R. v. Walker, 2012 ONCJ 196

R. v. Walker

Court File No.: Toronto

Date: 2012-03-21

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

Krista Walker

Before the Court

Justice: Rebecca Rutherford

Counsel:

• Jennifer Crawford, for the Crown
• Lois Pineau, amicus curiae
• Krista Walker, self-represented

Heard: In Writing

Ruling on Dangerous Offender Application

Table of Contents

• SENTENCING HEARING
• PREDICATE OFFENCES
• EVIDENCE ON DANGEROUS OFFENDER APPLICATION
• PSYCHIATRIC EVIDENCE
• CORRECTIONS SERVICE CANADA
• DANGEROUS OFFENDER REGIME
• CROWN SUBMISSIONS
• KRISTA WALKER SUBMISSIONS
• AMICUS CURIAE SUBMISSIONS
• ANALYSIS

SENTENCING HEARING

1On January 12, 2010, Ms Walker appeared before me for trial self-represented. Amicus Curiae Lois Pineau was present. Ms Pineau had been assisting the Court prior to Ms Walker's appearance on January 12, 2010.

2On January 12, 2010 Ms Walker pleaded guilty to aggravated assault, carry concealed weapon and fail to comply with probation. Medical records pertaining to the victim Laurie Ann Thibodeau were filed as an exhibit. Ms Walker's criminal record was also filed as an exhibit.

3A pre-sentence report was already available. On May 15, 2009, Ms Walker pleaded guilty to attempt murder before Justice Wolski. At that time, Justice Wolski ordered a pre-sentence report. Justice Wolski appointed Ms Pineau as Amicus. On October 13, 2009, Justice Wolski struck Ms. Walker's guilty plea and the matter was set down for trial on January 12, 2010. It was agreed that the pre-sentence report ordered by Justice Wolski would be marked as an exhibit for the sentencing hearing to take place before me.

4Mr Carrington, on behalf of the Crown, applied for an order pursuant to s. 21 (1) of the Mental Health Act, RSO 1990, c M.7 for the purposes of assisting the court with sentencing. As part of the application, Mr Carrington filed a psychiatric report dated October 1, 2009 from Dr. Colleton from the Centre of Addiction and Mental Health. Ms Pineau objected to the Crown's application. I heard argument and adjourned the matter to January 15, 2010 for my ruling on the Crown's application.

5On January 15, 2010, I dismissed the Crown's application pursuant to s. 21(1) of the Mental Health Act, RSO 1990, c M.7 with full reasons. A transcript of my Reasons is attached as Appendix 1 to my judgment. Mr. Carrington then advised the Crown would be requesting an order pursuant to s. 752.1(1) of the Criminal Code to have Ms Walker assessed for the purposes of determining whether she should be designated a dangerous or long-term offender. The matter was adjourned for Crown and Amicus to make submissions on the application.

6On March 3, 2010 Ms Zaid, of the Crown Attorney's office, appeared on the application. Volumes of records from agencies, hospitals and institutions were subpoenaed. Dr. Klassen testified and after hearing evidence and after hearing submissions from Crown Counsel and Amicus I made an order that Ms Walker be assessed by an expert.

7On September 8, 2010 I received a report dated August 9, 2010 from Dr. Wilkie from the Centre for Addiction and Mental Health. Dr. Wilkie was of the opinion that from a psychiatric perspective Ms Walker met the criteria for dangerous offender designation. Crown Counsel Ms McNaughton advised she intended to apply to have Ms Walker designated a dangerous offender. She requested the matter be adjourned in order to obtain consent from the Attorney General for Ontario.

8On September 28, 2010 consent from the Attorney General for Ontario was provided to the Crown Attorney's Office to proceed with a dangerous offender application. On October 19, 2010, the consent was filed as an exhibit.

9The matter was adjourned on two more occasions before setting dates for the application. Ms Walker consistently stated she would refuse to come to court and would refuse to engage in the proceedings on the dangerous offender application. She expressed she may resort to violence including committing suicide. I was advised that on occasion in the past Ms Walker posed a security risk to the proper administration of justice by becoming violent with court officers and others in the courthouse and courtroom. She was often disruptive, used profane language, and refused to speak to Amicus. In fact, Ms Walker exhibited this behaviour throughout the whole of the application.

10Consequently, I canvassed alternative options for conducting the hearing. I looked into holding the hearing at a different Courthouse where Ms Walker's unique challenges could be accommodated. I canvassed the option of conducting the hearing via video link in order to minimize the stress Ms Walker experienced when attending court on multiple successive days. No other options were available to the Court; therefore, on December 16, 2010 the dangerous offender application was adjourned to begin on May 30, 2011.

11On May 20, 2011 Amicus brought an application pursuant to s. 672.11 (b) of the Criminal Code requesting an order to have Ms Walker assessed for the purposes of determining whether, by reason of mental disorder, Ms Walker was not criminally responsible at the time of the commission of the predicate offences. Crown Counsel Ms Crawford opposed the application. After receiving information and after discussing the matter with Dr. Gojer, Amicus Pineau was able to satisfy herself the application was not necessary and it was abandoned.

12The Court began to hear evidence May 30, 2010. Initially Ms Walker attended the proceeding, however later on in the application Ms Walker informed the Court she no longer wanted to attend. When I ordered her to attend court, she disrupted the proceedings to such an extent that it was clear the hearing could not be conducted in a meaningful manner and it was my view the safety of the parties, specifically Amicus was compromised. I attempted with as much force as I could to persuade Ms Walker to come to court in a peaceful manner so that she could be present for such an important and serious hearing. I reiterated to her the potential outcomes of the hearing including the possibility of a dangerous offender designation where an indeterminate sentence could be ordered. I advised her I would adjourn the proceedings at any time to allow her to consult with counsel of choice or with Amicus. In fact, on one occasion, I adjourned the proceedings for a number of days to allow Ms Walker to rest and calm herself from being in Court on such a regular basis.

13Given Ms Walker's repetitive disruptive behaviour and her continued insistence that she did not want to attend Court, I was of the view that Ms Walker did not wish to participate in the sentencing process and, if ordered to do so, she would physically resist any effort to bring her into the actual courtroom.

14In all of the circumstances, therefore, I felt it necessary and appropriate to continue with the proceeding in Ms Walker's absence. In coming to this conclusion, I took into the consideration the interests of the safety of the court officers, the court staff and the safety of Amicus and Crown Counsel. The dates upon which Ms Walker refused to attend Court I ensured full transcripts of the day's proceedings were prepared and I ordered they be provided to Ms Walker at the Vanier Correctional Centre for Women. I instructed Crown Counsel to verify with the officials at the institution that Ms Walker accepted all transcripts and all other materials provided to her. Ms Crawford confirmed this and I was satisfied, therefore, that Ms Walker was fully apprised of the evidence tendered and submissions made on each day of the proceedings she was not in court.

15On January 12, 2012 via video link, at the conclusion of the application, I confirmed with Ms Walker that she was in possession of all the material and transcripts relied upon by the Crown and Amicus on the dangerous offender application. I further inquired whether she wanted to attend court to either give evidence or make any submissions on the application. Ms Walker declined.

16The following material and records were filed and marked as exhibits on the application:

17(a) Notice of Application and Application Record including:

(i) Consent of Attorney General

(ii) Notice of Application

(iii) March 7, 2005 transcript of proceedings of Ms Walker's guilty plea on a charge of aggravated assault on June 17, 2004

(iv) April 27, 2005 transcript of proceedings of Ms Walker's guilty plea on a charge of utter death threat to cause death on April 8, 2005

(v) July 28, 2005 transcript of proceedings of Ms Walker's guilty plea to mischief under $5000.00 on June 19, 2005

(vi) December 16, 2005 transcript of proceedings of Ms Walker's guilty plea on a charge of uttering a threat on December 6, 2005

(vii) February 5, 2008 transcript of proceedings of Ms Walker's guilty plea to one count of utter death threat on January 24, 2008

(viii) July 28, 2008 transcript of proceedings of Ms Walker's guilty plea on one count of fail to comply probation

(ix) May 15, 2009 transcript of proceedings on charge of attempted murder

(x) Transcript of proceedings of January 12, 2010 before this Court

(xi) March 8, 2010 transcript of proceedings on a charge of utter death threat

(xii) Probation orders dated July 28, 2005, December 16, 2005

(xiii) Information and probation order dated February 5, 2005

(xiv) Information and probation order and s. 110 weapons prohibition order

(xv) December 14, 2004, court ordered psychiatric assessment of Krista Walker for purposes of determining whether Ms Walker was not criminally responsible by way of mental disorder at the time of the commission of an aggravated assault on June 17, 2004

