R. v. McManus, 2024 ONCA 832

Court of Appeal for Ontario

Date: 2024-11-12 Docket: C68613

Before: Lauwers, George and Copeland JJ.A.

Between: His Majesty the King, Respondent And: Ivan McManus, Appellant

Counsel: Richard Litkowski, for the appellant Étienne Lacombe, for the respondent

Heard: November 6, 2024

On appeal from the dangerous offender designation and indeterminate sentence imposed on March 29, 2018, by Justice Alfred J. O’Marra of the Superior Court of Justice, with reasons reported at 2018 ONSC 1714.

Reasons for Decision

Introduction

1On August 10, 2016, the appellant pleaded guilty to seven counts of robbery contrary to s. 344 of the Criminal Code, R.S.C. 1985, c. C-46. These are the predicate offences for the dangerous offender designation now under appeal. The sentencing judge found the appellant to be a dangerous offender and imposed an indeterminate sentence. The appellant seeks to appeal his dangerous offender designation and sentence.

2The sentencing judge correctly applied the relevant legal tests. After hearing the appellant’s submissions, we dismissed the appeal with reasons to follow. These are our reasons.

Background

(a) Predicate Offences

3The appellant committed each of the seven robberies in a similar fashion: he entered a bank and demanded money from an employee, keeping one hand in his pocket, signalling that he had a concealed weapon. He was arrested on July 29, 2015. Following his convictions, the Crown applied to have the appellant declared a dangerous offender and sought a sentence of an indeterminate term of imprisonment under s. 753 of the Criminal Code.

(b) The Appellant’s Criminal History

4The appellant’s criminal history is extensive. The sentencing judge summarized his criminal record in paras. 12-13 of his reasons:

1. January 17, 1991, Toronto Youth Court two counts extortion, theft over $1,000, fail to comply with recognizance. Sentence: 12 months’ probation each count concurrent.
2. June 25, 1992, Toronto Youth Court theft under $1,000. Sentence: probation 12 months.
3. December 23, 1992, Toronto Youth Court break enter and theft, possession of stolen property over $1,000. Sentence: 3 months open custody and 12 months’ probation each count concurrent.
4. March 11, 1993, Toronto Youth Court fail to comply with recognizance. Sentence: 14 days secure custody consecutive to sentence serving.
5. October 18, 1993, Oshawa Youth Court break enter and commit. Sentence: 4 months secure custody and 2 months open custody.
6. Orillia Youth Court attempt robbery. Sentence: 8 months secure custody and 12 months’ probation, firearms prohibition for 5 years.
7. November 1, 1994, Cobourg Youth Court assault with a weapon. Sentence: 60 days secure custody.
8. December 20, 1994, Cobourg Youth Court Assault. Sentence: 4 months secure custody consecutive to sentence serving.
9. July 4, 1995, Orangeville Youth Court mischief. Sentence: 27 days’ time served.
10. July 24, 1995, Orangeville Youth Court obstruct peace officer. Sentence: 84 days secure custody.
11. May 12, 1997, Toronto possession of stolen property under $5000. Sentence: suspended sentence and 18 months’ probation.
12. June 10, 1997, Burke’s Falls possession of stolen property over $5000, dangerous operation of a motor vehicle causing bodily harm. Sentence: 9 months and 9 months consecutive, plus two years’ probation.
13. February 5, 1998, attempt theft over $5,000. Sentence: 5 months and 29 days pre-sentence custody.
14. April 22, 1998, Brampton attempt theft over $5,000. Sentence: suspended sentence and 2 years’ probation.
15. February 19, 1999, manslaughter. Sentence: 9 years and 6 months and firearm prohibition.
16. December 3, 2004, Kingston, Ontario uttering threats. Sentence: 60 days consecutive to sentence serving.
17. February 15, 2007, statutory release.
18. June 26, 2007, Toronto robbery x3. Sentence: 6 years consecutive to unexpired portion of sentence serving (July 27, 2007 statutory release of violator recommitted).
19. February 14, 2011, assault peace officer Kingston, Ontario. Sentence: 60 days consecutive to sentence serving.
20. February 16, 2012, assault. Sentence: 90 days consecutive to sentence serving.
21. December 15, 2016, uttering threats. Sentence: pre-sentence custody 90 days plus $1 fine.

Mr. McManus was first sentenced to serve a penitentiary sentence on February 19, 1999, for manslaughter. He was sentenced to 9 ½ years in prison. He stabbed another young man to death. In 2007, he received a statutory release to reside at the Keele Community Correctional Centre in Toronto. After four months he absconded from the facility and in the course of one week committed three bank robberies for which he received an additional six years’ incarceration.

5In addition to his criminal record, the appellant has accumulated an institutional record, summarized in paras. 14-16 of the sentencing judge’s reasons:

• He was involved in altercations and assaults of other inmates or officers or in possession of a weapon on 27 occasions.
• He was thought to have been in possession of a weapon on three occasions.
• On 35 occasions he was verbally abusive, threatening or intimidating toward other inmates or officers.
• On 20 occasions he refused or was non-compliant with orders.
• He was found to have damaged property, threw food trays or was in possession of unauthorized items on 19 occasions.

