, such that
at least one medical expert considered it improbable he will
live beyond age seventy. Much argument was advanced by his
counsel on this point. She contended that any finding of
"dangerousness" by the Court should be tempered with the
probability that he would be incapable of criminal acts upon
completion of a reasonably lengthy determinate sentence.

[6] The offender, not surprisingly, has a long criminal
history, commencing in 1953, when he was convicted of break and
enter. Thereafter he embarked upon a life of crime for which
he has spent many years in prison. I counted thirty-five
convictions through to 1986 when he received a global sentence
of eight years for sexual assault and gross indecency. He
served his full sentence and had been released only a matter of
weeks when he befriended and commenced assaulting the young boy
who was the subject of this last offence.

[7] He has been assessed by many professionals over the years. 
Some have assessed him on more than one occasion at different
stages of his life. Dr. Noone first came in contact with him
in 1990, when asked to assess him for parole considerations. 
In his report, he offered the following assessment,

In summary therefore, this rather tragic
individual who has been institutionalized all
his life, predominantly in Correctional
settings, continues with a highly severe mixed
personality disorder which may be abating to a
degree as he gets older; however, this is still
not at a stage of recovery that would give any
prospect for predicting survival in the
community without similar recidivism. My
recommendation therefore is that this rather
tragic product of his environment be kept in
custody for as long as the law allows. The risk
for similar recidivism is unacceptably high for
the period between his mandatory date and his
warrant expiry date. 

Dr. Noone concluded his comments in 1990 by saying,

In over five hundred parole assessments, I have
seldom seen a more damaged personality than this
sad case.

[8] Considerable historical information, both professional and
custodial, was filed which has proven astonishingly accurate in
terms of projection. In 1957, an A.M. Clarke, psychologist,
described Mr. Brummell as having a "sociopathic personality
aggressive type" with a "poor" prognosis. In 1975, one F.R.
Johnson, Classification Officer, recorded that his observations
of the offender led him to conclude that he was a "habitual
criminal" likely to reoffend. Similarly, in 1976, G.A. Angus,
Senior Probation Officer, considered recidivism a probability.

[9] I recognize these persons were not called as witnesses and
prison officials cannot be considered "experts" capable of
proffering opinions on recidivism. I mention them only because
much of what they opine from their observations is supported by
persons who are capable of offering opinion. I do not recall a
case where the opinions expressed, including those of the
Defence experts are so universal in their prognosis.

[10] In 1976, a Dr. Gordon Stevenson, M.D., said of
Mr. Brummell that it was "quite likely that even with an
extraordinary degree of sponsorship and supervision he is not
socially reclaimable." In 1978, Dr. William Forester diagnosed
him as a "pathological personality" showing no guilt for
offenses and for which there is no effective treatment. He
recommended external controls. Dr. Alistair Murray assessed
him eight years later in 1986 and concluded that he represented
a continued danger to small children. He felt it was unlikely
he would be amenable to treatment and considered that
realistically he was not treatable.

[11] Two years later, Dr. Schimpf, psychologist, conducted
extensive tests and concluded Mr. Brummell suffered "severe
neurological deficit" which along with other difficulties led
to "a markedly inadequate personality." In 1988, another
psychologist, Dr. W. Ross, considered the offender to be a
"dangerous sexual offender" whose sexual urges had become more
intense and out of control. He did not consider Mr. Brummell
to be amenable to treatment and recommended his detention in
prison "as long as possible." 

[12] Also in 1988 he was assessed by Dr. Derek Eaves, who also
testified on this hearing. In his 1988 report, Dr. Eaves noted
that Mr. Brummell was not much interested in a productive
psychiatric assessment. It was Dr. Eaves' view then that
Mr. Brummell would never commit himself to valid treatment
interventions, citing his criminal record, his drug and alcohol
abuse and other relevant aspects. Dr. Eaves considered him as
posing a "tremendously high degree of risk" and I say
parenthetically that was for recidivism should he be released.