(xvi) October 1, 2009 court ordered psychiatric assessment of Krista Walker for purposes of determining fitness to stand trial

(xvii) Pre- Sentence report dated June 26, 2009 in relation to the predicate offences

(xviii) August 9, 2010, S. 752.1(1) assessment of Krista Walker ordered by this Court on March 3, 2010

(xix) Victim impact statements from Laurie Ann Thibodeau dated June 26, 2009 and February 22, 2010

(xx) Victim Impact statement from Jeanette Richard dated May 20, 2011

(b) Records from the following community agencies, hospitals and institutions:

(i) 3 volumes of records from Toronto Children's Aid Society including:

1. Assessments and psychological reports from various hospitals, institutions and doctors in relation to Ms Walker

2. Board of Education's documents in relation to the education of Ms Walker

3. Progress Reports in relation to Ms Walker

4. Reports and assessments from various residential programs attended by Ms Walker

5. Placement history of Ms Walker

6. Plan of care agreements signed by Ms Walker

7. Wardship documents

8. Crown Ward administrative reviews

9. Children Aid Society reports from 1988-1995

10. Children Aid Society Family Service Information System Recordings and Termination Forms

11. Treatment Plans

12. All Incident Reports

13. All Emergency Duty Forms

14. Continued Care and Maintenance Agreements

15. Correspondence between Children's Aid Society and residential programs

16. Social worker notes

(ii) Records from Christian Horizons including:

1. Placement Application

2. Admission documents

3. Contracts between Christian Horizons and Ms Walker

4. Treatment documents

5. Termination and Re-Commencement of Service documents

6. Letters in relation to Ms Walker's threatening behaviour

7. Daily Checklists

8. Concern sheets

9. Data sheets

10. Behavioural Incident Reports

11. Exceptional Occurrence Report

12. Serious Occurrence Reports

13. Occurrence/Incident Reports

14. Client Accident Report

15. Phone messages by Ms Walker

16. Memoranda

17. Correspondence

18. Worker notes

(iii) Records of Hospital Admissions in Toronto, Ontario, including:

1. The Wellesley Hospital

2. The William Osler Hospital- Etobicoke General Hospital

3. The York Central Hospital

4. Mount Sinai Hospital

5. The Scarborough Hospital

6. Lake Ridge Health Network- Oshawa, Ontario

7. Rouge Valley Health Systems- Centenary Hospital

8. Humber River Regional Hospital

9. The Hospital for Sick Children

10. Toronto East General Hospital

(iv) Records from St. Michael's Hospital, Toronto, Ontario

(v) Records from St. Joseph's Health Centre - Toronto, Ontario

(vi) Records from St. Joseph's Health Centre and Hamilton Psychiatric Hospital, Hamilton, Ontario

(vii) Records from Whitby Psychiatric Hospital, Whitby, Ontario

(viii) Institutional records and probation records from Vanier Centre for Women including:

1. Letters authored by Krista Walker

2. Intake forms

3. Occurrence Reports

4. Health care record

5. Requests and notes

6. Clinical Progress notes

7. Programming services

8. Acknowledgments by Krista Walker of Court Orders and Probation Orders

9. Pre-Sentence Report notes and report itself

10. Medical records

11. Letters to and from Krista Walker

12. Probation case notes including:

(a) Notes of Stephanie Gould and police interview with Ms Gould

(b) Case notes of psychiatrist Dr. Srinivasan

(ix) Records from the J.D. Griffen Adolescent Centre including:

1. Intake documents

2. Programs offered

3. Conference notes

4. Consent to Psychotropic Medication signed by Krista Walker

5. Discharge documents

6. All correspondence

7. Consultation requests and reports

8. Case notes

9. Incident Reports

10. Serious Occurrence Reports

11. Progress Notes

12. Residential Progress Notes

13. Treatment plans

(x) Records from Queensway General Hospital

(xi) Records from the Centre of Addiction and Mental Health including:

1. All admissions

2. Medical notes

3. Clinical notes

4. Court ordered psychiatric assessments

(xii) Records from Reconnect, Canadian Mental Health Association and other Mental Health agencies including:

1. Progress notes

2. Referrals for Ms Walker for housing and community support

3. Housing documents and tenancy agreements

4. COTA Health - Mental Health and Justice Supportive Housing Documents

(c) Medical records pertaining to injuries sustained by Laurie Ann Thibodeau

(d) Various letters authored by Krista Walker

(e) Psychiatric report and assessment conducted by Dr. J Gojer dated 2011-09-05

(f) Information and Handouts from Correctional Services Canada regarding Crime Cycle Question Guide and Dialectical Behavioural Therapy

PREDICATE OFFENCES

18On March 9, 2009, Ms Walker and the victim Laurie Anne Thibodeau were at a drop-in centre located at 2A Elm Street in the City of Toronto. There was a social event at the drop-in centre, which was attended by both parties. Upon exiting the centre, Ms Walker became involved in an argument with a third person. Ms Thibodeau intervened in the argument. Ms Walker opened her purse and took out a paring knife with a 4-inch blade. Ms Walker stabbed Ms Thibodeau in the centre of her chest to the right side of her sternum. The blade of the knife punctured Ms Thibodeau's heart. According to Ms Thibodeau's medical records from St. Michael's Hospital and the evidence of Dr. Marshall, the attending trauma surgeon, but for the extraordinary medical intervention of the medical team, Ms Thibodeau could have died within 15 minutes of suffering the injuries inflicted by Ms Walker.

19In her victim impact statement, Ms Thibodeau states she has recurring nightmares depicting the stabbing. She is often afraid when she walks alone on the street. She feels the need to constantly look over her shoulder. She was afraid to testify in court because she believed her testimony would have made Ms Walker angry. She has a permanent scar on her chest, having received 33 staples from the incisions made during surgery. The scar serves as a constant reminder to her of the incident. Ms Thibodeau still has difficulty breathing and has regular pain and spasms in her chest. Ms Thibodeau has been significantly impacted by Ms Walker's actions.

EVIDENCE ON DANGEROUS OFFENDER APPLICATION

Offender's Background

20Ms Walker is 37 years of age. She was born in North Bay, Ontario. At 5 months of age, Ms Walker was hospitalized as a consequence of contracting meningitis. She was hospitalized first in North Bay and then transferred to the Hospital for Sick Children. The effects of the meningitis caused Ms Walker to suffer temporary blindness and irreversible brain damage.

21Ms Walker's biological parents divorced when Ms Walker was very young. She lived with her mother and stepfather until she was 3 years of age. Ms Walker exhibited behaviour that her mother could not cope with. Believing she could no longer care and control her daughter, the mother sent Ms Walker to live with her father and step mother.

22Carolyn Schiller from Toronto Children's Aid Society testified that when Ms Walker moved into her father's home she had no sense of boundaries and no particular life skills. This proved to be frustrating to her parents, especially her stepmother, who spent much of her time trying to teach Ms. Walker how to behave.

23In 1986, when Ms Walker was 12 years of age, the Toronto Children's Aid Society became involved in her life. The Children's Aid Society received a call from Ms Walker's school because Ms Walker made a complaint about violence within the home. The Society immediately became involved and in time Ms Walker became a Ward of the Society. The organization remained in her life until Ms Walker was a young adult.

24At age 13, Ms Walker was placed in foster care. She continued in and out of foster care from October 1987 to January 1988. In early 1988 Ms Walker began her many admissions into residential treatment facilities where it was intended she would engage in and benefit from intensive counselling and therapy. She continued to have contact with her family while living in group homes but in time the relationship between her and her family deteriorated. On occasion, there would be positive contact but sadly, the contact was always short-lived.

25Ms Walker lived in several different group homes. She met with many behavioural counsellors, therapists and psychiatrists. She was the subject of many tests and assessments. Intellectual testing and assessments conducted revealed Ms Walker has intellectual deficits, which place her at the 2nd percentile in some areas of cognitive ability and the 1st percentile in others.

26Ms Walker has been prescribed various medications in an attempt to deal and manage her behaviour. Other than medication prescribed for epilepsy, Ms Walker persistently resists taking anything else.

27As a resident in group homes or a tenant in community assisted living residences, Ms Walker was often described as aggressive, assaultive and suicidal. This resulted in her removal from the residence to either another group home or another setting within the group home. Over her lifetime, Ms Walker has been admitted on multiple occasions to hospitals, psychiatric or otherwise, because of her violent outbursts and fits of rage mixed with threats of suicide.

28Even during her many hospital admissions Ms Walker exhibited violent outbursts where she threw items intending to either cause damage to property or cause harm to individuals. When overcome by rage she often spat and struck out at nurses and frequently threatened hospital staff with death or bodily harm.