Mr. McManus spent lengthy periods of time in segregation as a result of his misbehaviour and was transferred from one maximum security facility to another nine times between 2000 and 2015, the year of his warrant expiry date release. (See Appendix A).

Since his re-incarceration in July 2015 following the seven bank robberies, he has committed a number of misconduct offences by threatening guards and committing assaults. On April 28, 2016 while in the holding cell area of the courthouse pending the hearing of this matter Mr. McManus threatened to kill one of the security officers.

6Dr. Mark Pearce conducted a psychiatric assessment under s. 752.1 of the Criminal Code. He diagnosed the appellant with moderate to severe poly‑substance abuse disorder and serious anti-social personality disorder. This assessment prompted the conclusion that the appellant posed a high risk for violent recidivism.

7The appellant has frequently requested treatment programming while incarcerated. However, the appellant has refused treatment when it was offered, discontinued his involvement after joining, or has been expelled from treatment due to placement in segregation following violent incidents.

Dangerous Offender Designation

8To determine whether an offender is a dangerous offender under s. 753(1) of the Criminal Code, the Crown must demonstrate, beyond a reasonable doubt, “a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct”: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 46. In Boutilier, the Supreme Court of Canada defined “intractable” conduct as “behaviour that the offender is unable to surmount”: at para. 27.

9The sentencing judge found that the appellant was a dangerous offender and imposed an indeterminate sentence. We agree.

10The sentencing judge first concluded that the predicate offences constituted a serious personal injury offence as defined by s. 752(a)(i). He reached this conclusion in part by recounting the appellant’s threat to “blow” a bank employee’s “head off” unless he was given $2000 during the first robbery.

11The dangerous offender criteria are laid out in s. 753(1) of the Criminal Code. The relevant portion of s. 753(1) provides:

753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall 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…

12The sentencing judge then determined that a dangerous offender designation was justified under either s. 753(1)(a)(i) or s. 753(1)(a)(ii). Although the sentencing judge only used the term “intractability” once, he was alive to the principles articulated in Boutilier. He made several findings to buttress his conclusion that the appellant was intractable with a high likelihood of harmful recidivism. Specifically, the sentencing judge pointed to the appellant’s inability to control his anger or impulsivity, his history of re-offending, his anti-social personality disorder, his poly-substance abuse disorder, and his substantial indifference to the consequences of his behaviour. The sentencing judge found that, as laid down in Boutilier, that the appellant demonstrated intractability.

13The sentencing judge imposed an indeterminate sentence because he was not satisfied that there was a reasonable expectation that a lesser measure would adequately protect the public under s. 753(4.1). In support of this conclusion, the sentencing judge recounted the appellant’s refusal to participate in treatment programs and his consistent pattern of reoffending. In considering and rejecting the prospect of a lesser determinate sentence, the sentencing judge stated:

I have no confidence due to his pattern of criminality, his history of violence that his risk for future violence and committing a serious personal injury offence will be reduced to an acceptable level either confined to an institution or on release into the community… There is no reasonable prospect of him managing his impulsive violent behaviour within a determined period of time.

14Consequently, the sentencing judge found that a determinate sentence would not mitigate the appellant’s risk to the public.

15The appellant raised two grounds of appeal. First, the appellant asserted that the sentencing judge erred in finding that the Crown discharged its burden in establishing that the appellant’s conduct was intractable, thus leading to a dangerous offender designation. Alternatively, if the sentencing judge was correct in designating the appellant as a dangerous offender, the sentencing judge erred in imposing an indeterminate sentence. Specifically, the appellant argued that the sentencing judge placed too much emphasis on the future risk assessments, and too little emphasis on the “burn out” phenomenon and the proposed methods of the appellant’s treatment and control in the community. Notably, criminal “burn out” refers to the possibility that rates of recidivism decline with age, leading to the argument that the better sentence would be 10 years followed by a 10 year Long Term Supervision Order, after which the appellant would be close to 60 years of age. The appellant submitted that the sentencing judge erred in undervaluing “burn out” in his analysis of the fit sentence. This phenomenon had some play in Dr. Pearce’s assessment, but there was no reliable evidence to give “burn out” any weight in the analysis. The sentencing judge noted that the appellant’s ongoing and continuous violent behaviour was likely a negative prognostic indicator. He did not err in declining to give effect to the concept of burn out.

16The appellant also submitted that the sentencing judge erred in failing to give the proposed plans for treatment sufficient weight, especially given the introduction of the Integrated Correctional Program Model offered in federal correctional institutions. Notwithstanding the Program’s introduction, the sentencing judge concluded that the appellant’s past refusal and his removal from treatment stood against giving this new development much weight. The sentencing judge did not err in so doing.

17We would not interfere with the sentencing judge’s assessment of the evidentiary record or his reasons, and dismiss the appeal.