Complex treatment needs dilemma for courts
Finding resources to help offenders with lesser-known disorders difficult
Kevin Joey Toulejour is a violent offender with a prolonged history of biting women and children. He can't explain why he does it, and the criminal justice system can't figure out how to treat him.
The 43-year-old was declared a dangerous offender in 2016 and sentenced to an indeterminate prison term after pleading guilty to beating and biting an intimate partner and her children. It was his fifth serious assault involving biting, according to a recent Saskatchewan Court of Appeal decision.
A forensic psychiatrist who assessed Toulejour determined that he can't be managed in the community because there is no known treatment for someone who repeatedly bites children.
Toulejour appealed his dangerous offender sentence, arguing the sentencing judge erred by relying on Dr. Shabehram Lohrasbe's report, which he said did not have the “cultural competency” to address the reasons for his offending.
Lohrasbe found Toulejour's treatment options were limited because he was unwilling to accept responsibility and unable to provide any reasons for his biting.
“(In) psychiatric assessments, we depend upon a person being able to describe what was going on in their minds at the time of whatever the issue may be. It could be a symptom, it could be, say, suicidal thinking, or it could be violence. And when a person cannot or will not provide information about his thoughts, feelings, motivations, there is a gap — a gap in the confidence with which one can plan for treatment because we don't know what we are dealing with,” Lohrasbe concluded.
“In summary, I would say that Mr. Toulejour's offences provide a — for me, anyway, an absolutely unique challenge in offering the Court an opinion about his risk. I say unique because I've never assessed an individual with such an extensive history of biting children. And I've scoured the literature and I found no descriptions that would help me.”
The appeal judges dismissed Toulejour's request for a new hearing, finding the sentencing judge correctly relied on Lohrasbe's conclusion that an indeterminate sentence was the only way to protect the public from Toulejour.
The unique case raises questions about how the criminal justice system deals with offenders who have complex or unknown mental health and behavioural issues.
SYSTEM GAPS
“The court is a distinct system, and the health-care system is a distinct system. Unfortunately sometimes the two do not interact or communicate,” said Dr. Mansfield Mela, a psychiatry professor at the University of Saskatchewan who does forensic assessments in the criminal justice system.
He said mental health is still a new area in the world of medicine. Doctors may not know how to help people with lesser-known disorders, and the health-care system hasn't sufficiently expanded to provide programs and interventions for what Mela calls the “forensic system.”
He says the system also has a “selective bias.” For example, there are many programs for people with anxiety, but not for people with a biting disorder.
“It makes it challenging for the courts to keep the person in the community because there is no resource available,” he said.
In 2021, a Saskatoon provincial court judge determined he couldn't designate Gabriel Curtis Roy a long-term offender because Roy refused to comply with a release plan, telling psychiatrists that he would not and could not stop sexually harming children.
A long-term offender designation, which includes a lengthy period of community supervision, requires “a reasonable possibility of eventual control of the risk in the community.”
Mela said the dangerous offender system is necessary when people cannot change, but some offenders say they don't want to stop or can't stop offending, without meaning it.
“There are opportunities to change if we go about it the right way, starting from engagement in treatment, providing the right treatment, at the right time by the right people,” he said.
ASSESSING TREATABILITY
In Toulejour's case, the sentencing judge determined “It is not that Mr. Toulejour is not treatable, it is whether any known treatment will be effective.”
As part of his appeal, he wanted to introduce new evidence from a registered psychiatric nurse who found that he suffers from depression and anxiety, suicidal ideation and a permanent brain injury connected to years of sexual abuse and trauma which Toulejour disclosed to a pre-sentence report writer, but not Lohrasbe.
“Mr. Toulejour asks that the fresh evidence be admitted to provide further evidence regarding his treatability and to demonstrate that there was more evidence to be obtained regarding cultural issues in assessing his risk of reoffending and his treatability,” the appeal decision states.
Justices Georgina Jackson, Robert Leurer and Jeffery Kalmakoff ultimately found that while the fresh evidence might shed some light on Toulejour's offending, “There is no additional evidence, explanation or argument put forward regarding the cultural aspects of treatability that detract from the sentencing judge's conclusion.”
Mela said dangerous offenders who receive indeterminate sentences are reassessed during their incarceration and could eventually be released on parole if they demonstrate significant changes.