29Ms Walker consistently exhibited this behaviour throughout her involvement with the Children's Aid Society, Christian Horizons, shelters in the community, hospital admissions and when involved in the Law and Mental Health Justice Initiative Programs. I will elaborate more fully on this in the next section of my reasons.

30Ms Walker has a criminal record commencing in 2005. Her record includes:

1. March 7, 2005 - aggravated assault – 1 day in addition to 263 days of pre-sentence custody followed by probation for 3 years

Mandatory s. 109 weapons prohibition

2. April 27, 2005 – uttering threats – 7 days in addition to 20 days pre- sentence custody

3. July 28, 2005- Mischief under $5000.00 – suspended sentence and probation for 6 months - 21 days of pre-sentence custody credited

4. December 16, 2005 – utter death threat – 12 months in addition to 41 days of pre-sentence custody followed by probation for 3 years - s. 110 weapons prohibition for 5 years

5. February 5, 2008 – utter threats- suspended sentence and probation for 12 months -13 days of pre-sentence custody credited

6. July 28, 2008 – fail to comply with probation – 1 day in addition to 7 days pre-sentence custody.

Prior Crimes of Violence and Other Acts of Aggression

31Not only does Ms Walker have a criminal record for crimes of violence but during the course of her life, she has engaged in multiple acts of violence and aggression.

32The Crown sought to prove some of the prior acts of violence and aggression as an aggravating factor on the sentencing hearing. The Crown, however more importantly, relies upon Ms Walker's prior convictions for violence and evidence of prior acts of violence and aggression to establish:

(a) A pattern of repetitive behaviour on Ms Walker's part showing a failure to restrain her behaviour where there is a likelihood that death or injury could ensue; or

(b) That the prior acts of violence demonstrate that Ms Walker engages in a pattern of persistent aggressive behaviour, which shows a substantial degree of indifference to the foreseeable consequences of her actions towards others.

33After hearing evidence from youth workers, Susan Burrill and Joanne Hancock, from social workers Andrew Samchek and Jennifer Alexander, from Dr. Padjwani, from police officers investigating Ms Walker, from correctional officers and social workers at Vanier Correctional Centre for Women, from social worker and community worker Nadia Silva, from social worker Melissa Banton, and from probation officers supervising Ms Walker and after reviewing the contents of Ms Walker's many hospital admissions, psychiatric reports, prison records, community support agency records and notes, Children's Aid Society records and notes, I ruled the Crown satisfied the Court beyond a reasonable doubt that Ms Walker committed multiple prior acts of violence and aggression.

34On October 4, 2011, written reasons were filed in relation to 34 prior acts of violence. I ruled the Crown established beyond a reasonable doubt that Ms Walker committed 31 out of the 34 prior acts of violence. A copy of my reasons is attached to these reasons and marked as Appendix 2. Also attached and marked as Appendix 3 is a copy of a portion of the transcript of October 6, 2011 where I gave an oral ruling on the crown's application in relation to seven further prior acts of violence committed by Ms Walker. I ruled the Crown proved beyond a reasonable doubt that Ms Walker committed the acts. Because my rulings are thorough, I do not purport to go through each and every act in detail. I do believe however, that a number are worthy of discussion for the purposes of my reasons on the dangerous offender application.

35As stated earlier, as a young adolescent Ms Walker lived in many residential treatment facilities and community residential housing facilities. From the age of 12 onward Ms Walker experienced difficulty and frustration with her living arrangements.

36On January 25, 1989 as a 12-year-old girl, Ms Walker became suddenly angry with her worker at Pioneer Youth Services. Ms Walker stabbed Ms Burrill in the eye causing an injury. Ms Walker was removed from the residence for a period of time.

37On May 5, 1990, Ms Walker was a resident at the J.D. Griffin Centre. She did not want to help with kitchen duties. Joanne Hancock, a child and youth worker, was in the kitchen at the time. Ms Walker armed herself with a knife and held the knife towards Ms Hancock in a threatening manner. With help from another staff person Ms Walker was disarmed.

38In 1998 Ms Walker was living in community assisted housing operated by Christian Horizons. Ms Walker was not happy in the program or in the residence. On many occasions Ms Walker demonstrated her displeasure through aggression. She threatened staff and residents. Jennifer Alexander, a program manager for Christian Horizons, described an occasion where Ms Walker angrily entered her office. Ms Walker threatened to rip up documents and destroy a filing cabinet. Ms Walker left and the staff locked themselves in the office preventing Ms. Walker from re-entering. Ms Walker returned, threw rocks at the windows, breaking a window.

39Further, while residing at Christian Horizons Ms Walker threatened her roommate. She threatened to stab her roommate with a knife.

40On June 17, 2004, Ms Walker attended at her neighbour, Jeanette Richard's apartment door, and repeatedly buzzed at the door. The victim attended the door and told Ms Walker to stop buzzing. Ms Walker had a knife. Ms Richard raised her hands to defend herself and Ms Walker stabbed Ms Richard in the right hand. The knife penetrated both sides of Ms Richard's hand. Ms Walker told the police she hid the knife and they would never find it. On March 7, 2005, Ms Walker was sentenced to 1 day in jail followed by probation after having served 263 days in pre- sentence custody.

41While awaiting disposition on the above matter, a psychiatric assessment was completed for the purposes of determining whether Ms Walker was not criminally responsible because of a mental disorder. Dr Phillip Klassen and Dr. S. Chatterjee from the Centre for Addiction and Mental Health conducted the assessment. During the course of the assessment, Ms Walker told the psychiatrist, on more than one occasion, that she was angry with Ms Richard and did not care that she (Ms Walker) was in jail and that upon her release from custody she would get Ms Richard.

42On March 20, 2005 shortly after Ms Walker's release from custody, Ms Walker was admitted to St. Michael's Hospital in Toronto. She told the staff at St. Michael's Hospital she had planned to kill Ms Richard but was not successful because she "got her hand instead" (Exhibit 7B Tab 8A- St. Michael's Hospital- Emergency Report- March 20, 2005). Ms Walker also advised staff she wanted to kill Ms Richard and if she saw her, Ms Walker would push Ms Richard in front of a subway train and then jump herself.

43On April 8, 2005 Ms Walker was arrested pursuant to the Mental Health Act, RSO 1990, c M.7 and was taken to St. Joseph's Health Centre. She told staff she was involved in an altercation with her neighbour in June 2004 where she was charged and incarcerated. She told staff she planned to violate the terms of her probation order and planned and thought of killing Ms Richard and then possibly killing herself. The attending physician was concerned for the safety of the victim and the police were notified. Ms Walker was arrested and charged with utter death threat.

44While awaiting disposition on the above matter Ms Walker was in custody at Vanier Correctional Centre for Women. Ms Walker met with Shirley Abbas, a social worker employed at Vanier. Ms Abbas testified that on April 12, 2005 Ms Walker stated she wanted to go back to her former neighbour's residence and kill her. She also told Ms Abbas that she wanted to kill herself.

45On April 27, 2005 Ms Walker was convicted of threatening death to Jeanette Richard. Ms Walker blamed Ms Richard for the trouble Ms Walker was experiencing in her own life. Ms Walker served 20 days of pre-sentence custody and was sentenced to a further period of 7 days.

46On October 24, 2005, Ms Walker was an inmate at the Vanier Correctional Centre for Women. Shirley Abbas, in her capacity as social worker, once again had contact with Ms Walker. Although in her viva voce testimony she had no specific recollection of the exact words uttered by Ms Walker, her notes reflect Ms Walker continued to harbour hostility towards Ms Richard. The Critical Information Exchange Record was filed as exhibit 22(b) on the sentencing hearing.

47On December 16, 2005 Ms Walker was convicted of threatening death. The victim of the threat was once again Jeanette Richard. Ms Walker was investigated by police because she was sitting outside in the cold banging her head against a wall. She told the police she was angry with Jeanette Richard and said, "I'm going to kill the fucking cunt". She continued to repeat the threat during the police investigation. Ms Walker was sentenced to 12 months in jail followed by three years of probation. Ms Walker served 40 days in pre-sentence custody.

48On August 3, 2006 while Ms Walker was incarcerated at Vanier Correctional Centre for Women she was seen by Dr. Judith Levy-Ajzenkopf regarding a regularly scheduled therapy session. During the session, Ms Walker expressed anger towards the police about an "illegal search" on her property. (Exhibit 11(a) Tab 3- Occurrence Report- August 3, 2006). She continued to tell Dr. Levy-Ajzenkopf that she would "nail" the police and go out and kill Ms Richard because it was Ms Walker's opinion that Ms Richard was responsible for the perceived illegal search. Ms Walker stated that although she does not necessarily believe in killing, she could justify it in these circumstances because Ms Richard "ruined [her] life". Ms Walker was scheduled to be released from custody on August 16, 2006. Dr. Levy-Ajzenkopf spoke to police because she could not be certain of Ms Walker's intentions regarding the comments. She was aware of Ms Walker's history for violence, therefore, had concern for Ms Richard's safety.

