A Fort McPherson man’s lawyer told an NWT Supreme Court judge on Tuesday that her client shouldn’t be supervised until his 50th birthday after he’s served his time in prison.
Defence lawyer Kate Oja said that would be the result of Justice Karen Shaner imposing an eight-year period of supervision and long-term offender designation the Crown is seeking for Johnny Simon.
She argued the prosecution had failed to prove beyond a reasonable doubt that Simon presents a substantial risk of re-offending and causing significant harm once he completes a two-year prison sentence, which she did not argue against.
Simon has been convicted of three sexual assaults, the most recent of which was in 2018, and 11 other charges including aggravated assault, assault with a weapon, breaking and entering, and theft.
As a result, Crown prosecutor Morgan Fane has submitted that Simon demonstrates a pattern of major criminality, especially while under the influence of alcohol.
Oja pointed to the Criminal Code’s description of a long-term offender as someone showing a pattern of repetitive behaviour or likelihood of causing pain, injury or other evil through similar offences.
She argued Simon’s sexual assault convictions are the only ones that have caused significant harm, and should be the only ones considered in the ruling as a result.
“The court should think twice about imposing an LTSO (long-term supervision order), when it’s not clear that it will actually help Mr. Simon,” she said. Adding later that “an LTSO is going to set Simon up for failure.”
Oja cited a test that forensic psychiatrist Dr. Phillip Klassen ran on Simon to predict the likelihood that he would re-offend. Oja said the test demonstrated a score well below the the threshold where it’s reasonable to predict Simon would do so.
She also pointed out that Klassen acknowledged that the chances a person who has committed a sexual assault will re-offend tends to decrease as they age.
She quoted Klassen’s acknowledgement that the test cannot predict Simon’s specific likelihood, but rather applies statistics to people like him.
Oja said Simon’s sexual assaults occurred over a 19-year period and that the differences in the assaults demonstrate a lack of criminal pattern.
While it’s important to recognize all of the offences and the big picture of Simon’s criminality as the Crown is arguing, Oja conceded, she said the details and discrepancies in his offences are imperative.
She said there’s no indication that Simon has a preference for non-consensual sex and that his offences “seem to be crimes of opportunity.”
The pattern is the presence of alcohol throughout his crimes, as Simon himself has acknowledged that when he drinks it’s like he doesn’t feel anything, “like I just don’t care,” the court heard.
Oja cited Klassen’s assessment of Simon indicating that there’s reason to believe Simon’s risk of re-offending would decrease if he stopped drinking. She cautioned that the risk of drinking “doesn’t just translate to risk of sexual assault,” and that the court shouldn’t treat Simon’s alcoholism as the same as a risk to re-offend.
However, she said reducing substance use should be at the forefront of his treatment.
Simon made his own statements at the end of the July 28 court session.
“I’m going to quit drinking,” he told Shaner. “For myself, and for my kids. I apologize for all my actions.”
Both defence and Crown lawyers acknowledged the significant Gladue factors at play relating to the traumas Simon endured in childhood.
“It’s clear that most, if not all his offences are linked to his trauma,” Oja said noting the sexual and physical abuse he faced while growing up.
Oja proposed that an LTSO, if ordered at all, should be around five years, rather than the eight proposed by Fane. In Fane’s proposal, the LTSO would be in effect until Simon’s 50th birthday. Oja, however, pointed to a Klassen’s assessment where he said that by age 50, Simon’s risk of reoffending would be low, “give or take a few years.”
Shaner is scheduled to deliver her decision on Simon’s sentence on Oct. 23 in NWT Supreme Court.