Court File and Parties
Court: COURT OF APPEAL FOR ONTARIO Date: 2022-11-04 Docket: C67077
Judges: Gillese, Nordheimer and Sossin JJ.A.
Between: His Majesty the King, Respondent and Adel Arnaout, Appellant
Counsel: Matthew R. Gourlay, for the appellant Elena Middelkamp, for the respondent
Heard: October 24, 2022
On appeal from the sentence imposed by Justice John B. McMahon of the Superior Court of Justice on January 18, 2019.
Reasons for Decision
1Mr. Arnaout appeals from the decision of the sentencing judge in which the appellant was found to be a dangerous offender and from the indeterminate sentence that was imposed. He seeks to set aside that designation with the substitution of a five-year determinant sentence of imprisonment to be followed by a ten-year long-term supervision order. Alternatively, the appellant seeks a fresh dangerous offender hearing.
2This matter has a somewhat lengthy history. The appellant was convicted in 2010 of 11 counts of attempted murder along with other related offences. He was subsequently declared to be a dangerous offender. In 2015, this court allowed the appellant’s appeal in part, set aside eight of those convictions and entered acquittals on those counts. [1] The remaining three counts of attempted murder were upheld. The case was then returned to the Superior Court of Justice for a fresh dangerous offender hearing. It is from the decision in that second dangerous offender hearing that this appeal arises.
3The background to these events involved two different sets of conduct by the appellant. In 2004, the appellant sent bottles of water to various individuals that he had tainted with a chemical substance. No one fell ill from these tainted water bottles. While it appears that the appellant had intended to also put poison in the bottles, that did not occur. In 2007, the appellant sent letter bombs to three individuals. On his arrest, the appellant was found to have three additional bombs in the trunk of his car. Only one of the bombs exploded and it caused only minor injuries to the intended victim.
4The appellant advances a number of grounds of appeal. We deal first with the submission that a pattern of behaviour was not established as required by s. 753(1)(a) of the Criminal Code. [2] This submission is coupled with two other grounds of appeal. One is that the sentencing judge erred in considering the tainted water bottle events as part of the pattern and the other is that the sentencing judge erred in considering certain writings of the appellant, subsequently found by the authorities while he was incarcerated after the guilty verdicts.
5In our view, it is unnecessary to deal with those two grounds of appeal since we are of the view that the three letter bombs, and the discovery of three additional bombs in the appellant’s car, were sufficient, on their own, to establish the pattern of behaviour required by s. 753(1)(a). As Watt J.A. observed in R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 230:
No serious issue is taken with the principle that two strikingly similar incidents, or series of incidents, can sustain a finding of a pattern of behaviour for the purposes of s. 753(1)(a). [Citations omitted.]
6It was open to the sentencing judge to conclude that the sending of three letter bombs, some days apart from each other, together with the discovery of three additional bombs, established a pattern of behaviour. Whether the sentencing judge ought to have considered the tainted water bottle events, or the appellant’s writings, does not impact on that conclusion. In fairness to the sentencing judge, trial counsel for the appellant, while not conceding the point, did not make any submissions on the issue of pattern. It is understandable, therefore, that the reasons of the sentencing judge do not analyze this issue in depth.
7We should add that we permitted brief written argument from the respondent on a late additional argument from the appellant that the acquittals entered by this court on the attempted murder charges in 2015 estopped any reliance on those events for the purposes of the pattern analysis. Given our conclusion on the pattern issue, we also do not need to address that argument.
8The appellant further submits that the sentencing judge erred in concluding that his conduct with respect to the letter bombs satisfied the brutality requirement found in s. 753(1)(a)(iii). We do not agree. Not only might a letter bomb seriously injure, or kill, the intended recipient, it might also seriously injure or kill others in the vicinity of the explosion, including children. The bomb might also explode at any point along the chain by which it is ultimately delivered, thus harming any number of people, together with the very real potential for collateral damage and injury. “Conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage on the victim is sufficiently ‘brutal’ to meet the test”: R. v. Langevin (1984), 45 O.R. (2d) 705 (C.A.), at p. 718. We view this conduct as satisfying that test.
9Finally, the appellant submits that the sentencing judge erred in imposing an indeterminate sentence by finding that it was not reasonably possible for the appellant’s behaviour to be controlled in the community. The appellant says that the sentencing judge erred in rejecting Dr. Gojer’s evidence that the appellant was an undiagnosed schizophrenic and that his behaviour could be controlled through appropriate medication.
10The sentencing judge had expert evidence before him from different psychiatrists including not only Dr. Gojer but also Dr. Woodside. The sentencing judge preferred the evidence of Dr. Woodside. The sentencing judge was entitled to make that choice. The sentencing judge was also entitled to conclude that a long-term supervision order, even with a requirement that the appellant take medication, was not sufficient to control the appellant and protect the public, especially given the appellant’s history of going off his medication and the potentially rapid deterioration of the appellant’s mental state if that occurs.
11The appellant acknowledges that the sentencing judge applied the proper test regarding the determination of the reasonable possibility of control of the appellant’s behaviour. The sentencing judge’s conclusion on the application of that test is thus a factual one. It is entitled to deference from this court. Absent a palpable and overriding error (which is not made out in this case), there is no basis for this court to interfere.
12The appeal is dismissed.
“E.E. Gillese J.A.” “I.V.B. Nordheimer J.A.” “L. Sossin J.A.”
Footnotes
1R. v. Arnaout, 2015 ONCA 655, 127 O.R. (3d) 241.
2It was accepted by all parties that the dangerous offender provisions as they existed prior to the 2008 amendments were applicable to this case.