49On September 13, 2006 Ms Walker was a resident at Elisa House. Ms Banton, a social worker at Elisa House, testified Ms Walker was unhappy living at the shelter. On September 13, 2006, Ms Walker became angry and said if she gets arrested she will kill Ms Richard. Ms Walker continued to blame Ms Richard for her homelessness.

50Jeanette Richard prepared a victim impact statement. In the statement, she described the effects of the physical injury to her. She described experiencing pain in her hand. She expressed frustration because for a period of time following the assault she could not use her hand. Ms Richard concedes that prior to the assault she was a drug user and explains that afterward her drug use increased because doctors would not prescribe pain medication for her. Ms Richard still experiences numbness in her hand.

51On February 5, 2008 Ms Walker was convicted of utter death threat. She threatened to kill Amor Manahan. Ms Walker was living at 22 Willowridge Road at the time. She believed building staff were tampering with her mail. She complained about this to one of her community support workers. She told her worker that if Amor Manahan stole her mail she would kill him. She carried on with this threat over a period of a few days. Ms Walker was sentenced to a suspended sentence and probation for one year. Ms Walker served 13 days of pre-sentence custody.

52Ms Walker was detained in custody after her arrest on the predicate offences. In October 2009, she was the subject of a psychiatric assessment. She expressed to Dr. Colleton she wished she had killed the victim of the predicate offences, Laurie Anne Thibodeau. Although Dr. Colleton, in his notes, states that at that specific time Ms Walker had no current violent ideation, her words, in my view, demonstrate a disregard and indifference towards the welfare of Laurie Ann Thibodeau.

53Ms Walker demonstrates the same indifference towards Ms Thibodeau, the victim of the predicate offences, by comments made to both Doctors Wilkie and Penney during their assessment of her. She told Dr. Wilkie that one of Ms Walker's friends would do something to Ms Thibodeau. Ms Walker advised Dr. Penney that she blamed Ms Thibodeau for her current problems and wanted to kill her.

Probation Records and Community Supervision

54I heard evidence from five probation officers who were charged with supervising Ms Walker. Probation records and plans of care were filed on the application.

55Ms Walker was a difficult client. She did not like to report and she did not want to engage in therapeutic and other services offered by probation services. According to Ms Dunphy, a Probation Officer, housing was always a challenge for Ms Walker because she did not work well in shelters or with large groups of people.

56Ms Walker would not report regularly. Ms Dunphy recognized Ms Walker's many needs and challenges and allowed her to report on an as need basis so long as it was at least two times per month. There was limited telephone contact. Ms Walker would not abide by Ms Dunphy's condition.

57Probation records indicate Ms Walker was not amenable to community supervision, would not take responsibility for her actions, would not attend for appointments and was often angry.

58As noted in Exhibit 23(a) Ms Walker, by way of a letter to probation services, advised she did not want to abide by any conditions of her probation.

59According to the evidence of Probation Officer, Glen Johnson, Ms Walker was classified as a high-risk case. Mr. Johnson testified Ms Walker did not want to abide by her probation conditions. Ms Walker sent a letter to the probation office advising she no longer wanted to be on probation and wanted to stay in custody. The letter was marked as Exhibit 23(b) on the application.

60Marissa Levene testified that Ms Walker called her from Vanier Correctional Centre for Women to advise her that she did not want to report to a probation officer and wanted to remain in the institution. Ms Levene tried to develop a relationship with Ms Walker. There was discussion around housing and mental health initiatives. Ms Walker advised Ms Levene she wanted to arrange for her own mental health counselling. Ms Levene attempted to work with Ms Walker to permit this. Things broke down because Ms Walker was non-compliant. She disrupted meetings at the probation office and was often angry at the probation officers and staff.

61Ms Walker was consistently classified as high risk. This meant that a great deal of management was required on the part of probation services.

62There would be very brief periods of time where Ms Walker would report and follow up with counselling and housing recommendations. According to the evidence of Terence Murray, these periods were very few and far between. According to probation records, it was more the norm that Ms Walker refused to comply with probation conditions, especially those dealing with medical or psychological counselling.

Vanier Correctional Centre for Women Records

63Christine Day is the Operational Manager of the Intensive Management and Treatment Unit (IMAT) at Vanier Correctional Centre for Women. This unit is broken down into individual sections or units.

64Ms Day testified that upon Ms Walker's admission to the institution in relation to the predicate offences, Ms Walker was placed in this unit. She was first placed in C Wing or the segregation unit. An inmate is placed in segregation when there are institutional misconducts, medical observations or administrative holds. Ms Day testified if an inmate is considered a danger to herself, to another inmate or to staff she is placed in this unit. Ms Day testified that as of October 3, 2011 (the day of Ms Day's evidence) Ms Walker spent 675 days in segregation. She has been on suicide watch three times.

65Ms Day further testified Ms Walker spent 49 days in D Wing. This wing houses special needs offenders. An inmate demonstrating erratic behaviour or who refuses to take medication is placed in this unit. An inmate is in their cell 23 hours out of the 24 hours per day. This unit only has single cell occupation. Ms Day testified there is greater access to the psychiatric team at the facility when an inmate is in this wing.

66Once the special needs offenders are stabilized they go to E Wing where there is access to fresh air and the outdoors. There is an arts program and an inmate remains out of her cell for 4-5 hours each day. Ms Walker spent 92 days in E Wing.

67F Wing is the general population wing. There are usually two inmates per cell. The inmates are out of their cell for the majority of the day and have access to the telephone and fresh air. Ms Walker spent 119 days in F Wing.

68Ms Walker was seen by the psychiatric team many times. Ms Day testified daily assessments are done on an inmate to determine whether they should be moved from C, D or E Wing. The Mental Health Team is consulted when doing the assessments.

69Ms Day testified that she and others attempted many times to talk and work with Ms Walker in an effort to help Ms Walker move through the different units. The professionals tried to engage her in talk and other therapies to get her out of her cell. Ms Day testified Ms Walker became comfortable in C Unit and often would not cooperate with initiatives offered to her.

70According to evidence from Correctional Officers Dusome, Scaduto, Price and Wilson, Ms Walker was often non-compliant with directions from correctional staff and exhibited violence towards them or herself. The records from the institution set out many occurrences whereby Ms Walker was non-compliant to authority and exhibited acts of violence and aggression.

Hospital Records

71The hospital records filed as exhibits on this application are many and voluminous. Ms Walker has been admitted to several hospitals in the City of Toronto and the general Toronto vicinity since adolescence. The majority of the admissions resulted from her erratic and self-destructive behaviour.

72Toronto Police Services have conducted countless investigations into Ms Walker's threats of suicide and other violent behaviour. Some of the investigations lead to arrests for criminal activity and others lead to arrests under the Mental Health Act, RSO 1990, c M.7 where Ms Walker was hospitalized and assessed by psychiatric professionals.

73While she was a resident in group homes and other assisted living arrangements she was often admitted to psychiatric facilities in the hopes of receiving proper treatment. These admissions usually lasted a few days and, sadly, were frequent and not successful.

74The hospital records reflect and describe Ms Walker's behaviour. She was often angry, belligerent, suicidal and threatening. She lashed out at nursing staff, other patients and caused damage by destroying property. She often had to be restrained physically by staff and many times was placed in restraints.

75Ms Walker did not believe she required psychiatric help and was regularly non-compliant with advice given to her by psychiatrists and other trained mental health professionals. She refused medication as prescribed. She refused to engage in therapeutic programs and was not interested in any form of aftercare offered to her.

Community Residential Program and Agency Records

76Ms Walker has had the benefit of assistance from many different community agencies. The Children's Aid Society was part of Ms Walker's life from ages 12 to 21. She was placed in foster homes and group homes. As she got older the Children's Aid Society placed her with an organization called Christian Horizons. The trained staff at Christian Horizons tried very hard to assist Ms Walker with independent living. She regularly refused help and any interventions initiated by the staff.

77Ms Walker was connected to the Law and Mental Health Program. The mental health workers and social workers in the program worked very hard to assist Ms Walker with housing, life skills and counselling programs. Ms Walker consistently resisted their efforts and refused to cooperate with programs and counselling.