[13] It is interesting to note that almost ten years ago
Dr. Eaves concluded that "overall, the prospects for this man
are dismal in the extreme and the risks of him committing both
sexual and non-sexual crimes are seen as substantial." At this
hearing Dr. Eaves was provided with "assumed facts" tracking
Mr. Brummell's history since last seen by him. He concluded
that it was unlikely a person with Mr. Brummell's history would
benefit from any treatment, assuming he was willing to undergo
same. He was unable to proffer any particular opinion
respecting Mr. Brummell because he did not have sufficient
information about him. He based his opinions on the "assumed
facts," given by the Crown. He did concede some advances in
treatment from 1988 and that programmes exist to assist those
suffering the diagnosis of Mr. Brummell, but these were
comments generally and not specific to Mr. Brummell.

[14] Dr. Noone, the Crown-appointed psychiatrist, interviewed
Mr. Brummell many times. I believe he saw him on twenty-one
occasions, varying from fifteen to thirty minutes a session. 
He also reviewed the many reports and documents filed. He
considered Mr. Brummell to be a "fixated pedophile" for whom
treatment would be "difficult." Historically he could see no
indication of any concerted attempt or effort on the offender's
part to partake in meaningful treatment, notwithstanding
availability. He considered Mr. Brummell's risk of recidivism
to be unacceptably high in 1990 and that continues to be his
view. He commented that, 

In 1990 I was absolutely certain that if given
the opportunity, he would reoffend and the risk
in 1997 is the same as that given in 1990.


He also said that he is seldom so dogmatic about a prognosis.

[15] It was Dr. Noone's view that if Mr. Brummell was
imprisoned for a further ten years during which time he
received treatment, he could still not safely be released into
the community. He knew of no present community resources that
would satisfy his concerns for public safety. Similarly, he
knew of no treatment programme that would ultimately prove of
much value to this offender, given his resistance to treatment
and his poor physical health. It was his view that no
psychological drive was necessary to offend, rather mere access
to children was all that was necessary.

[16] Dr. Noone was also sceptical that Mr. Brummell would avail
himself of any meaningful programmes, citing historical
evidence that indicated he had no remorse, little insight and
had never been involved in substantial rehabilitative
programmes. He did attend several short programmes, but
nothing of significance when weighed against his serious
disabilities. 

[17] He was also of the view that even if motivated, he could
not tolerate the kinds of programmes presently available
suggesting a more "gentle approach". He considered the best
scenario would see Mr. Brummell transferred to Mountain Prison,
where he might avail himself of the intensive programme offered
by one Fay Tomanuk. If successful in that programme he might
then embark upon the sexual offender programmes presently
offered, then return to the regular prison population but
continue with programmes designed to prevent relapse. Only
after all of this, which he estimated would take at least ten
years, should he be considered for minimum security and perhaps
eventual release into the community, and then only if he
successfully completed the various programmes about which he
expressed some doubt.

[18] Dr. Riar interviewed and assessed Mr. Brummell, offering
the following summary,

In summary, Mr. Brummell has multiple ailments,
including medical, emotional and cognitive
difficulties. On the medical illness front, he
has coronary artery disease, diabetes, partial
complex seizures and Hepatitis C. Emotionally,
he has a mood disorder, cluster C personality
traits, somatoform disorder and paraphilia. 
Cognitively, he has impairment in memory,
attention and concentration. As well, he also
has below average intellectual capabilities,
learning disabilities and poor abstracting
abilities.


[19] That diagnosis was made by others, including Dr. Noone and
is generally accepted by all who are capable of offering expert
opinion on the topic. Dr. Riar commented about the dichotomy
involved in treating his epilepsy. That clearly must be
treated with medication, but one effect of the medication is an
aroused sexuality which is incompatible with treatment for
pedophilia. Even assuming he benefits from treatment, Dr. Riar
was of the view that any release to the community would require
a setting that provided Mr. Brummell with twenty-four hour
supervision. No such facility presently exists.

[20] I must say that after listening to Dr. Riar, the defence
psychiatrist, I considered his description of the "community
care" necessary for this offender to sound very much like a
custodial institution. It did not seem to me that Dr. Riar
believed Mr. Brummell possessed the necessary motivation,
assuming treatment was available. So far as he could discern,
any motivation emanated from either his conscience finally
telling him he needed treatment or merely because it is a
provident thing to do when faced with a dangerous offender
hearing. He was unable to establish any particular motivation,
assuming it existed.

[21] Dr. Riar also considered Mr. Brummell a continuing threat
to young children, notwithstanding his many health problems. 
Even with those problems, he will always have the urge to
offend and will be prevented from doing so only if so
incapacitated he simply cannot physically act. 