78All of Ms Walker's records reveal that she received help and service from numerous youth workers, social workers, housing workers, community workers, mental health workers, doctors and psychiatrists for most of her life. The professionals worked very hard to endeavour to assist Ms Walker with her very real needs and challenges. Although the records disclose occasions where Ms Walker demonstrated a willingness to accept help, her willingness was short-lived and usually resulted in non-compliance. Her refusal came in the form of non- reporting to a primary worker, leaving a program, leaving a residence and violence.

PSYCHIATRIC EVIDENCE ON DANGEROUS OFFENDER APPLICATION

Dr. Trina Wilkie

79Dr. Wilkie diagnosed Ms Walker as having borderline personality disorder with anti-social personality traits, borderline intellectual functioning and possibly dysthymic disorder.

80Dr. Wilkie is of the opinion that Ms Walker meets all the criteria that characterizes borderline personality disorder. In her report of August 9, 2010, Dr. Wilkie explains with Ms Walker's history of chronic suicidal ideation, her inability to control her anger, her repeated expressions of homicidal ideation and her inability to function socially, Ms Walker quickly feels helpless and out of control. Dr. Wilkie explains these feelings cause Ms Walker to engage in impulsive expressions of anger.

81In her testimony of October 6, 2011 Dr. Wilkie explained that Ms Walker often experiences spontaneous emotional outbursts that cannot be explained by external reasons. This suggests Ms Walker's aggression is internally driven. Dr. Wilkie testified this is likely due to emotional chaos experienced by Ms Walker. When Ms Walker is in this state, her outburst of anger can be difficult to predict.

82Dr. Wilkie opines that persons diagnosed with anti-social personality disorder are largely untreatable. She testified that those afflicted with both borderline personality disorder and anti-social personality disorder display a constellation of behaviour symptoms such as impulsivity and aggression to self and others. These symptoms can be salient when determining risk. Treatment for anti- social personality disorder would primarily focus on anger management treatment, social skills training and vocational training. She states that anti- aggressive pharmacology may be of some benefit, however, she states in her report that there is little evidence to suggest an individual's level of aggression could be contained.

83Dr. Wilkie testified Ms Walker displays the following:

1. Efforts to avoid real or imagined abandonment;

2. A pattern of unstable and intense interpersonal relationships;

3. Identity disturbance;

4. Recurrent suicidal behaviour;

5. Affective instability due to marked reactivity of mood;

6. Chronic feelings of emptiness;

7. Difficulty controlling anger; and

8. Paranoid ideation of severe dissociative symptoms.

84Dr. Wilkie came to this conclusion after reviewing Ms Walkers' very detailed history. Ms Walker's impulsivity, poor behavioural controls, anger disregulation, lack of participation in structured activities, repeated failure to comply with terms of court orders, lack of social insight and social isolation all factored into Dr. Wilkie's opinion.

85Dr. Wilkie is also of the view that Ms Walker has certain intellectual deficits which affect her cognitive functioning. Dr. Wilkie testified that persons with borderline intellectual functioning have difficulty with adaptive functioning. This means they experience difficulty living day to day. They experience more stressors which impacts their behaviour. According to testing, Ms Walker suffers from deficits in executive functioning. Dr. Wilkie explains, therefore, Ms Walker has difficulty problem solving, planning, and switching strategies when something is not working out for her. Dr. Wilkie is of the opinion these deficits have an impact on risk management. Ms Walker is unable to internally manage her behaviour and consequently is less likely to participate in and comprehend appropriate treatment.

86Dr. Wilkie conducted risk assessment testing. Dr. Wilkie scored Ms Walker at 24 on the PCL-R. Dr. Wilkie testified that evidence collected among the professionals and experts has determined that the PCL-R can be used for both male and female offenders. Dr. Wilkie testified, and her report indicates, that Dr. Penny, PHD psychology, also conducted actuarial testing and scored Ms Walker at 25 on the PCL-R. Dr. Wilkie testified this score is elevated compared to the general population and above average compared to a prison population. Dr. Wilkie testified Ms Walker's score places her in the 73rd percentile, meaning her score was higher than almost 72 percent of female offenders in the sample. This connotes Ms Walker has a higher risk of recidivism.

87Dr. Wilkie also employed the HCR-20. This tool uses structured clinical judgment to assess an individual's risk for future violence. Ms Walker scored 35 out of 40. Within this testing Ms Walker scored full points for previous violence, young age of violence, relationship instability, employment problems, early maladjustment, personality disorder and failure to comply with supervision. On clinical items, Ms Walker scored nine out of 10, which included lack of insight, negative attitudes, impulsivity, and lack of response to treatment. On risk management she scored 10 out of 10 because of her exposure to destabilizers, her lack of personal support, her non compliance with remediation, stress, and the fact that her plans often lack feasibility. Dr. Wilkie, therefore, views Ms Walker as a very high risk for general violent recidivism from a clinical and actuarial perspective.

88Dr. Wilkie testified that throughout the interview with Ms Walker, Ms Walker repeatedly threatened the victim of the predicate offences as well as other persons involved in the trial process. Ms Walker made similar threats towards Ms Thibodeau when she was being tested by Dr. Penny. The threats were of concern to Dr. Wilkie because over the years Ms Walker has made threats to people where evidence shows she has either acted out aggressively to herself or to others in relation to the threats. It was not simply bravado or ranting. Ms Walker's threats in relation to the victim therefore heightened Dr. Wilkie's opinion in relation to Ms Walker's risk to violently reoffend.

89From a psychiatric perspective, Dr. Wilkie concludes Krista Walker meets the criteria of a dangerous offender. Dr. Wilkie testified that as an offender ages, risk will often attenuate. Dr. Wilkie is not optimistic that this is the case for Ms Walker. Historically Ms Walker did not engage in treatment and presently shows no signs of engaging in treatment, therefore, Dr. Wilkie does not believe Ms Walker's behaviours will change, and is, therefore, of the opinion Ms Walker is at risk to violently reoffend in the future.

90Krista Walker has no motivation to participate in treatment. As Dr. Wilkie states, treatment of anti-social personality disorder is often minimal, with strategies aimed at anger management or providing the individual with structured activities. Ms Walker rejects all of this.

91Dr. Wilkie testified the main standard of treatment for borderline personality disorder is Dialectical Behavioural Therapy (DBT). This involves a combination of behavioural therapy in conjunction with pharmacological treatment. The therapy is structured in form and necessitates weekly individual meetings with a therapist and group meetings. A commitment of 1 to 2 years is required for those engaged in the therapy. This means the participants must meet with care providers for a one to two year period. The program is intensive and entirely voluntary.

92Dr. Wilkie testified she is not confident Ms Walker would be able to meet the expectations for this therapy. Ms Walker has never developed a relationship with a mental health professional, she does not work well in groups and is completely resistant to treatment.

93Dr. Wilkie goes further to state that no matter what treatment is offered to Ms Walker, she is unlikely to engage in it. Ms Walker does not believe she suffers from any kind of mental condition and she lacks insight into her actions and behaviours. Dr. Wilkie opines it is unlikely Ms Walker will participate in treatment.

94Dr. Wilkie is further of the opinion Krista Walker cannot be managed and is not an assumable risk in the community. Dr. Wilkie states if Ms Walker remains untreated it is unlikely her manageability in the community will change nor is it likely that her risk to violently reoffend would attenuate.

Dr. Gojer

95Dr. Gojer does not disagree with the diagnosis and prognosis offered by Dr. Wilkie. Dr. Gojer rated Ms Walker at 25 on PCL-R. He describes Ms Walker as "predictably unpredictable". He says she is volatile and is a high risk to cause serious bodily harm to another person.

96After conducting the HCR-20 risk assessment, Dr. Gojer is of the opinion Ms Walker is a high risk to reoffend. He goes on to say she has serious difficulties relating to people and her behaviour has precluded her obtaining stable housing.

97Dr. Gojer is unable to give a definite opinion regarding whether Ms Walker would benefit from a fixed sentence. He agrees Ms Walker requires treatment and therapy in order to minimize any potential risk to the community. He states that although in time, Ms Walker's borderline traits may attenuate and she may be able to learn to regulate her acting out behaviours, he is not optimistic. He also states in his report that he is certain if she were to be given a fixed sentence that, at the end of the sentence, Ms Walker would be certifiable under the Mental Health Act, RSO 1990, c M.7 and would be admitted to a hospital. He is equally confident, however that she would not be kept in the hospital long enough to break her cycle of aggression. This is obviously a concern to him and ultimately to the community given her risk to reoffend.

98Although Dr. Gojer is unfamiliar with, as he calls it "penitentiary options", it is clear from his report he is of the opinion Ms Walker requires intensive treatment and therapy before being released into the community in order to minimize her present risk. It is clear from Dr. Gojer's report that he would like more resources infused into the mental health system so it can properly deal with a person such as Ms Walker, and he laments the possibility of a dangerous offender designation for her. It is, however, clear from his report that unless Ms Walker fully engages in intense treatment and programs, she remains a serious risk to the community and will not be managed otherwise.

Dr. Klassen

99Dr. Klassen was qualified as an expert in forensic psychiatry and an expert in risk assessment. He conducted a psychiatric assessment of Ms Walker in 2004 for the purposes of providing an opinion on NCR for a prior offence. At the time, he diagnosed Ms Walker as suffering from borderline personality disorder, borderline intellectual functioning and dysthymia, which is a chronic low-grade depression.

100Dr. Klassen testified about the symptoms exhibited by persons suffering from this disorder. He described volatility, self-harm and acting out aggressively. He further testified that Dialectical Behavioural Therapy (DBT) is an appropriate treatment and therapy for people with borderline personality disorder. He was of the view that if a patient's commitment to DBT was not present then the symptoms of borderline personality disorder would not attenuate and nothing would change.

CORRECTIONS SERVICE CANADA

Shandy-Lynn Briggs

101Ms Briggs is presently Area Director for the Case Preparation Unit and Toronto East Pool. In her experience and training, Ms Briggs held the long-term offender supervision order file for Canada. Until August 2011, Ms Briggs was the supervisor of the Women's Supervision Unit in Toronto. She was in charge of the portfolio dealing with supervision of all female federal offenders in the Central Ontario District.

102The only female federal institution in Ontario is Grand Valley Institution (GVI). It houses minimum, medium and maximum offenders. It has cottage-style living arrangements and each offender is assessed upon arrival to determine the appropriate level of security to manage her risk. The highest level of security is segregation.

103Several programs are available at GVI. Ms Briggs testified that Dialectical Behaviour Therapy (DBT) is one of them. She testified it is a voluntary treatment program and efforts are made by staff to assist offenders as much as possible to take part in the therapy. Ms Briggs testified that anger management programs are in place and mental health professionals are on staff to assist offenders with any mental health needs.

104Ms Briggs testified about factors the National Parole Board considers regarding possible parole for dangerous offenders serving indeterminate sentences. She testified that persons designated as dangerous offenders are entitled to a full parole hearing seven years from the date of their arrest. She testified that as of October 7, 2011, there were 501 designated dangerous offenders in Canada and 35 are presently residing in the community. Ms Briggs testified that those in the community have demonstrated a reduction in their risk, a meaningful understanding of their offence cycle and have accepted full responsibility for their behaviours.

105Ms Briggs went on to explain the difference between supervising a long-term offender and supervising a dangerous offender in the community. She discussed the significant difference in enforcement of breaches of the law in relation to those subject to a dangerous offender designation and those subject to a long-term offender designation.

Kelly Wilkinson

106Ms Wilkinson is a clinical social worker in the Psychology Department at GVI. She was the DBT therapist at GVI until July 2011. DBT therapy is a six month long therapy with different features. She testified the therapy addresses women who present with borderline personality disorder. She describes that most of the participants display characteristics of self-destructive behaviour, severe emotional disregulation, problems with interpersonal and intimate relationships, poor self-image, chaotic behaviour, impulsive behaviour and high-reactivity and emotional lability. At GVI 10 women can be accommodated to take part in this therapy.

107According to Ms Wilkinson and the Dialectical Behaviour Therapy (DBT) for Women Offenders Information Booklet (Exhibit 30) there are two primary components of DBT:

1. Individual psychotherapy; and

2. Skills training which is usually done in group sessions.

108According to Exhibit 30 and the evidence of Ms Wilkinson, DBT therapy is completely voluntary. An inmate housed in segregation or in maximum security will not be offered DBT because of the many expectations of the therapy. The professionals in the institution must assess the inmate's overall situation in order to determine whether DBT would be an appropriate therapy. If she is likely to be aggressive or act out towards another or is unable to maintain personal hygiene and personal care the therapy would most likely not be suited to her. The offender must want to take part in the therapy and must be agreeable to committing to all the modules DBT therapy offers.

109Ms Wilkinson testified that GVI offers other mental health services to inmates. She testified these services are also voluntary. An offender cannot be forced to take part in psychological counselling but the professionals at the institution offer encouragement to offenders to take part in order that their mental health needs are adequately addressed.

DANGEROUS OFFENDER REGIME

Overview

110The Dangerous Offender proceeding is part of the sentencing process and the sentencing judge must consider the fundamental purposes of sentence as set out in s.718 to 718.2 and, in particular, the less restrictive sanction that will meet that purpose. See: R. v. Johnson, 2003 SCC 46, [2003] S.C.J. No. 45 at paras. 21-24 and 28 (S.C.C.).

111The preventive detention scheme embodied in the Dangerous Offender Legislation has survived constitutional scrutiny because it defines a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive detention. See: Lyons v The Queen, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 (S.C.C.) at para. 44.

112The Supreme Court of Canada in R. v. Johnson, supra, dealt with the 1997 reformulation of the dangerous offender regime and described the long term offender provision as expanding the sentencing options available to a judge who was satisfied that the dangerous offender criteria had been met. However, instead of being confronted with the stark choice between an indeterminate sentence and a determinate sentence a judge could now consider the additional possibility that a determinate sentence followed by a period of supervision in the community might adequately protect the public.

113When the offender meets the requirements of s.753(1), the requirement imposed in Johnson that the court conduct a thorough enquiry applies, albeit at the sentencing stage once the dangerous offender designation has been made. Subsection753(4.1) requires an indeterminate sentence unless there is a reasonable expectation that a lesser measure will adequately protect the public.

114While the dangerous offender designation is mandatory if the criteria in s.753(1) is met an indeterminate sentence does not automatically follow. The judge may impose a sentence of detention for an indefinite period; impose a sentence on the predicate offences which must be a minimum sentence of two years and order that the offender be subject to a long-term supervision order that does not exceed 10 years or impose a sentence for which the offender was convicted.

115In determining the appropriate sentence for a dangerous offender, the court must consider s.753(4.1) which provides as follows:

The Court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

116Under this regime it appears that if there is no possibility of adequately protecting the public, then the sentence will be indeterminate. If there is a reasonable possibility that a sentence with a long-term sentence order will adequately protect the public, then a judge will order that sentence and finally, if there is evidence that the original sentence will adequately protect the public, then the sentence alone will suffice. The jurisprudence dealing with reasonable possibility of eventual control in the community will be valued in interpreting the standard of adequately protecting the public. The court in R. v Egan, [2009] O.J. No. 384 (O.S.C.J.) after designating the offender as dangerous was left to consider whether a lesser measure under s.753 would adequately protect the public. The court examined evidence dealing with the offender's treatability, past supervision in the community and age/burn-out to determine reasonable possibility of eventual control in the community.

117In R v. Johnson, supra, at paras. 29 and 32, the Supreme Court instructed judges to consider sentencing options other than an indeterminate sentence unless there are no other means to protect the public adequately from the threat of harm.

Purpose of the Legislation

118The dominant purpose of the dangerous offender legislation is to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person and there is a real danger to life or limb. In the absence of such a danger, there is no basis upon which to sentence an offender except in accordance with ordinary sentencing principles. See: R. v. Johnson, 2003 SCC 46, [2003] S.C.J. No. 45.

Burden Of Proof

119The burden of proof is on the Crown to prove all elements contained within s. 753(1)(a)(b) beyond a reasonable doubt. Aggravating factors relied upon by the Crown must also be established beyond a reasonable doubt as established in R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368 (S.C.C.).

Dangerous Offender Sections

120A dangerous offender application under section s. 753(1) relates to either violent offences or offences of a sexual nature. Generally, violent offences can include a longer and unenumerated group of predicate offences so long as they can be characterized as serious personal injury offences under s.752 (a). Under S. 753(1) (a) the Crown must first prove that the predicate offence(s) is a serious personal injury offence, a fact that has been conceded in this case.

121The Crown must then establish that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. The threat must be demonstrated on the basis of evidence establishing: a pattern of repetitive behaviour, a pattern of persistent aggressive behaviour or behaviour of a brutal nature. The Crown need only prove the threat under one of these subparagraphs. See: R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. (3d) 353 (Ont.C.A.) leave to appeal allowed (1985), 25 C.C.C. (3d) 288n (S.C.C.) The Crown concedes that subparagraph (iii) is not applicable in this application.

A Pattern of Repetitive Behaviours and a Likelihood of Causing Death, Injury or Severe Psychological Damage

122Subparagraph (1) provides: 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.