[22] Dr. Robert Ley, psychologist, offered the most positive
assessment. He interviewed and tested Mr. Brummell in April
1997 and also reviewed the many reports and opinions then
available. I use the term "positive" only in a relative sense. 
Dr. Ley believed Mr. Brummell sincere in his desire for
treatment and that given his modest accomplishments in the
past, it might be possible to offer some treatment. 

[23] Regrettably, I was not able to place much reliance on the
"accomplishments." One of these involved Mr. Brummell's
educational pursuits in the past few years, but it is not at
all clear just what he might have accomplished. Whatever he
accomplished, it would appear from the tests conducted by
Dr. Ulrich Lanius that he has relapsed to the point where he is
back to a Grade 3/4 level of comprehension. 

[24] All experts agree that in order to profit from treatment,
one needs both a certain level of intellect and some insight. 
Presently Mr. Brummell has neither.

[25] I permitted the Crown to reopen its case to call
Dr. Lanius as he had examined Mr. Brummell in August 1997 at
the request of both defence and Crown to explore the issue of
dementia. That inquiry apparently required very extensive
testing. Dr. Lanius was with Mr. Brummell for five and a half
hours on one occasion, and two and a half hours on another,
during which times more than six recognized tests were
conducted and later evaluated. Ultimately, insofar as dementia
was concerned, all he was able to conclude was that although
some early signs were observed, he could not make the
diagnosis.

[26] The tests and interviews, however, led to a conclusion
that Mr. Brummell represented a "very high risk of recidivism"
and that he should be kept under "close supervision for the
rest of his life." He went on to comment that there should be
no possibility of any unsupervised access to children and that
he would need twenty-four hour supervision. He considered the
possibility of successful treatment "remote." 

[27] Although defence assured me early in these proceedings
that it challenged the Crown's contention that Mr. Brummell was
a dangerous offender, the focus of most cross examination by
defence and indeed the evidence called by defence was directed
to the issue of whether he might reasonably be treated in a
determined period. 

[28] I had no difficulty concluding that Mr. Brummell met the
criteria for a dangerous offender found in s. 753. The offence
for which he was convicted is a serious personal injury offence
as defined in s. 752. A pattern of repetitive behaviour likely
causing severe psychological damage to victims has been
established, along with a likelihood that he would be unable to
restrain his behaviour in future. It has also been established
that Mr. Brummell engages in persistent aggressive behaviour
for which he expresses indifference to the harm caused to
victims. Finally, pursuant to s. 753(b) it has been
established beyond any dispute that there is a pronounced
failure on his part to control his sexual urges and the
likelihood of repeat offenses of this nature are virtually
certain.

[29] I therefore accept the Crown has discharged its burden and
has established that Mr. Brummell meets the criteria of a
dangerous offender. I find Mr. Brummell to be a dangerous
offender pursuant to Part XXIV of the Criminal Code. 

[30] As indicated, the major focus of this inquiry was how this
Court ought to exercise its discretion in terms of a
determinate/indeterminate sentence. Indeed, as indicated, this
was the primary focus of the defence.

[31] Mr. Brummell suffers pedophilia, for which there is no
cure, only treatment to control. Additionally, he suffers
severe health problems requiring extensive daily medication
that greatly restricts any ability to undergo that treatment. 
I am satisfied that given his deteriorating health and his
level of intellect and insight, he is unable to profit from any
treatment. 

[32] I have concluded, as well, that he is not motivated and
would probably not submit to treatment in any event. Even with
treatment, he remains a substantial risk, requiring twenty-four
hour supervision, which is not available in a community
setting. Without treatment, a situation I have concluded will
occur, he is virtually condemned to reoffend.

[33] In the result, I am satisfied, given the criteria of Part
XXIV that the only sentence option available is one of
indeterminate sentence. I therefore sentence Mr. Brummell to 
a term of detention in a penitentiary for an indeterminate
period in lieu of any other sentence that I might have imposed
for the offence of which he was convicted. If, as Ms. Gill
projects, he becomes so ill in the future that he is virtually 
bed-ridden, then I hope that the authorities will locate a care
facility that would make his days reasonably comfortable, while
at the same time exercising that twenty-four hour supervision
said by all to be necessary to protect the public.

"R.A. McKinnon, J."
The Honourable Mr. Justice R.A. McKinnon