123The pattern must be proved beyond a reasonable doubt. See. R. v Jackson (1981), 1981 CanLII 3281 (NS CA), 23 C.R. (3d) 4 (N.S.C.A.) at para.18. The predicate offences must form part of this pattern. Unlike subparagraph (ii) proving the pattern alone is not sufficient. There must also be a likelihood of endangerment to life, body or psychological well-being of others. Therefore, two elements must be shown: the pattern that existed in the past and the likelihood that it exists in the future.

124In R. v. N. (L.), 1999 ABCA 206, [1999] A.J.No. 753 (Alta. C.A.) the Court stated the past conduct must demonstrate a pattern by including the following elements: the behaviour must be criminal behaviour, there must be violence, endangerment or the likelihood of either, there must be lack of restraint (for a s.753 (1) (a) (i) application) or substantial indifference (for a s. 753(1) (a) (ii) application); and there must be a relatively high level of intractability.

125The offences, including the predicate offences must contain significant similarities with each other. There may be differences but the core of the similarities must exit. The conduct that forms the basis of the pattern must be repetitive and constant. See: R. v. Smyth, [2007] O.J.No.1946 at paras.61-62 (O.S.C.J) and R. v. Desjarlais, 2008 ABQB 365, [2008] A.J.No.721 at paras.81-82. (Alta. Q.B.).

126Similarity may be found in the types of offences, or in their circumstances, that is the degree and nature of the violence or aggression, threatened or inflicted. To qualify as part of the pattern the conduct must demonstrate a failure to restrain the relevant behaviour in the past, a failure that has led to death, serious injury, severe psychological damage, or at least the likelihood of this level of harm. It must also demonstrate the likelihood of this level of unrestrained conduct causing death, injury or severe psychological harm in the future. Likelihood in this context means more than a mere possibility. See: R. v. Smyth, supra at paras.63-66; R. v. Neve (1999), 1999 ABCA 206, 137 C.C.C. (3d) 97 at paras. 111, 113-114. (Alta.C.A.)

127While the court may consider past criminal acts, relevant extrinsic evidence or psychiatric opinions, the latter two cannot be used as the basis of the actual pattern envisaged under s.753 (1) (a) (i) and s. 753(1) (a) (ii). That evidence can only be used to explain the pattern. In other words, the threat requirement in subparagraph (a) must rest on the concrete foundation of past behaviour.

128In R. v Dow, 1999 BCCA 177, [1999] B.C.J. No. 569 (C.A.), the court held that the section is satisfied if a) there is a pattern revealed by the repetitive behaviour that is present in the predicate offences; b) the pattern contains an element that the dangerous behaviour was not restrained in the past and c) the pattern shows a likelihood that the same behaviour will not be restrained and will cause future death or injury.

A Pattern Of Persistent Aggressive Behaviour Showing Substantial Indifference On The Reasonable Foreseeable Consequences

129Subparagraph (ii) provides: 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,

130The pattern under subparagraph (ii) is one of persistent aggressive behaviour and is similar to the pattern under subparagraph (i). Both patterns rely upon a threat requiring the Crown to prove behaviour based on repetitious acts committed in the past. As in R. v Langevin, (1984), 1984 CanLII 1914 (ON CA), 39 C.R. (3D) 333 (Ont. C.A.) the pattern must either show a similarity between past acts or a significant number of non-identical acts.

131There is a difference, however, between the two subparagraphs and (ii) focuses on a more specific pattern of persistent aggressive behaviour in contrast to the broader notion of repetitive behaviour. The behaviour under this subparagraph must show a substantial degree of indifference with regard to the consequences of the offender's behaviour.

CROWN SUBMISSIONS

132The Crown argues Ms Walker should be designated a dangerous offender. The Crown relies upon s. 753(1) (a) (i) and s. 753(1) (a) (ii). Ms Crawford argues that Ms Walker, over the course of her life, has demonstrated a pattern of repetitive behaviour which has shown a failure on her part to restrain her behaviour when there is a likelihood that death, injury or severe psychological damage could occur to others. Ms Crawford argues the predicate offences forms part of the pattern.

133Ms Crawford submits that in relation to s. 753(1)(a)(i) I must consider the knife attacks on Susan Burrill and Joanne Hancock and give specific weight to the underlying factors surrounding the convictions involving Jeanette Richard and Laurie Ann Thibodeau. Three out of four of these women suffered injuries as a result of Ms Walker's actions.

134The Crown further argues the evidence is replete with examples of threats made by Ms Walker while armed with a knife or other weapon. Ms Crawford argues that for the whole of Ms Walker's life she has engaged in repetitive violent behaviour often resulting in either physical or psychological injury to others. The Crown argues the acts of violence are often a consequence of Ms Walker's impulsitivity.

135Ms Crawford submits that both Dr. Gojer and Dr. Wilkie describe an unpredictability to Ms Walker's behaviour. Both psychiatrists agree that Ms Walker is diagnosed as having borderline personality disorder. They agree she does not participate well in groups; she has an absence of personal supports and does not comply with community dispositions and programs. Ms Crawford argues these factors all increase Ms Walker's risk of re-offending.

136The Crown submits that Ms Walker's own evidence demonstrates a likelihood of reoffending. Ms Walker testified when she gets angry and fed up she wants to hurt people.

137The Crown also argues Ms Walker has engaged in a pattern of persistent aggressive behaviour her whole life. The Crown submits that all the records, hospital and otherwise set out repeated and persistent acts of aggression.

138The Crown argues the records and evidence show that Ms Walker continually harbours anger and animosity towards the victims of her assaultive behaviours. She continues to blame the victims, is indifferent to the victims and takes no responsibility for her actions.

139The Crown further argues Ms Walker will often resort to violence when she is faced with a stressful situation or she is perceived to be insulted.

140The Crown argues, therefore, that Ms Walker has met the criteria for a dangerous offender designation and ought to be sentenced to an indeterminate sentence. Ms Crawford argues Ms Walker is resistant to treatment, will not take part in structured activities, has a history of non-compliance with court and community orders, has no insight into her behaviour and refuses pharmacological intervention. Ms Walker has never once been successful at any treatment plan arranged for her.

141The Crown argues that if Ms Walker does not engage in treatment in relation to her psychiatric diagnosis of borderline personality disorder there is a significant risk to the protection of the public. Ms Walker will continue to be impulsive, aggressive and unpredictable. Ms Crawford argues that history demonstrates Ms Walker has refused all help. She continues to refuse help and continues to behave in an aggressive manner. The Crown argues that in order to protect the public Ms Walker ought to be subject to an indeterminate sentence.

KRISTA WALKER

142Ms Walker refused to make submissions on the application. She was given many opportunities but on each occasion refused.

AMICUS CURIAE

143Amicus concedes the Crown has proved a pattern of repetitive behaviour on the part of Ms Walker of which the predicate offences forms a part. She agrees the pattern shows a failure on Ms Walker's part to restrain her behaviour which indicates a likelihood that in the future Ms Walker could cause death or injury or severe psychological harm to a person as a consequence of her failure to restrain her behaviour.

144Amicus Pineau further concedes the Crown has established that Ms Walker has engaged in a pattern of persistent aggressive behaviour which demonstrates a substantial degree of indifference in relation to the reasonable foreseeable consequences to others.

145Ms Pineau agrees Ms Walker has exhibited dangerous and anti-social behaviour from age 11 to the present. She agrees Ms Walker suffers from uncontrollable rages which can last for long periods of time. She agrees Ms Walker does not empathize with the victims of her violence and often threatens them with further violence.

146She further agrees that Ms Walker is often resistant to orders, court or otherwise and is oppositional regarding the suggestion of treatment or counselling. Ms Pineau argues that Ms Walker's personal and medical circumstances are very sad and she wishes she were in a position to provide evidence of a facility that would treat Ms Walker. She cannot. Ms Pineau submits that in light of all the evidence coupled with Ms Walker's resistance to treatment she cannot disagree with the Crown's submissions regarding sentence.

ANALYSIS

147Krista Walker is a 37 year old single woman who has lived a tortured and troubled life. Her troubles began at 5 months of age when she contracted meningitis leaving her with brain damage. She was moved between her mother and her father at a very young age and was never able to establish a loving relationship with either of them. Although she has had some contact with her father and siblings throughout the years, she is mostly alone in the community.

148The Children's Aid Society of Toronto (CAS) was the first of a long list of community agencies to become involved in Ms Walker's life. CAS and others made enormous efforts to assist Ms Walker with housing, with mental health needs and with general life coping skills. She had the benefit of countless community service workers, housing workers, mental health workers, social workers, psychiatrists and psychologists. She has been admitted to hospitals on multiple occasions often as a result of her threats of self-harm and suicide. She has been subject to several psychological and/or psychiatric assessments and other mental health initiatives.

149She has had no real employment. When not in jail Ms Walker is often homeless. There have been many attempts to address housing but Ms Walker resists them all. She does not like to live in a group setting and is unable to live independently because she cannot care for herself. She is impulsive, aggressive and becomes frustrated very easily. When frustrated she often acts out violently. She does not believe she needs assistance and becomes angry whenever there is discussion surrounding her mental health needs. Ms Walker appears to be in a perpetual state of crisis and chaos.

150Krista Walker has three prior convictions for violence. In 2005 she was convicted of aggravated assault. Ms Walker got angry at one of her neighbours, Jeanette Richard, believing Ms Richard was harassing her. She confronted Ms Richard by attending her home with a knife. Ms Walker confronted her and stabbed her in the hand causing the knife to go through Ms Richard's hand. When Ms Richard tried to flee Ms Walker chased her while still holding the knife. After spending 263 days in pre-sentence custody Ms Walker was placed on probation for three years with conditions, one of which was to stay away from the victim.

151Over the years to follow Ms Walker continued to hold resentment towards Ms Richard. She frequently told people she wished the victim was dead and that she was going to hurt and/or kill her when she got the chance. In 2005 Ms Walker was convicted on two separate occasions of threatening death to Ms Richard. She received 7 days on April 27, 2005 and then on December 16, 2005 she was sentenced to 12 months incarceration. Ms Walker is completely indifferent as to how her actions and words have impacted the life of Jeanette Richard.

152Similarly, in relation to the predicate offences, Ms Walker at the time of the offence, shortly after the offence and during the course of the dangerous offender application continued to display a cold indifference regarding the impact her actions had upon Ms Thibodeau.

153Ms Walker blames others for her present circumstances and shows an unwillingness to accept responsibility for her actions.

154Ms Walker is often overcome with rage and anger. This is clearly demonstrated in the many institutional records filed on the application. She threatens suicide, she engages in self-harming behaviour and consistently threatens and assaults those whom she believes are challenging her. She is, as Dr. Gojer states in his report of 2011-09-05, predictably unpredictable. Ms Walker herself told the Court that when she gets angry she goes into a state of rage and wants to hurt others.

155She often carries or arms herself with a knife when angry and frustrated. Regarding the predicate offences, it is noteworthy that at the time of the offence, Ms Walker carried a knife in her purse believing she would need it in order to protect herself from people who regularly wanted to harm her.

156Ms Walker over her lifetime has assaulted and threatened people with a knife and other objects. She stabbed her group home worker Susan Burrill in the eye with a knife. She threatened another group home worker, Joanne Hancock with a knife. She told another social worker she was going to stab her roommate with a knife. She often held a knife to her own body threatening death. She threatened Nadia Silva with a piece of wood. She threatened police with a knife when officers attended to investigate her suicide attempt. She stabbed Ms Richard through the hand with a knife causing her significant injury. In relation to the predicate offences Ms Walker's behaviour escalated to the point of stabbing Ms Thibodeau in the chest causing serious injury. Ms Walker engaged in this act because she believed Ms Thibodeau provoked her.

157When hospitalized Ms Walker regularly threatened and assaulted nurses and other patients. She threatened to burn down buildings and hospital units. She threatened people when she perceived she had been wronged by them. Subsequent to Ms Walker's guilty plea on the predicate offences, she was convicted of threatening her former lawyer. Ms Walker perceived the lawyer interfered in an ongoing case involving Ms Walker. Throughout these proceedings she engaged in threatening behaviour towards Amicus, the Crown Attorney and other court officials. She refused to come to court and when ordered to attend she on at least two occasions continually kicked the prisoner's box. She was often belligerent and spat at various people in the courtroom.

158The records reflect that Ms Walker has no insight into her behaviour. The evidence and records also suggest there is a complete lack of empathy and/or remorse on Ms Walker's part for her behaviour and actions.

159Ms Walker is resistant to any type of intervention. She is non-compliant with court orders and refuses to engage with mental health professionals. She refuses to take part in any treatment plans designed for her. She does not believe she requires assistance and simply wants to be left alone.

160While incarcerated at Vanier Correctional Centre for Women she demonstrates an unwillingness to engage in programs and, when frustrated, she resorts to violence. She is regularly housed in the IMAT unit and according to the evidence she is often placed in segregation due to her behaviour. She will not engage with mental health professionals at the institution and regularly threatens suicide.

161Krista Walker was diagnosed by Dr. Wilkie as having borderline personality disorder with anti-social traits. Dr. Willkie was of the opinion that Ms Walker displayed no interest in engaging in treatment for this disorder. Dr. Wilkie states, like many borderline personality disordered people, Ms Walker becomes frustrated from external causes, causing emotional outbursts. What is more problematic according to Dr. Wilkie however, is that Ms Walker can often become angry because of internal forces or chaos in her own mind. This too will lead to emotional and/or violent outbursts. Ms Walker's actions and reactions as a result of frustration she experiences from internal forces, therefore, is always unpredictable.

162Both Drs. Wilkie and Gojer agree that Ms Walker's risk to reoffend generally and violently is high. Dr. Wilkie quite fairly stated in her report that although Ms Walker can engage in threatening behaviour simply out of frustration, there are many examples of threats made over her lifetime that are accompanied by violence. This is concerning and problematic because the consequences of Ms Walker's threats cannot be predicted which increases her risk to reoffend.

163Other factors that point to Ms Walker's risk of re-offending are as follows:

1. Her failure to comply with supervision orders;

2. Her failure or inability to work with and follow the direction of care providers, support workers and community programs;

3. Her failure to participate in structured activities;

4. Her lack of personal supports in the community;

5. Her failure to accept psychiatric/psychological or any other counselling;

6. The impact of the border-line personality disorder and anti-social personality traits diagnosis on her ability to meaningfully participate in treatment;

7. Her lack of insight into her mental health and personal needs;

8. Her complete indifference towards how her actions have impacted the victim of the predicate offences and the victims of her many other violent acts;

9. Her repeated stated intention to harm herself and others; and

10. Her aggressive and unpredictable behaviour and her inability to control her anger and rage.

164Having regard to all of these factors in combination with Ms Walker's tragic history, I find the Crown has established beyond a reasonable doubt that Ms Walker constitutes a threat to the life, safety or physical or mental well-being of other persons by engaging in a pattern of repetitive behaviour, of which the predicate offences forms a part demonstrating a failure on Ms Walker's part to restrain her behaviour where there is a likelihood of causing death or injury to others, or inflicting severe psychological damage on others, through failure in the future to restrain her behaviour.

165I further find for the above reasons that under s. 753(1) (a) (ii) the Crown has established beyond a reasonable doubt that Ms Walker through her many prior acts of aggression and violence demonstrates a pattern of persistent aggressive behaviour, of which the predicate offences forms a part, showing a substantial degree of indifference on Ms Walker's part regarding the reasonable foreseeable consequences to others of her behaviour.

166I find, therefore, that Krista Walker meets the criteria to be designated a dangerous offender.

167Ms Walker requires extensive psychiatric and psychological counselling. She requires intensive treatment to assist her in coping with day-to-day life. Ms Walker unfortunately refuses any assistance. She has consistently refused help from social workers in the community and she refuses assistance from social workers and other mental health professionals while incarcerated. Although there is a specific therapy, (DBT) offered in the federal system for women suffering with borderline personality disorder, unless Ms Walker develops insight and voluntarily engages in the therapy, it will be of no benefit to her. At this stage there is nothing to suggest Ms Walker will participate in the therapy.

168This Court has a great deal of empathy for Ms Walker. Her personal circumstances are tragic. She is alone. She is angry and she is sad. At times her behaviour is childlike. She has temper tantrums that can sometimes be categorized as silly but as Dr. Gojer, Dr. Wilkie and Dr. Klassen state, Ms Walker is predictably unpredictable. Her episodes of violence are frequent and appear to be escalating. Her risk to the public therefore is high. I cannot conclude, therefore, that there is a reasonable possibility of eventual control of Ms Walker's risk in the community. I am persuaded the only sentence I can impose to adequately protect the public is an indeterminate sentence.

169The National Parole Board shall, as soon as possible after the expiration of seven years from the day on which Krista Walker was taken into custody for the predicate offences and not later than every two years after the previous review, review the condition, history and circumstances of Krista Walker for the purpose of determining whether she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.

Released: March 21, 2012

Signed: Justice Rebecca Rutherford